STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-251
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liz Vladeck, General Counsel, attorneys for respondent, by Lindsay VanFleet, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services provided by Access to Success, LLC (Access to Success) for the 2024-25 school year. The district cross-appeals, arguing that the IHO lacked subject matter jurisdiction over the parent's claims and erred in awarding pendency services. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The CSE convened on May 9, 2024, determined the student was eligible to receive special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of May 23, 2024 (see Parent Ex. C).[1] The May 2024 CSE recommended that the student receive three periods of direct group special education teacher support services (SETSS) per week, one 30-minute session of group speech-language therapy per week, one 30-minute session of individual speech-language therapy per week, and two 30-minute sessions of individual occupational therapy (OT) per week (id. at p. 15).[2]
On May 22, 2024, the parent completed a district form indicating that she had placed the student in a nonpublic school at her own expense and wanted the student's special education services to continue to be provided for the next school year (Parent Ex. F)
In a letter dated August 22, 2024, the parent notified the district that the student did not have a SETSS provider, that she had obtained a provider to start services on September 1, 2024 at an enhanced rate, and that she would seek district funding for the costs thereof through a due process proceeding (Parent Ex. E).
The parent signed a letter agreement with Access to Success dated October 7, 2024, wherein Access to Success would provide the student with SETSS three hours per week at the rate of $200 per hour beginning on September 1, 2024 and ending on June 30, 2025 (Parent Ex. H).
A. Due Process Complaint Notice
In a due process complaint notice dated October 8, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). The parent asserted that the student's last agreed upon program was the May 2024 IESP, which recommended SETSS, speech-language therapy, and OT (id. at p. 1). The parent asserted that the district failed to implement the student's services for the 2024-25 school year, which forced the parent to find her own providers to implement the student's services (id. at pp. 1-2). Among other relief, the parent requested pendency services, that the district be ordered to directly fund the student's SETSS pursuant to the parent's contracted rate, and "compensatory time at the contracted rate for services that were not provided due to lack of implementation with no end date" (id. at p. 2).
In a due process response dated October 16, 2024, the district denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and provided a supplemental notice which contained the recommendations from the May 2024 IESP (see Dist. Response to Due Process Compl. Not.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 27, 2025 (see Tr. pp. 1-32). In a decision dated March 27, 2025, the IHO found that the district's submission of just documentary evidence was not sufficient to meet its burden to demonstrate that it offered the student a FAPE for the 2024-25 school year (IHO Decision at p. 5).[3]
Regarding the unilaterally-obtained services, the IHO indicated that the parent presented testimony from the co-owner of Access to Success and the student's progress report (IHO Decision at p. 6). The IHO held that "there was little to no evidence of how [Access to Success] through the SETSS provider addressed" the student's needs (id.). The IHO noted that the progress report "generally described the methods used as 'teacher assessments, observation of assignments, informal teacher/provider assessments, writing rubrics, informal comprehension checks, written assessment tools, and assessment tools'" (id.). The IHO determined that the terms were "general and vague" and lacked "specifics or details of the methodology" used to address the student's deficiencies (id.). Therefore, based on the totality of the circumstances, the IHO held that there was insufficient evidence to support a finding that Access to Success provided the student with specially designed services to address his unique needs for the 2024-25 school year (id.).
The IHO noted that although she found that the unilaterally obtained services were inappropriate and it was therefore unnecessary to address equitable considerations, she would address them (IHO Decision at p. 6). The IHO held that equitable considerations did not favor the parent's request for funding because the rate charged by Access to Success for SETSS was "unsubstantiated and excessive" (id.). Based on the evidence submitted by the district, the IHO found that had she awarded funding for SETSS, the IHO would have reduced the award and ordered the district to directly fund the student's SETSS as a rate of $125 per hour for the 2024-25 school year (id.).
