STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-259
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, 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 cost of her daughter's private services delivered by Beyond Limits Support Services (Beyond Limits) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which directed it to reevaluate the student. 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
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.
Briefly, a Committee on Preschool Special Education (CPSE) convened on October 19, 2014, found the student eligible for special education as a preschool student with a disability, and developed an IEP with a projected implementation date of November 3, 2014 (Parent Ex. C at pp. 1-2, 25). The October 2014 CPSE recommended that the student receive a bilingual program in Yiddish (id. at p. 1). The October 2014 CPSE recommended that the student receive special education itinerant teacher (SEIT) services in a group of three, at a frequency of 30 sessions per week and for a duration of 30-minutes per session, to be delivered in the student's classroom (id. at p. 23). The October 2014 CPSE also recommended related services of three 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual occupational therapy (OT) (id. at pp. 1, 23).[1]
According to the parent, a CSE did not reconvene until March 2022, however the hearing record includes a March 26, 2015 IEP and a February 24, 2021 IEP for the student (compare Parent Ex. A at p. 2, with Dist. Exs. 5 at pp. 1, 27; 6 at pp. 1, 20). The February 2021 CSE recommended the student attend a district non-specialized school and receive integrated co-teaching (ICT) services delivered in Yiddish for 10 periods per week in math, 10 periods per week in English language arts (ELA), five periods per week in social studies, and two periods per week in science (Dist. Ex. 5 at pp. 22, 27). The February 2021 CSE also recommended related services of one 60-minute session per week of individual OT delivered in English, one 30-minute session per week of individual OT delivered in English, two 30-minute sessions per week of individual speech-language therapy delivered in Yiddish, and two 30-minute sessions per week of speech-language therapy in a group of three and delivered in Yiddish (id. at pp. 22-23).
A CSE next convened on March 28, 2022, determined that the student was eligible for special education as a student with an other health impairment, and developed an IEP with a projected implementation date of April 27, 2022 (Parent Ex. D at pp. 1, 25).[2] The March 2022 CSE recommended the student attend a district non-specialized school and receive ICT services consisting of 10 periods per week in ELA delivered in English, five periods per week in math delivered in Yiddish, five periods per week in social studies delivered in Yiddish, and five periods per week in science delivered in Yiddish (id. at pp. 19-20). In addition, the CSE recommended one 30-minute session per week of individual counseling services delivered in Yiddish, one 60-minute session per week of individual OT delivered in English, one 30-minute session per week of individual OT delivered in English, two 30-minute sessions per week of individual speech-language therapy delivered in Yiddish, and two 30-minute sessions per week of speech-language therapy in a group of three and delivered in Yiddish (id. at p. 20).
On September 5, 2024, the parent signed a document titled "Parent Service Contract" with Beyond Limits (Parent Ex. F). Initially, the contract indicated that the student was entitled to receive 15 hours per week of special education teacher support services (SETSS) delivered in English, three 30-minute sessions per week of speech-language therapy delivered in English, two 30-minute sessions per week of OT delivered in English, and one 30-minute session per week of counseling services delivered in Yiddish (id. at p. 1).[3] The contract also stated that Beyond Limits would "make every effort to implement the recommended services mentioned-above with suitable qualified providers for the 2024-25 school year" (id.). The contract further provided that the parent confirmed that she would be "liable to pay Beyond Limits … the full amount for all recommended services mentioned above delivered by Beyond Limits" (id. at p. 2). Notwithstanding the prior terms, the contract also stated that the parent understood that Beyond Limits intended to provide only SETSS/SEIT services at a rate of $195 per hour and OT at a rate of $285 per hour during the 2024-25 school year (id.).
In an October 16, 2024 letter to the district, the parent, through her attorney, advised the district that she had been unable to locate a "bilingual Yiddish ICT program within the public school system," and rejected the March 2022 CSE's "recommendations and the school placement" (Parent Ex. E at p. 1). The parent stated that she had "no choice but to place [the student] in [a nonpublic school] and provide his [sic] special education program and services" at the nonpublic school (id.). The parent further advised that she would seek "reimbursement, direct payment, and possibly a bank of compensatory hours" from the district "for this special education program and related services" (id. at p. 2).
For the 2024-25 school year, the student was parentally placed in a general education nonpublic school and enrolled in the eighth grade (Parent Exs. E; H at p. 1; K at pp. 1-14). The hearing record indicates that the student received unilaterally obtained services of SETSS and OT (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated December 18, 2024, the parent alleged that despite the student's well-documented needs, the CSE failed to recommend an appropriate placement for the student for the 2024-25 school year (Parent Ex. A at p. 3). The parent also asserted that the district failed to provide a suitable school location letter for the 2024-25 school year and that she had not been able to locate the recommended Yiddish ICT program within the public school system on her own (id.). The parent invoked the student's right to pendency, arguing that an unappealed April 18, 2023 IHO decision constituted the student's pendency services consisting of 15 hours per week of SETSS, three 30-minute sessions per week of speech-language therapy and two 30-minute sessions per week of OT (id. at p. 2).
