STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-267
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by James A. Naumann, Esq.
Gulkowitz Berger, LLP, attorneys for respondent, by Shaya M. Berger, 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 district) appeals from the decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to reimburse the parent for the costs of her son's unilaterally-obtained special education teacher support services (SETSS) delivered by Learning Learners, LLC (Learning Learners) and YDS Associates, Inc. (YDS) for the 2023-24 school year. The appeal must be sustained.
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[a]). 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
With respect to the student's educational history, the hearing record is sparse. Briefly, a CSE convened in October 2022, and developed an IESP for the student for the 2022-23 school year (October 2022 IESP), with a projected date of implementation of November 8, 2022 and a projected annual review date of October 25, 2023 (see Parent Ex. B at p. 1). Finding that the student remained eligible to receive special education as a student with a speech or language impairment, the October 2022 CSE recommended that the student receive five periods per week of SETSS in a group within a general education classroom, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual counseling services, and one 30-minute session per week of individual occupational therapy (OT) services (id. at pp. 1, 9).[1], [2]
On May 18, 2023, the parent executed a district form indicating that the student was being placed in a nonpublic school for the 2023-24 school year at parent expense; the form also indicted that the parent wanted the district to provide the student's "special education services" (Parent Ex. G).[3], [4] Evidence in the hearing record reflects that the executed district form was sent to several district CSEs via email dated May 31, 2023 (see Parent Ex. K).[5]
In addition, a "Parent Service Contract" between the parent and Learning Learners noted that the student was "entitled to receive funding or reimbursement" from the district for the following services: five periods per week of SETSS in a group, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of counseling, and one 30-minute sessions per week of OT (Parent Ex. C at pp. 1-2). According to the contract, the agency agreed that it would "provide the recommended services mentioned-above to whatever extent possible" during the 2023-24 school year, and would "make every effort to implement the recommended services mentioned-above with suitable qualified providers" (id.). The contract further indicated that the agency "intend[ed] to provide" the student's SETSS at the rate of "$215 per hour" (id. at p. 2). Although the Learning Learners contract bears a date of July 20, 2023, there is no indication regarding when the parent actually executed this contract for services (id. at pp. 1-3).
Thereafter, in a letter dated August 26, 2023 and captioned as a "10-Day Notice of Private Placement," the parent—through her attorneys—notified the district of her intentions to implement the student's services in the October 2022 IESP and to seek reimbursement or funding from the district for those costs (Dist. Ex. 8 [emphasis in original]).
An "Agreement for Services" between the parent and YDS indicated that YDS agreed to deliver three sessions per week of unspecified services to the student for the 2023-24 school year at the rate of $195.00 per hour (Parent Ex. I; see Parent Ex. J ¶¶ 1, 7). According to the document, the agreement was effective as of September 1, 2023, however, the document does not reflect when the parent signed the agreement with YDS (see Parent Ex. I). Consistent with this agreement, evidence in the hearing record demonstrates that the "CEO" of YDS began delivering three 60-minute sessions per week of SETSS to the student on September 1, 2023 (Parent Ex. J ¶¶ 1-2, 4).[6]
On November 21, 2023, the Learning Learners' provider began delivering two 60-minute sessions per week of SETSS to the student (see Parent Ex. D ¶¶ 1-2, 4).[7]
A. Due Process Complaint Notice
By due process complaint notice dated May 19, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) "and/or equitable services" for the 2023-24 school year (see Parent Ex. A at p. 1). According to the parent, the student's October 2022 IESP represented the last-agreed upon program developed for the student, which included recommendations for five sessions per week of SETSS, "as well as certain related services" (id.).[8] The parent further indicated that she "dispute[d] any subsequent program the [district] developed that removed and/or reduced services on the IESP, and also dispute[d] any act the [district] may have taken to deactivate or declassify the student from being eligible to receive services" (id.). The parent asserted that, for the 2023-24 school year, the student continued to require the "same special education services and all related services each week as set forth on the IESP" (id.).
Next, the parent indicated that she could not locate providers to work at the district's "standard rates," and the district had not provided any for the student for the 2023-24 school year (Parent Ex. A at p. 1). The parent further indicated that she had located providers "who [we]re willing to provide the student with all required services" for the 2023-24 school year, but at "rates higher than standard [district] rate[s]" (id.).
As relief, the parent sought an order directing the district to continue the student's special education and related services under pendency and to directly fund the costs of the student's five sessions per week of SETSS at the "enhanced rate" for the 2023-24 school year (Parent Ex. A at p. 2). In addition, the parent sought an order awarding "all related service and aides on the IESP" for the 2023-24 school year and to either issue related services authorizations (RSAs) for the parent's selected providers or directly fund the costs of the related services at the rate of the parent's selected providers (id.).
The district submitted a due process response dated May 30, 2024 (Due Process Response).