In addition, the IHO denied the parent's request for compensatory education (IHO Decision at p. 8). The IHO found that the parent failed to establish that "a deficit was created" by the district's failure to provide a FAPE and that any compensatory education services would address that deficit (id.). The IHO also noted that the parent failed to present any evidence to support her request for compensatory education and failed to establish that the student did not receive special education services for the 2024-25 school year through another agency or the nonpublic school (id.).
For pendency, the IHO found that the district's argument that the student was not entitled to pendency was not persuasive (IHO Decision at p. 8). The IHO held that pendency lies in the May 2024 IESP and ordered the district to fund the student's pendency services from the date of the filing of the due process complaint notice through date of the IHO's decision (id.).
IV. Appeal for State-Level Review
The parent appeals. The parent notes that IHO properly held that the district failed to offer the student a FAPE; however, the IHO erred in finding that the unilaterally obtained services were inappropriate for the 2024-25 school year. The parent contends that the IHO incorrectly put the burden on the parent to demonstrate methodologies used by the private provider to assess the student and that the hearing record supports a finding that the unilaterally obtained services were specially designed to address the student's unique needs. The parent also asserts that the IHO erred by reducing the parent's requested rate from Access to Success. The parent argues that the hearing record details a breakdown of the overhead costs, which justifies the rate requested by the parent. Regarding pendency, the parent contends that the IHO erred by not signing the pendency documents, which according to the parent, precludes pendency from being in place.
In an answer, the district contends that the IHO properly found that the parent failed to prove that the unilaterally obtained SETSS were appropriate and, in alternative that the rate should be reduced to $125, in the event Access to Success was found appropriate by the undersigned. The district cross appeals the IHO's order directing that the district fund the student's services from Access to Success as the student's pendency placement. Lastly, the district contends that the IHO lacked subject matter jurisdiction to hear the claims filed by the parent.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the parties' dispute concerning subject matter jurisdiction. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). While this issue was not addressed at the hearing or in the IHO's decision, a lack of jurisdiction "can never be forfeited or waived" U.S. v. Cotton, 535 U.S. 625, 630 [2002].The district argues in its cross appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to IESP implementation claims.
In numerous decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-220; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[6]
Concerning students who attend nonpublic schools, Education Law § 3602-c provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (seeApplication of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[7] In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.[8]
After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provides that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[9]
In the cross appeal, the district contends that the Education Law does not provide a right to bring a complaint for the implementation of IESP claims or enhanced rate services. Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[10] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 (2d Cir. 2009); quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought injunctive relief of a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[11] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's request to dismiss the parent's claims due to a lack of subject matter jurisdiction must be denied.
B. Pendency
Turning to the parties' dispute over pendency, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[12] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Here, the parent argues that pendency cannot be implemented because the IHO did not "sign pendency documents."[13] The district asserts two arguments in its cross appeal. I am not persuaded by the district's argument that parents who seek dual enrollment services for their children pursuant to Education Law § 3602-c are categorically ineligible for pendency if they file a complaint seeking a due process hearing. Education Law § 3602-c provides for review of IESPs pursuant to § 4404, and Education Law § 4404 provides that a student shall remain in his or her then-current educational placement "[d]uring the pendency of any proceedings conducted pursuant to" Education Law § 4404 (Educ. Law § 4404[4][a]; Application of a Student with a Disability, Appeal No. 17-034). The New York Court of Appeals confirmed that
[New York State Education Law §] 3602–c authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public school programs…The statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school.
(Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]).
However, in a second argument, the district also asserts that the parent rejected the public provision of pendency services by contracting for only the provision of SETSS from Access to Success. That argument is more persuasive under the facts in this case. It is undisputed that the parent unilaterally obtained SETSS from Access to Success without the consent of school district officials, and there is no evidence any prior administrative decisions finding that Access to Success provided appropriate unilateral services to the student that could arguable serve as a basis for funding the services under pendecy.
The Second Circuit has explained that a parent may not unilaterally move a student to a preferred placement and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35). The Court stated that:
[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.
(id. at 534).