While the parent argued that the unappealed April 18, 2023 IHO decision set forth the student's pendency entitlement, the parent sought to implement the recommendations of an October 29, 2014 CPSE IEP, contending that the student had been making progress utilizing the SEIT program and required either a continuation of the broader SEIT program or an appropriate placement in a hybrid special education/general education program that should address the student's special education needs in a mainstream environment (id.). The parent argued that due to the fact that the district had not recommended a "proper placement" for the student, she was left with no choice but to implement the SEIT program independently and seek reimbursement from the district (id.). In addition, the parent alleged that due to the difficulties in locating a SEIT and related services provider from the district or even independently, she reserved her right to ask for compensatory services to which the student was entitled under pendency and not provided during the 2024-25 school year (id.).
As relief, the parent sought findings that the March 28, 2022 IEP "was a denial of a [free appropriate public education] FAPE for the 2024-25 school year," that the failure of the CSE to convene a timely meeting was a denial of a FAPE for the 2024-25 school year, and that the failure to recommend an appropriate placement was a denial of a FAPE for the 2024-25 school year (Parent Ex. A at pp. 3-4). The parent further requested that the recommendations set forth in the October 29, 2014 CPSE IEP be funded for the "complete 2024-25 school year at the provider's contracted rate," and that the district "fund a bank of compensatory education for the entire 2024-25 school year - or the parts of which were not serviced. Such services to be funded at the prospective provider's contracted rate" (id. at p. 4).
In a due process response dated January 6, 2025, the district asserted general denials of the allegations set forth in the due process complaint notice and asserted multiple affirmative defenses (Dist. Due Process Response at pp. 1-5).
B. Impartial Hearing Officer Decision
The parties convened before an IHO with the Office of Administrative Trials and Hearings (OATH) for an impartial hearing on March 10, 2025, which concluded on March 19, 2025, after two days of proceedings (Tr. pp. 1-39).[4] In a decision dated March 27, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year, and further determined that "the weight of the evidence support[ed] the conclusion that the [district] failed to offer [the s]tudent an educational program reasonably calculated to offer FAPE" for the 2024-25 school year (IHO Decision at p. 4). The IHO also found that there was no evidence of a prior written notice, a school location letter, a current IEP "or the provision of services for [the s]tudent" (id.).[5] Next, the IHO found that the parent's unilaterally obtained SETSS and OT were not appropriate for the student (id. at pp. 4-5). Specifically, the IHO found that the parent's requested services were set forth in the October 2014 CPSE IEP and due to the age of the IEP, could not be appropriate for the student (id. at p. 4). The IHO further found that the parent did not provide sufficient information regarding the student's then-current educational needs, that the testimony of the SETSS provider was vague in nature, and that there was no evidence to demonstrate that the SETSS and OT provided by Beyond Limits addressed the student's anxiety or behavioral needs (id. at p. 5). The IHO did not address equitable considerations (id. at p. 6). In conclusion, the IHO denied the parent's request for direct funding for the services provided to the student by Beyond Limits for the 2024-25 school year, and directed the district to conduct new evaluations of the student in all areas of suspected disability and to reconvene the CSE to develop an IEP or an individualized education services program (IESP) for the student (id.).
IV. Appeal for State-Level Review
The parent appeals and asserts that the IHO erred in finding that the parent did not demonstrate the appropriateness of her unilaterally obtained SETSS and OT. The parent alleges that because the district did not meet its burden to demonstrate that the March 2022 IEP offered the student a FAPE, the parent's private services consisting of 15 hours of SETSS delivered in Yiddish was the most appropriate program for the student. The parent further argues that the IHO improperly shifted the burden of proof onto the parent to demonstrate that the October 2014 CPSE IEP was still appropriate. Next, the parent contends that she met her burden to demonstrate that her unilaterally obtained services were appropriate. Specifically, the parent alleges that the SETSS and OT delivered by Beyond Limits were appropriately tailored to the student's needs. The parent also argues that equitable considerations do not warrant a reduction in the provider's rates.
In an answer and cross-appeal, the district initially argues that the parent's request for review was not properly verified and submits two documents in support of its contention.[6] Next, the district asserts that the IHO correctly concluded that the parent failed to prove the appropriateness of her unilaterally obtained SETSS and OT. As for its cross-appeal, the district argues that equitable considerations warrant a reduction in the rates requested by the parent, and that the IHO's order directing the district to reevaluate the student should be reversed. With regard to the parent's requested rates, the district argues that the October 2023 American Institutes for Research (AIR) report should be considered, and if the parent's unilaterally obtained SETSS are found to be appropriate, the hourly rate for SETSS should be reduced to $125. The district did not request a rate reduction for OT. With regard to the IHO's order to reevaluate the student, the district alleges that reevaluation was not among the parent's requested relief, that the IHO failed to develop the hearing record to support a need for evaluations, and that the IHO's order was overbroad.