In short, the parent's decision to seek public funding for the student's unilaterally-obtained SETSS, which was clear from the parent's due process complaint notice, constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]). The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parent had not been found appropriate in any administrative proceeding. When the parent unilaterally obtained SETSS from Access to Succes, the parent did so at her own financial risk and can only obtain funding for the costs if the services offered by the board of education are found to be inadequate or inappropriate, the placement and services selected by the parent are found to be appropriate, and equitable considerations are found to support the parent's claim (Ventura de Paulino, 959 F.3d at 526; see Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70).
Thus, the IHO's order directing the district to fund the student's services as a pendency placement must be vacated. Instead it must be determined whether the parent may recover the costs of Access to Success as appropriate unilateral services.
C. Unilaterally Obtained Services from Access to Success
Turning to the substance of the parties' dispute, neither party has appealed the IHO's finding that the district failed to offer the student a FAPE for the 2024-25 school year nor the denial of compensatory education (IHO Decision at p. 5). 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]).
The crux of the dispute between the parties relates to the appropriateness of the SETSS provided to the student at the student's general education nonpublic school during the 2024-25 school year. Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied. In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Access to Success for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[14] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Student's Needs
While not in dispute, a brief discussion of the student's needs facilitates discussion of the issue to be resolved, namely whether Access to Success provided specially designed instruction to address the student's unique needs during the 2024-25 school year. A review of the hearing record shows that in developing the student's May 9, 2024 IESP the May 2024 CSE considered the results of a January 4, 2023 psychoeducational evaluation conducted when the student was five years old and attending kindergarten (Parent Ex. C at pp. 1-2). As reflected in the IESP, administration of the Wechsler Preschool and Primary Scale of Intelligence-Fourth Edition (WPPSI-IV) yielded a full-scale IQ (FSIQ) of 100, which fell within the average range, and the student performed within the average range on the verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed indices (id. at pp. 1, 2). The IESP also indicated the student's academic functioning was assessed using the Wechsler Individual Achievement Test, Fourth Edition (WIAT-4) (id. at pp. 1-2). On the word reading subtest the student identified letters, matched letters to sounds, and read aloud a list of regular and irregular words that increased in difficulty, without a time limit (id. at p. 2). He obtained a standard score of 88 (21st percentile), in the low average range (id. at p. 2). On the reading comprehension subtest, the student obtained a standard score of 86 (18th percentile), in the low average range (id.). He was able to match two words to pictures; however, when presented with short sentences and passages, the student stated, "I don't know how to read" (id.). With regard to the spelling subtest which measured written spelling from dictation, the student obtained a standard score of 79 (8th percentile), in the very low range (id.). He was able to spell his name and two out of four presented letter sounds (id.). He was unable to spell any simple words (id.). Next, the IESP indicated that on the numerical operations subtest, which measured the student's written math calculation skills, the student obtained a standard score of 99 (47th percentile), in the average range (id. at p. 3). The student was able to count objects, distinguish numbers from letters, write numbers, and identify the addition sign (id.). He was also able to solve a few addition problems within ten (id.). The student could not solve subtraction problems (id.). On the math problem solving subtest, the IESP noted the student obtained a standard score of 88 (21st percentile), in the low average range (id.). He was able to identify the concepts "longest," "more," "less," and "same" (id.). The student was also able to identify shapes and numbers and read a simple chart (id.). He had difficulty identifying numerical order, finding a measurement, and solving word problems (id.).
In addition, the May 2024 IESP included grades from a second quarter 2024 (presumably grade one) report card, identifying that the student had a grade of 79 in English language arts (ELA), 93 in science, 97 in social studies, and 79 in math (Parent Ex. C at p. 1). MAP Testing indicated that the student performed within the 11th percentile (24th percentile of first graders) in math and in the 82nd percentile (30th percentile of first graders) in reading (id.).
In addition to the student's aforementioned performance on standardized testing, the May 2024 IESP included a narrative description of the student's academic skills (Parent Ex. C at pp. 4-6).[15] With regard to reading, the IESP indicated the student's decoding skills were significantly below grade level (id. at p. 4). The student had the ability to decode but not at a fluent level (id. at p. 6). The IESP stated that as a reader, the student enjoyed listening to stories and his comprehension of read-alouds was on par with other first graders (id. at p. 4). He was able to make text to self-connections and retell stories accurately including important details (id.). However, the student's grade-level comprehension did not carry over to his own reading, and therefore his comprehension was gravely impacted by his challenges with decoding (id. at pp. 3, 4). The IESP noted that when reading independently, the student was below a first-grade reading level and had difficulty with determining the main idea and supporting details, sequencing, and comparing and contrasting (id. at pp. 4, 6). He tried to sound out unfamiliar words but struggled to blend multiple sounds together accurately (id. at p. 4). The student identified CVC words independently with 50 percent accuracy and could succeed at reading vowel consonant e words with assistance and reminders of the rule (id. at pp. 4-5). The IESP noted that reading other words with long vowel patterns was still a struggle for him (id. at p. 5). Using a list of 100 basic sight words, the student could read 55 words independently (id.).
Turning to writing, the May 2024 IESP indicated the student showed an interest in storytelling and enjoyed putting events from his own life down on paper (Parent Ex. C. at p. 5). He had an understanding of sentence structure and could verbalize the rule that sentences start with capital letters and end with periods, but implementing these grammatical rules when writing was a struggle for him (id.). According to the IESP, spelling presented an additional difficulty for the student (id.). If asked to spell a familiar word orally, he was capable but when writing sentences, that same word would be misspelled when used in context (id.). The IEP noted the student's sentences were very short and lacked detail (id.). If asked to free write, he tended to start each sentence the same way, only changing the last word or two of the sentences (id.).
Next, the IESP indicated that math was a relative strength for the student (Parent Ex. C at pp. 4, 5). He was able to add and subtract numbers accurately up to ten, recognize shapes and their attributes, and was successful when counting tens and ones (id. at p. 4). According to the IESP, math computation was the student's greatest academic strength; however, at times, math comprehension could present a challenge as he struggled to determine which operation to use when solving word problems (id. at pp. 4, 5). Still, the IESP noted the student tended to have better confidence levels in math and could work confidently in that subject (id. at p. 7).
With regard to language development, the IESP stated the student's language skills had improved over the past school year, but he was still behind in comparison to his peers (id.). His inconsistent use of correct grammar impeded his classmates' ability to understand him (id.). According to the IESP, the student consciously made an effort to pronounce words more clearly because he was aware his speech was hard to understand at times (id.). His annunciation of certain sounds ("w" or "th" for example) played a part in his struggles with phonetically spelling unfamiliar words (id.).
The May 2024 IESP stated the student's pragmatic language was socially appropriate for his age (Parent Ex. C at p. 3). It noted the student adequately used language for a variety of pragmatic functions (i.e., requesting, initiating communicative exchanges, responding when spoken to, protesting) (id.). In addition, it indicated the student was cooperative and compliant in most presented structured language tasks, although he required words of encouragement to engage in tasks that might have seemed uninteresting to him (id.). The student had grown in his confidence to independently ask for assistance when needed (id.). The IESP noted that as per clinician observation, the student could identify all letters and their corresponding phonemes, including consonant digraphs and blends (e.g., /ch/, /ph/, etc.) (id.). He continued to struggle with identifying vowel digraphs (e.g., "ea", "ou", etc.), specifically at the encoding level (id.). As noted in the IESP, informal clinician observation indicated that the student had demonstrated noteworthy progress in his articulation skills by extinguishing the preexisting phonological processes of fronting (e.g ., "tootie" for "cookie") and weak syllable deletion (e.g ., "nana" for "banana" (id.). He had also eradicated the substitutions of /s/ for /f/ or /z/ for /v/ (id.). At the time, the student's articulation errors were mainly marked by phonological processes of gliding the phonemes /r/ (e.g., "wabbit" for "rabbit") and /I/ (e.g., "wike" for "like") (id.). The IESP noted that, despite this, the student was highly stimulable and was gradually making progress in eliminating these phonological processes (id.). According to the IESP, the student's overall speaking volume was judged as low, and he often required repetitions to project his voice (id. at pp. 3-4). The student's overall speech intelligibility was judged as average to both familiar and unfamiliar communicative partners (id. at p. 4). The student was observed to independently follow one-to-two step verbal directives, though he required repetitions when he was overexcited (id.).