In an answer to the cross-appeal, the parent argues that she has sufficiently complied with the practice regulations, and further asserts that the student received 10 hours of SETSS during the 2024-25 school year.
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 generallyForest 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]).[7]
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. Legal Standard
In her decision, the IHO noted that the district argued in its post-hearing brief that the student in this matter was dually enrolled, not entitled to a FAPE, and that the parent had failed to timely request equitable services in accordance with Education Law § 3602-c (IHO Decision at p. 4; IHO Ex. II at pp. 2-4). The IHO found that the parent sought services from the October 2014 CPSE IEP and that there were no "'equitable services' [at issue] in th[e] matter" (IHO Decision at p. 4). The IHO determined that there was a lack of proof that the district offered the student a FAPE for the 2024-25 school year, and that the hearing record established "that the weight of the evidence support[ed] the conclusion that the [district] failed to offer [the s]tudent an educational program reasonably calculated to offer FAPE for the 2024-2025 school year" (id.). The district has not cross-appealed from the IHO's FAPE findings and as a result, these findings have become final and binding on the parties and will not be reviewed on appeal (see 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]).
While the IHO correctly found that the student was not dually enrolled for the 2024-25 school year, she nonetheless relied solely on a prior SRO decision—which involved a dually enrolled student—in finding that the parent's private services were not appropriate (IHO Decision at pp. 4-5; see Application of the Dep't of Educ., Appeal No. 23-275). The IHO also stated that the parent did not provide sufficient information regarding the student's current educational needs or demonstrate that the program recommended in the October 2014 IEP was still an appropriate program (id. at p. 4). The IHO further found the testimony of the educational director of Beyond Limits (educational director) to be vague (id. at p. 5). The IHO did not grapple with the substantive content of a January 2025 progress report, stating only that the progress report glossed over the student's behavioral struggles (id.). The IHO also compared the parent's failure to obtain services recommended in the March 2022 IEP with the parent's desire to obtain services consistent with the recommendations in the October 2014 IEP to suggest that the student's needs had obviously changed and that the "[p]arent's program" did not address the student's "anxiety or behavioral issues" (id.).
The IHO then discussed prior SRO decision—which stated that it was the fault of the district when the hearing record did not include the student's current educational needs—to support her finding that the 10 year old "IESP," which the parent sought to implement, could not address the student's current needs and support her directive to the district to reevaluate the student (IHO Decision at p. 5).
Review of the IHO's decision reflects that she improperly faulted the parent for the district's failure to identify the student's needs (A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]). The IHO also set forth the appropriate Burlington/Carter analysis; however, she did not apply it correctly. Whether or not the parent sought funding for services that were consistent with an outdated IEP was not the issue in this matter. The issue was whether or not the parent's unilateral placement—which consisted of the student's enrollment at a nonpublic school in a general education classroom and privately obtained SETSS and OT—constituted specially designed instruction to meet the student's unique needs when considering the totality of the circumstances. As discussed below, although the hearing record presents a narrow margin, overall the IHO erred in finding that the parent did not sustain her burden to demonstrate the appropriateness of her unilateral placement of the student.
B. Unilateral Placement
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see 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 at 364; 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
A review of the information available in the hearing record concerning the student's needs and then-current functioning will provide the context needed to assess whether the unilateral placement was appropriate for the student.
Here, the sources of information regarding the student's needs leading up to the 2024-25 school year included in the hearing record were limited to the March 2022 IEP and a January 2025 SETSS progress report, which identified the student's continued needs and "targeted interventions" (see Parent Exs. D; H).
The March 2022 IEP's present levels of performance stated that the student demonstrated "impacts on frontal lobe functioning," such as motivation, self-initiation, integration of sensory information, planning, visual motor integration, social behavior, inhibiting aggression, impulsivity, and speech production/expression (Parent Ex. D at p. 3). She also had difficulty with executive functioning, particularly organizational skills, which led to misplaced papers and incomplete or unsubmitted tests (id. at pp. 1, 2). School reporting indicated that the student easily became overwhelmed in the classroom, particularly as expectations for more self-initiation and self-engagement in learning increased (id. at p. 3).
As detailed in the March 2022 IEP, the SETSS provider reported that in math, the student performed at a fourth grade level and could add and subtract numbers with a "few" digits using carrying and regrouping (Parent Ex. D at p. 1). Her working memory deficits combined with her anxiety made memorizing rote math skills difficult, and she had not memorized multiplication tables, which impacted her ability to solve multiplication and division problems with numbers with two or more digits (id. at pp. 1-2, 3). The student needed significant support with solving problems requiring comprehension, conceptual understanding, math application and showing her work or thought process (id. at p. 2). The student was most likely to become "overwhelmed and dysregulated" in math class and required "more pull-out" SETSS in math than in other subjects (id. at p. 3).
According to the March 2022 IEP, the student's reading level was "up to par," but she needed analogies, visuals, and slower paced learning (Parent Ex. D at p. 2). She had difficulty with spelling and phonemic awareness and required additional support with comprehension and writing due to physical difficulties with writing (id.). The March 2022 IEP related that the student expressed herself well in written form if someone else did the writing, as the physical act of writing "was quite difficult for her" (id.). This impacted her performance in every subject (id.). In addition, she had difficulty filling out worksheets and tests and then had difficulty keeping track of and submitting them (id.).
The March 2022 IEP reported that the student's focusing, and emotional regulation were "key concerns" and affected her in all areas (Parent Ex. D at p. 4). She was easily frustrated and had a hard time accepting her mistakes, and her perfectionism further complicated matters (id.). When overwhelmed, the slightest mistake could bring the student to tears, which led to low self-esteem (id.). The March 2022 IEP noted that, while the student knew what she was feeling and had strategies to calm herself, she did not apply them in the classroom (id.). When the student was dysregulated, it was "significant," and it took an "extended period of time for her to return to baseline" (id.). The student was generally respectful, but her social skills were delayed when compared to peers (id.). She did not always intuit social norms and blurred the boundaries of what was appropriate to say and to whom (id.).
The March 2022 IEP also related that the student exhibited "considerable delays in fine motor, visual motor, and self-help skills" (Parent Ex. D at p. 5). She had low muscle tone, decreased postural stability, weak intrinsic muscles, and limited hand-eye coordination, which greatly impacted her fine motor and visual motor skills (id.). The student was working on improving her grasp and handwriting legibility and endurance for writing (id. at p. 2). She had significant difficulty with "far point copying" from the board to her paper, and her difficulty with spelling and phonemic awareness affected her writing speed since she could not memorize or spell the words in her head and frequently had to shift her gaze to the board (id.). This made note taking difficult and time consuming, which was exhausting and frustrating for the student (id.). The March 2022 IEP additionally noted that the student had "significant delays" in sensory processing skills and displayed sensory seeking behaviors and limited attention (id. at p. 5).
To address the student's management needs, the March 2022 IEP included strategies including information presented in multiple modalities, directions simplified, positive reinforcement, extra time for oral and writing answers, concepts broken down, small group instruction, graphic organizers, verbal negotiation/preparation, and modeling, proprioceptive strategies, sentence starters, movement breaks, time outs, check-ins to avoid dysregulation (Parent Ex. D at p. 5).
The January 22, 2025 progress report prepared by Beyond Limits' SETSS providers (SETSS progress report) revealed that the student had a "solid understanding of foundational math concepts, including addition, subtraction, multiplication, and division" but needed support when new material was introduced (Parent Ex. H at p. 2). She had improved at recognizing and applying basic operations, but continued to struggle with fluency in multiplication, which affected her ability to solve multistep problems efficiently (id.). The report also stated that showing or explaining her thought process was challenging for the student because of her difficulty mentally organizing information, and that this was further compounded by her reading comprehension delays (id.).
A review of the SETSS progress report shows that the student had difficulty with reading comprehension, writing, math, language, emotional regulation, and social interaction (Parent Ex. H at p. 1). In reading, the student had difficulty "reading accurately, often struggling to maintain fluency and understanding" (id.). She had difficulty grasping overarching concepts, summarizing key points, making comparisons between ideas, contrasting different perspectives, and identifying the main idea of a story (id.).
According to the SETSS progress report, the student occasionally made random comments during class and interrupted lessons (Parent Ex. H at p. 3). She made minimal eye contact and had difficulty matching her tone of voice to the social situation (id.). She needed extra attention in social situations and did not always recognize when her behavior was inappropriate (id.).
2. Educational Program
During the 2024-25 school year, Beyond Limits delivered 10 hours per week of individual SETSS and two 30-miute sessions per week of individual OT services to the student, with services "typically provided outside of the classroom" (Parent Exs. F; H; I ¶¶12-14, 20; J ¶ 10).[8]
Initially, as stated above, the Burlington-Carter framework requires the parent to prove that the unilateral placement constituted instruction specially designed to address the student's unique educational needs. However, the appropriateness of specially designed instruction cannot be determined in isolation from the overall educational programming the student is receiving, as specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
Accordingly, in reviewing the student's educational program, as a whole, for the 2024-25 school year, the student was enrolled at a nonpublic school in a general education classroom and received SETSS and OT provided by Beyond Limits. It would then be expected that the specially designed instruction provided by Beyond Limits should have supported the student's access to the general education curriculum. However, in this matter, the parent's attorney has not presented any evidence of the student's nonpublic school programming, which must be weighed in determining the appropriateness of the student's educational program. As has been determined in prior State level administrative decisions, "the use of a special education service [, in isolation,] to replace primary general academic instruction that should have been delivered by the [student's] nonpublic school . . . cannot be ignored" (Application of a Student with a Disability, Appeal No. 25-104, citing Application of a Student with a Disability, Appeal No. 24-282).