The IESP characterized the student as a visual, tactile, and kinesthetic learner (id.). It stated that he was well behaved and described him as sweet and a bit shy/quiet around others (id. at p. 7). According to the IESP, the student handled making mistakes easily (id. at p. 7). He pushed himself to succeed at completing difficult tasks and did not get frustrated when asked to try a task again (id.). Socially, the student was described as a shy first grader who enjoyed learning and working one on one with teachers and in small groups with his peers (id.). The IESP stated that redirection was key for the student when interacting with peers because he had not developed any leadership qualities yet, so he tended to follow unacceptable behaviors of those around him to fit in (id.). With redirection and reminders, he got back on track (id.).
In terms of physical development, the May 2024 IESP indicated the student presented with delays in fine motor and visual/perceptual motor skills as well as deficits in ADL skills, bilateral hand coordination, and sensory integration (Parent Ex. C at pp. 8-9). With regard to fine motor skills, the IESP indicated the student used a mature pencil grasp when writing but often demonstrated difficulty grading muscle control, which resulted in dark markings on his paper when completing handwriting tasks (id.). The student was able to print all upper- and lower-case letters on lined paper but needed frequent prompting for increased legibility including letter directionality (id.). According to the IESP, the student required assistance to complete multistep tabletop activities that required him to complete a series of coordinated activities independently (id.). The student also required external cuing to improve self-regulation in response to changes in his physical environment (id.).
Lastly, the May 2024 IESP indicated the student responded well to positive praise and compliments (Parent Ex. C at p. 9). The IESP identified strategies and resources needed to address the student's managements needs including graphic organizers, Catapult Title I services using the Science of Reading program, charts, visuals, songs, highlighting, various learning styles, spelling patterns and word family connections, review and revisit material for retention, partner collaboration and daily decodables to help with fluency (id. at p. 10).
2.Services from Access to Success
The hearing record contains an SETSS annual progress report dated February 20, 2025 that was written by the student's Access to Success SETSS provider (Parent Ex. G). Although the progress report reiterated the student's needs, it provided minimal information as to how Access to Success addressed those needs. As reflected in the SETSS progress report, in math, the student showed strength in computation but struggled with mental math and comprehension, requiring extra support (Parent Ex. G at p. 1). By February 2025, the student was able to add/subtract 3-digit numbers and understood the concept of carrying/borrowing (id.). According to the SETSS progress report, the student continued to receive extra support or simplified instructions to successfully solve a math problem (id.). The report noted that highlighting important information helped the student focus on critical parts of a problem (id.). The February 2025 SETSS report did not reflect any notable progress in reading (id. at p. 2). The report included that the student could work toward improving his reading skills by developing decoding strategies, engaging in fluency practice, and reading with expression (id.). In writing, the SETSS report indicated that with support, the student was able to write a simple paragraph with a topic sentence and few details (id.). The student could independently write a word, but he had trouble transferring it correctly into his writing (id.). Much of the February 2025 SETSS report regarding the student's language and social/emotional functioning was similar if not the same as the description of the student in the May 2024 IESP (compare Parent Ex. C at pp. 5, 7, 9 and Parent Ex. G at pp. 2-3).