Under the unique circumstances of this matter, as discussed further below, there is a sufficient basis for finding that the unilateral placement was appropriate. In particular, although testimony indicated that SETSS were generally provided outside of the student's classroom, and there was little evidence as to what occurred in the student's general education classes, the hearing record included some evidence of coordination between the Beyond Limits providers and the student's classroom instructors at the nonpublic school (Parent Exs. H; I ¶¶ 7, 17, 20, 21). For example, the educational director testified that she observed the student in class and collaborated with providers and school personnel to address the student's needs, which showed some degree of coordination between the provision of SETSS and the student's classroom performance and need for behavioral support (Parent Ex. I ¶ 7). The educational director also testified that the student's progress was tracked through meetings and classroom observation, which demonstrated a connection between the SETSS being delivered to the student and the student's in-class performance (id. ¶ 21). The educational director's testimony was supported by the SETSS progress report, which indicated that the student received individualized specialized instruction in reading, writing, math and support for her speech-language needs, which complemented her classroom learning (Parent Exs. H at pp. 1-2, 3, 4; J ¶ 20).
Turning to the specific services, the hearing record reflects that in order to support the student's reading needs, her SETSS providers used the Orton-Gillingham phonics-based methodology and the Spelling U See program to improve decoding, spelling, and writing fluency (Parent Ex. H at p. 4). Handwriting exercises were also used daily to improve legibility and reduce fatigue, and graphic organizers were used to structure the student's writing and enhance comprehension (id.).
In response to the student's needs in math, the SETSS providers used "guided instruction focused on multiplication fluency and problem-solving strategies, incorporating visual aids and Think Aloud methods to help her process multistep problems more effectively, following the Math U See program" (Parent Ex. H at p. 4). The student also used graphic organizers to help break down the steps when solving math problems (id. at p. 3).
In her decision, the IHO specifically noted that the hearing record lacked information regarding how the student's anxiety and behavioral needs were addressed (IHO Decision at p. 5). However, upon review, the SETSS progress report indicated that the student's SETSS providers used co-regulation, breathing exercises, and structured routines to help her manage frustration and prevent emotional outbursts (Parent Ex. H at p. 4). In addition, role-playing and structured peer interactions, following the Social Thinking curriculum, helped the student recognize social norms and improve turn-taking in conversation (id.). Organizational tools, such as planners, graphic organizers, and tasks broken down were used to improve the student's time management and reduce frustration with academic tasks (id.). The SETSS progress report noted that these interventions were "designed to provide [the student] with the structured support she need[ed] to strengthen her academic abilities, develop better social skills, and enhance emotional regulation strategies" (id.).
The educational director testified that the student had a SETSS provider in the classroom with her and that "it [was not] only being pulled out as a 1:1" because the student needed assistance with regulation and transitions from one subject to another to prevent her from being disruptive (Tr. pp. 20-21). According to the educational director, the SETSS providers were helping the student with behavioral regulation and "she was learning to be an active member" in the classroom (Tr. p. 21). In addition, the educational director testified that the SETSS providers completed an FBA and BIP to address the student's behavior and were using the Social Thinking Skills curriculum to support the student's social/emotional needs (id.). When asked by the IHO if "social emotional regulation is more a counseling issue or an OT issue than a SETSS issue," the educational director testified that the student was receiving OT from an excellent provider, and while counseling was a "good idea" the student needed the support in the classroom for emotional and academic needs (id.).
With regard to OT, the Beyond Limits OT progress report and session notes (OT progress report), covering that portion of the 2024-25 school year from September 2024 through February 2025, showed that the student had OT goals to address her far-point copying, memorization, academic participation, self-regulation, emotional awareness and management, social communication, and peer interaction (Parent Ex. K at pp. 1-2). The OT progress report includes session notes which reflect the provider's focus on these areas (id. at pp. 2-12). The OT progress report stated that to address the student's academic participation and self-regulation; sensory strategies such as naval radiation, neurotacile massage, deep breathing, and body rolling on a ball helped the student transition to academic tasks and regulate her emotions (id. at p. 13). Gross motor activities like donut swing with falling back, steps with rhythm, and vibration exercises supported a "just right state for learning" (id.). According to the OT progress report, the student had made progress using sensory strategies to regulate herself and transition into tasks, and although she still had difficulty with changes in routine, she was more aware of her emotional responses and could identify when she needed help (id.).
To address the student's goals around emotional awareness and management, OT sessions used problem-solving discussions, the "Kishke method" for processing emotional responses to unexpected situations, and reflex integration, including Moro tapping, TGR tapping, and foot reflex massage to support emotional regulation and reduce the student's stress response (Parent Ex. K at p. 13). The OT progress report stated that the student was becoming more aware of her emotional patterns and could acknowledge when she was overwhelmed, and that though she still had difficulty controlling her reactions in the moment, she was starting to reflect on them afterward (id.). Regarding the annual goals related to social communication and peer interaction, the OT report indicated that the provider used social skills discussions on topics such as interrupting, repeating statements for attention, and understanding personal space and taught strategies for nonverbal acknowledging, waiting before repeating, and using appropriate responses in social settings (id. at p. 14). Activities like bilateral integration on a lycra swing, steps with trampoline, and balance exercises supported the student's body awareness and social engagement (id.). According to the OT progress report, the student was more aware of social expectations, and how her behavior affected others, recognized when she repeated herself excessively or interrupted but still needed guidance in adjusting these habits, and was learning to "balance her strong personality with social awareness" and was beginning to accept that not everyone would react the way she expected (id.). As described in detail above, the student's behavioral, social/emotional and executive functioning needs were supported by the provision of SETSS (Parent Ex. H at pp. 3, 4). The OT progress report demonstrated that the student's OT supported the student's classroom readiness and participation by teaching and reinforcing sensory/self-regulation strategies that helped the student achieve a "just-right" state for learning and transition back to academic tasks, which improved task initiation and engagement in class (Parent Ex. L at pp. 2, 13). The OT progress report also indicated that the OT services addressed classroom skills, in-class behavior and organization, social communication and behavior support for appropriate classroom interactions, emotional regulation for handling transitions, and visual-motor and attention supports for classroom tasks (id. at pp. 1-2, 3-4, 10-14).
Based on the above, while the hearing record does not include evidence of the student's educational program at the nonpublic school, under the totality of the circumstances, the unrebutted evidence presented by the parent demonstrates that it is more likely than not that the SETSS and OT provided to the student during the 2024-25 school year provided individualized instruction to support the student's access to the general education curriculum at the nonpublic school.[9]
C. Equitable Considerations
The final criterion for an award of funding is that the parents' claim must be supported by equitable considerations. With respect to equitable considerations, the IDEA provides that funding 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"]). Among the factors that may warrant a reduction in funding 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). Generally, an excessive rate argument requires, at a minimum, evidence of not only the rate charged for the private services, but evidence of reasonable market rates for the same or similar services.
Initially, the district argues in its cross-appeal that no relief for SETSS or OT should be awarded because the parent's October 16, 2024 10-day notice post-dated the parent service contract with Beyond Limits which was signed by the parent on September 5, 2024. The parent's reply does not address the district's argument.
While the 10-day notice was submitted into evidence by the parent as an exhibit, the district did not argue during the impartial hearing nor in its post-hearing brief that the parent failed to comply with the 10-day notice provisions (see Tr. pp. 1-33; Parent Ex. E; IHO Ex. II). The IHO did not make any determinations regarding the 10-day notice in her decision (see IHO Decision). It was not until its cross-appeal that the district now argues that no relief for SETSS or OT should be awarded because the parent's 10-day notice post-dated the parent service contract with Beyond Limits. Under the circumstances presented here, I decline to find that such argument raised for the first time in a cross-appeal is a ground for denying SETSS or OT pursuant to equitable considerations.
Next, the district argues that, should it be required to directly fund the unilaterally obtained SETSS, the hourly rate charged by Beyond Limits should be reduced from $195 to $125 based on the AIR report it submitted into evidence (Answer & Cr.-Appeal at p. 10; IHO Ex. II at pp. 8-10; Dist. Ex. 1).[10] While not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Beyond Limits, I find that the AIR report, entered into evidence as district exhibit 1, offers some basis to conclude that the rate charged by Beyond Limits for SETSS was excessive.
First, the AIR report draws data published by the USBLS, a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 (N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]). I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data was published.[11] It was not inappropriate for the AIR to use such government-published data in its report. The data set in the New York, New Jersey, and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region. It is reasonable to find that most teachers, public and private, working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2024 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available athttps://www.bls.gov/oes/home.htm). Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.
The AIR report appears to address a question of what kind of approach "NYC DOE can use to determine a fair market rate for its Special Education Teacher Support Services (SETSS)" (Dist. Ex. 1 at p. 4). If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.
However, a parent facing the failure of the district to deliver his or her child's recommended services, who is left searching for a unilaterally selected self-help remedy, would be unable to hire teachers already employed by the district unless a teacher is "moonlighting" and, thus, dually employed; and the parent facing that situation would therefore be unable to negotiate for private teaching services with the same bargaining power that the district holds. Thus, while the AIR report relies on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose, namely, to ensure fair treatment among union members who are operating in public employment. Yet, fair treatment among district employees is of little or no interest to a parent who seeks to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees. Thus, the district-negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of a unilateral placement coupled with private services.
Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers. It covers wages in the entire metropolitan region, which would include teachers from across the spectrum including private schools, charter schools, and district special education teachers. The USBLS data indicated that, in May 2024, annual salaries for "Special Education Teachers, All Other" ranged from $51,500 in the 10th percentile, $63,640 in the 25th percentile, $98,020 in the median, $156,300 in the 75th percentile, to $163,850 in the 90th percentile.[12]
In my view, this is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more. As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parents' costs. Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement. Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees, and private industry, expressed as a percentage of salary, and for private industry such educational services costs were 29.4 percent, which tends to show that government benefits are often slightly better, and more expensive, than those offered in private industry (see Employer Costs For Employee Compensation (ECEC)—June 2024, available athttps://www.bls.gov/news.release/archives/ecec_09102024.pdf ).[13]
The undersigned had little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.[14] I will take this into account when ordering equitable relief.