With regard to goals included in the February 2025 SETSS progress report, recommended annual reading goals included decoding multisyllabic words, reading grade-level texts with expression, and recognizing sight words (Parent Ex. G at pp. 3-4). Writing goals focused on creating detailed paragraphs with correct grammar and spelling (id. at p. 4). Math goals included using mental math for addition and subtraction, solving word problems, and mastering multiplication facts (id. at pp. 4-5). Most of these goals targeted more advanced skills than the goals included in the May 2024 IESP (see Parent Exs. C at pp.12-14; G at pp. 3-5).
Testimony by the co-owner of Access to Success indicated the student received three hours per week of SETSS in a separate location (pull-out) during the school day (Tr. p. 12). She reported that Access to Success began delivering services to the student at the end of September 2024 (Tr. p. 12). According to the co-owner, the agency's providers took daily notes, wrote quarterly reports, and informally assessed students, preferably once a month; however, none of these daily or quarterly reports and assessments were offered into the hearing record (Tr. p. 14). The co-owner also testified that notes were sent home when report cards were given, but they are not in evidence (id.). Also, providers drafted annual progress reports using a template provided by the co-owner, but it is not clear if Parent Ex. G is what was being referenced or if it was something else (id.).
The co-owner reported that the agency provided SETSS "in direct adherence" and "fulfilment" of the student's IESP mandate (Parent Ex. L ¶¶ 3, 4). She indicated that the SETSS targeted the student's academic needs with qualified providers who had experience with the student's particular challenges (Parent Ex. L ¶¶ 1, 3-4). The co-owner stated the student's SETSS provider was a certified special education provider and a "literacy specialist" (Tr. p. 20; see Parent Ex. I).
In terms of progress, according to the co-owner, in reading, the student had met some decoding goals, such as reading consonant-vowel-consonant words, but struggled with multi-syllabic words and comprehension (Tr. p. 21). The student had been working on answering concrete "WH" questions and identifying main events and characters but still faced challenges (id.). The co-owner indicated she thought the student still struggled because he got lost in decoding text, and therefore he was not yet able to focus on comprehending it (Tr. pp. 21-22). In writing, the co-owner of the agency indicated that the student progressed and met some of his goals with support (Tr. p. 22). For example, she testified that the student, with support, met his goal to write a paragraph or a few sentences with correct punctuation and grammar and then be able to phrase a topic sentence and details (id.). The co-owner testified that math was an area of strength for the student (Tr. p. 21). She further testified that the student had made progress in math, meeting some goals in computation, but that he still struggled with word problems due to literacy challenges, particularly with comprehension (id.). He had not yet demonstrated automaticity with mental math, something the SETSS provider still worked on with the student (id.).
Here, there is insufficient evidence to disturb the IHO's findings regarding the appropriateness of the parent's unilateral placement. Although there is some evidence of progress, there are no session logs or other reports, reportedly maintained by Access to Success, that describe how the SETSS provider adapted the content, methodology or delivery of instruction to meet the student's unique needs.[16] Specifically, there is no evidence of Access to Success providing the student with specially designed instruction. Further, there is also no evidence that the student received any related services such as OT or speech-language therapy. Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.
Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the evidence in the hearing record is insufficient to overturn the IHO's decision that the parent failed to meet her burden to demonstrate that the student's unilaterally-obtained SETSS provided by Access to Success were appropriate to meet the student's needs during the 2024-25 school year. The student's educational program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally-obtained SETSS, and when viewed together, with the idea that the specially designed instruction should support the student's access to the general education curriculum; however, in this instance there was insufficient information about the delivery of instruction that was specially designed to address the student's needs (see Application of a Student with a Disability, Appeal No. 24-593; Application of a Student with a Disability, Appeal No. 24-548; Application of a Student with a Disability, Appeal No. 24-478; Application of a Student with a Disability, Appeal No. 24-472; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 25-029). Instead, the information provided by the parent regarding Access to Success primarily reframed the student's identified needs, with virtually no description of the interventions actually implemented.