In this case, the educational director did not provide any testimony regarding the hourly rate that Beyond Limits paid the SETSS provider (see Tr. pp. 13-23; Parent Ex. I). Accordingly, I will use an hourly rate of $83.78 per hour derived from the USBLS data which, if annualized, would approximate the median annual salary of $98,020 for a special education teacher in the geographic region as described above. This would leave over $111 attributable to overhead costs, which falls far above the 29.4 percent identified in the USBLS data.
On the other hand, some indirect or overhead cost is reasonable. Calculating for overhead costs equating to 29.4 percent of the overall rate, and accounting for the provider's wage at the median figure for the metropolitan geographic region, the total rate computes to approxinately $118.00 per hour. Accordingly, the district will be ordered to fund the student's SETSS for the 10-month 2024-25 school year up to a maximum of 10 hours per week, at a rate of $118.00 per hour, subject to the parent providing the district with proof of the delivery of services such as the student's attendance records and invoices from Beyond Limits. Additionally, as the district did not argue for a reduction in the rate for OT services, those services will be funded at the contracted for rate of $285.00 per hour for up to one hour per week for the 2024-25 school year, subject to the parent providing the district with proof of the delivery of services such as the student's attendance records and invoices from Beyond Limits.
D. Reevaluation
Lastly, the district appeals from the IHO's order directing the district to conduct an evaluation of the student in all areas of suspected disabilty, asserting in its cross-appeal that the IHO erred because the parent never requested a reevaluation.
Review of the parent's October 16, 2024, 10-day notice letter and December 18, 2024 due process complaint notice reflect that a reevaluation was not among the parent's requested relief (Parent Exs. A at pp. 1-4; E at pp. 1-2).Nevertheless, the evidence reflects that a CSE last convened to develop an IEP for the student on March 28, 2022 (Parent Ex. D at p. 25).
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).
In addition, an IHO generally has broad authority to fashion appropriate equitable relief (see, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011]; see Forest Grove v. T.A., 129 S.Ct. 2484 [2009]). While an IHO should ensure that equitable relief awarded is designed to remedy an issue that was raised, in this instance, the district did not present any evidence to demonstrate that it has attempted to reevaluate the student since prior to March 2022.
Accordingly, to the extent that it has not done so, the district is required to proceed with a reevaluation of the student and there is no basis for reversing the IHO's decision directing the district to comply with its statutory obligations.
VII. Conclusion
In summary, the parent met her burden of demonstrating the appropriateness of her unilateral placement of the student at the nonpublic school along with privately obtained SETSS and OT delivered by Beyond Limits for the 2024-25 school year. However, I also find that equitable considerations warrant reduction of the direct funding of SETSS to a maximum of 10 hours per week for the 2024-25 school year and a reduction of the hourly rate to $118.00 in accordance with the body of this decision.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the district shall directly fund the costs of up to 10 hours per week of SETSS at a rate of $118.00 per hour and two 30-minute sessions per week of OT at a rate of $285 per hour delivered to the student by Beyond Limits during the 2024-25 school year, upon the presentation of proof of delivery of services, which may include invoices and attendance records produced by Beyond Limits and student's SETSS and OT providers attesting to the frequency and duration of those services during the 2024-25 school year; and
IT IS FURTHER ORDERED that the district shall fulfill its statutory obligation to reevaluate the student within sixty (60) days of the date this order if it has not already done so while the appeal has been pending.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at: https://www.nysed.gov/special-education/approved-preschool-special-education-programs.
[2] The hearing record contains duplicative exhibits. For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[3] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[4] Prior to the introduction of their documentary evidence, the IHO asked the parties to state their positions on the issues to be addressed during the impartial hearing and asked the parent to state her requested relief (Tr. pp. 4-5). With regard to the three-pronged Burlington/Carter analysis, the district's attorney stated that the district was "not challenging Prong 1," that it was the district's "position that [the] parent did not meet the burden," and that equitable considerations "d[id] not favor the parent" (Tr. p. 5). As for the parent's requested relief, the parent's attorney stated that although "the prior program mandated 15 hours," the parent requested "direct funding for … 10 hours per week of SETSS," at a rate of "$195 per hour," and two 30-minute sessions per week of OT at a rate of "$275 per hour" (id.). Notwithstanding the parent's attorney's statement, the contract with Beyond Limits set forth the cost of OT services a rate of $285 per hour (Parent Ex. F at p. 2).
[5] Citing the March 10, 2025 transcript, the IHO also found that the district "agreed" that the October 2014 CPSE IEP "was the operative IEP" and that the district "failed to provide services" (IHO Decision at p. 4). Review of the March 10, 2025 transcript reflects that, as noted above, the district indicated it was not contending that it provided the student with a FAPE; however, the district did assert that the parent did not meet her burden of proving the parent's unilaterally obtained program, which the IHO indicated was based on the October 2014 CPSE IEP, was appropriate (Tr. pp. 4-5). Accordingly, review of the transcript does not show that the district agreed that the October 29, 2014 CPSE IEP was the operative IEP for the student for the 2024-25 school year. In addition, the district argued in its post-hearing brief that the March 2022 IEP was the student's operative IEP (IHO Ex. II at p. 5).