Accordingly, the evidence in the hearing record does not lead me to the conclusion that there is a sufficient basis to disturb the IHO's finding that the parent failed show that SETSS provided by Access to Success to the student for the 2024-25 school year were appropriate to meet the student's unique needs.
VII. Conclusion
Having determined that the evidence in the hearing record supports the IHO's determination that the parent failed to demonstrate the appropriateness of the unilaterally-obtained SETSS provided by Access to Success to the student during the 2024-25 school year, the necessary inquiry is at an end and it is not necessary to address equitable considerations (M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]). However, the IHO erred in ordering district funding of SETSS from Access to Success on a pendency basis.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated March 27, 2025 is modified by reversing that portion which found that the district was required to fund the student's services pursuant to the May 2024 IESP as pendency.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]). Both parties submitted copies of the student's May 9, 2024 IESP into the hearing record (compare Parent Ex. C, with Dist. Ex. 2). For purposes of this decision, only the parent's exhibit will be cited.
[2] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[3] The IHO signed and dated her decision March 27, 2025, but then a coversheet was created inconsistently indicating it was dated March 28, 2025.
[4] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[6] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[7] In 2004, the State Legislature amended subdivision two of the Education Law § 3602-c, effective June 1, 2005 (see L. 2004, ch. 474 § 2 [Sept. 21, 2004]). Prior to such date, the subdivision read, in part, as follows:
Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.
(L. 1990, ch. 53 § 49 [June 6, 1990] [emphasis added]). The amendments that took effect on June 1, 2005 removed the last sentence of subdivision two relating to the review of a board of education's failure or refusal to provide equitable services by the Commissioner (L. 2004, ch. 474 § 2). A review of the statute's history and the New York State Assembly Memorandum in Support of Legislation shows that the Legislature intended to remove the language that an appeal to the Commissioner of Education under Education Law § 310 was the exclusive vehicle for review of the refusal or failure of a board of education to provide services in accordance with Education Law § 3602-c, as the earlier sentence in subdivision two of such section authorized review by an SRO from a district CSE's determination in accordance with Education Law § 4404 (Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). The Memorandum further explained:
The language providing for review of a school district's failure or refusal to provide services ONLY in an appeal to the Commissioner of Education under Education Law § 310 is unnecessary, confusing and in conflict with the earlier language authorizing review by a State review officer pursuant to § 4404(2) of the Education Law of a committee on special education's determination on review of a request for services by the parent of a nonpublic school student. At the time it was enacted, the Commissioner of Education conducted State-level review of an impartial hearing officer's decision under § 4404(2) of the Education Law in an appeal brought under § 310 of the Education Law, but that is no longer the case. The Commissioner has jurisdiction under Education Law § 310 to review the actions or omissions of school district officials generally, so it is unnecessary to provide for such review in § 3602-c and, now that a State review officer conducts reviews under section 4404 (2), it is misleading to have the statute assert that an appeal to the Commissioner is the exclusive remedy.
(Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). Thus, the legislative amendments were intended to clarify the forum where disputes could be brought, not to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404.
[8] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1. For example,
Questions and Answers
1. What does "dual enrollment" mean?
Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.
("Dual Enrollment Programs," available at https://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[9] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however, enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]) and the regulation has since lapsed.
[10] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs, resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; however, it has been added to the administrative hearing record.
[11] There is no definition of an "enhanced rate," much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.
[12] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[13] The parent's argument is, as a factual matter simply incorrect, but it has no bearing on the outcome of the pendency dispute. In her decision, the IHO directed the district to fund the student's pendency services (IHO Decision at p. 8).
[14] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Access to Success (Educ. Law § 4404[1][c]).
[15] The student's regular education teacher and SETSS provider both participated in the IESP meeting and the present levels of performance reflect information provided by both (Parent Ex. C at pp. 4-6, 18).
[16] It is well settled that a finding of progress is not sufficient, by itself, for a determination that a student's unilateral services are adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364). However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).