[6] Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer'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 the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). The district attached proposed SRO exhibits 1 and 2 to be considered as additional evidence. The district asserts that the parent's attorney has been previously warned about noncompliance with the practice regulations and, in this instance, the request for review was undated. The district further argues that because the request for review was undated, it cannot be determined whether or not the parent's verification properly predates the request for review. While State regulation does not explicitly require that a request for review be dated, the affidavit of verification of a request for review is expected to be dated (8 NYCRR 279.7 [b][1]; see 8 NYCRR 279.7[a]). Additionally, it is expected that the request for review be completed prior to the verification (see Application of a Student with a Disability, Appeal No. 25-628). Accordingly, it is possible that a failure to date requests for review may raise suspicion as to the veracity and timing of the submitted documents, including the verification. In its answer to the cross-appeal, parent's counsel indicated that it will date its requests for review in the future so as to avoid accusations. Doing so should insure there is no confusion as to the veracity of signed and dated verifications in the future and, in this instance, it appears likely that the parent signed the verification after the request for review was prepared. As such, the lack of a date on the request for review is not a basis for dismissal and I decline to accept the district's proposed additional evidence and will not consider it further in this decision.
[7] 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).
[8] During the hearing, the parent testified that the student received 15 hours of SETSS and added that she did not know the exact schedule and that the student had some hours during the school day and "some after the school day" (Tr. pp. 26-27). In her testimony via affidavit, however, the parent stated that Beyond Limits was providing 10 hours of SETSS to the student (Parent Ex. J ¶ 10). The educational director testified by affidavit that during the 2024-25 school year, Beyond Limits provided the student with 15 hours per week of 1:1 SETSS from two certified and bilingual Yiddish providers, which was consistent with the SETSS progress report (Parent Exs. H at p. 1; I ¶¶ 3, 13-15). During live testimony, however, the educational director testified that the student received her SETSS "partly in school and partly after hours," and noted that while she didn't "have the exact breakdown," she "believed" that the student received 10 hours of SETSS during school and five hours after school (Tr. p. 15). While the parent does not address the reason for the inconsistencies and discrepancies in the number of hours of SETSS the student received during the 2024-25 school year, in the opening statement, parent's attorney stated that "the prior program" mandated 15 hours per week of SETSS but only 10 hours per week were implemented, and the parent was "requesting direct funding for the 10 hours per week of SETSS services" (Tr. p. 5). The parent also indicated in her answer to the district's cross-appeal that she was only seeking funding for 10 hours per week. Accordingly, although the hearing record is not clear as to the exact number of hours of SETSS the student received during the 2024-25 school year, there is sufficient basis to presume, for the purpose of assessing the appropriateness of the services, that the student received approximately 10 hours per week of SETSS.
[9] It is worth noting that the district did not recommend a program for the student for the 2024-25 school year, and the last IEP developed for the student in March 2022 recommended that the student be placed in a general education class with the support of ICT services and related services (Parent Ex. D at pp. 19-20). If this had been a case where there was a dispute as to the student's ability to be successful in a general education classroom with supports, the lack of evidence of the student's performance at the nonpublic school would have been more concerning and may have led to a different outcome (see Application of a Student with a Disability, Appeal No. 25-026 [weighing the student's functional grade level in contrast to the general education nonpublic school grade level the student was attending as a factor weighing towards requiring evidence as to how the special education services supported the student's classroom performance]).
[10] The district did not raise an issue as to the Beyond Limits hourly rate for OT.
[11] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year, and the AIR report in evidence used May 2022 data, which preceded the 2024-25 school year at issue in this proceeding and would be relevant thereto (seehttps://www.bls.gov/oes/tables.htm); however, I note that May 2024 data is the most recent annual data published by the USBLS relevant to the school year at issue in this decision. While the AIR report presented a snapshot in time, I do not share any concern that the data itself is "fixed in perpetuity" because it is updated annually, which is particularly relevant when considering due process claims under IDEA and Article 89 are almost always related to a specific annual time period.
[12] The 2024 data for the metropolitan area is available in a downloadable Excel format, or the most recent statics offered can be searched using the USBLS Query System for "Multiple occupations for one geographical area" (seehttps://data.bls.gov/oes/#/home). A larger file with all regions for May 2024, including the New York-Newark-Jersey City metropolitan region is also available (https://www.bls.gov/oes/special-requests/oesm24ma.zip).
[13] The ECEC covers the civilian economy, which includes data from both private industry and State and local government. One could make an argument that a company like Beyond Limits should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation, and the parents did not avail themselves of the opportunity to develop the record further regarding the indirect costs beyond that of the providers' hourly wages.
[14] Using 6.5 hours per day results in approximately 1170 hours of instruction time for students during a school year, and similar to teachers, related services are typically provided to students on a similar schedule during the school day.