B. Impartial Hearing Officer Decision
On July 16, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH), and concluded on September 4, 2024, after four days of proceedings (see Tr. pp. 1-164). At the initial impartial hearing date, the parties entered evidence into the hearing record, including district exhibit 3—the parent's purported June 1 letter, dated May 18, 2023—which the district's attorney read into the hearing record as dated "May 18th, 2024" (Tr. pp. 6-8). The parent's representative questioned the date of the district exhibit 3 on the "cover sheet," noting that it appeared to be "misdated," and then clarified that district exhibit 3 was actually dated May 18, 2023 (Tr. pp. 8-9). With respect to this concern, the district's attorney explained that the date on the cover sheet reflected the date the parent's June 1 letter—or district exhibit 3—had been uploaded into the district's special education student information system (SESIS), which, according to the district's attorney, was approximately one year after the date on the document (see Tr. p. 9). The district's attorney stated that he intended to cross-examine the parent about when she had submitted the June 1 letter to the district (id.). Upon questioning by the IHO, the district's attorney clarified that the uploaded date, May 18, 2024, was "not indicated on the exhibit," but instead, was reflected as the "corresponding date on the SESIS log" (Tr. pp. 9-10). Further discussion among the IHO and the parties led the district's attorney to request an opportunity to submit additional disclosure with the "SESIS events log to demonstrate the finalization date" of district exhibit 3 (Tr. pp. 10-11). The parent's representative conditionally agreed to the proposed additional disclosure, noting, however, that the SESIS log should date back to "at least . . . April," and the district should also submit a "search log of what was received by the CSE in their emails, [including] what may not have been uploaded into SESIS" (Tr. p. 11). The IHO wanted more time to consider and understand the relevance of the uploaded date versus the date on district exhibit 3, so she reserved her decision about the district's request at that time (see Tr. pp. 11-12).
After entering the parent's exhibits into the hearing record and after the district's attorney confirmed that the district rested its case-in-chief without presenting any witnesses, the IHO returned to a discussion about district exhibit 3 (see Tr. pp. 12-14). Specifically, the IHO asked the district's attorney to explain the relevance between the date of the June 1 letter—May 18, 2023—and the date it was allegedly uploaded into SESIS, May 18, 2024 (see Tr. pp. 14-15). The district's attorney stated that although the June 1 letter was dated May 18, 2023, which predated the June 1 deadline to request services for the student for the 2023-24 school year, the parent's due process complaint notice was dated May 20, 2024 and "according to [the district's] SESIS records, this alleged June 1st request for services for the [2023-24] school year only appeared days before the due process complaint [notice] was filed at the end of the school year" (Tr. p. 15). Therefore, the district's attorney indicated that it constituted a "threshold matter about whether the [p]arent [wa]s even entitled to services" under Education law 3602-c for the 2023-24 school year, and more specifically, whether the parent met the June 1 deadline (id.).
The IHO then questioned whether the district had raised the June 1 deadline as an affirmative defense, and the district's attorney referred the IHO to the "cover sheet of the disclosure" (Tr. pp. 15-16). The IHO indicated that, for "[f]uture reference," noting the affirmative defense on a cover sheet would not be sufficient to raise the defense; however, the IHO took the time to review the omnibus scheduling order and found that she had not specified a timeframe for raising an affirmative defense, so she allowed the district to raise it via the cover letter (Tr. p. 16).
The IHO then returned to the parent representative's request for communications between the parent and the CSE "beginning in April of 2023" (Tr. p. 16). The parent's representative stated that the parent submitted the June 1 notice in a "timely manner," and therefore, they should have the opportunity to "see what [the district] ha[d]" in support of its assertion (Tr. pp. 16-17). The IHO suggested that both parties needed to "submit additional documentation," such as the "SESIS events log, dating back to at least April of 2023," as well as "emails th[e p]arent ha[d] sent to the CSE from that date" in order to establish the "date when [the June 1 notice] was sent" (Tr. pp. 17, 20). The IHO explained that an email from the parent "showing the date it was sent" would allow her to make an "inference one way or the other whether or not it was received" (Tr. p. 20). As a final point, the IHO asked the district's attorney to amend the exhibit list to reflect the actual date of the June 1 notice, May 18, 2023, because she had nothing before her showing that the uploaded date, May 18, 2024, was "valid"; the district's attorney agreed to make that change (Tr. p. 21).
When the impartial hearing resumed on August 1, 2024, the district was represented by a different attorney and the parent remained represented by the same individual (compare Tr. p. 1, with Tr. p. 29).[9] At that time, the IHO entered more evidence into the hearing record; specifically, the IHO entered district exhibit 9, identified as a "SESIS events log," dated 2022 through 2024, as well as entering parent exhibit K, identified as an email, dated May 31, 2023, related to the parent's June 1 letter (Tr. pp. 36-38). After having the opportunity to review the parent's newly submitted evidence, the district's representative stated that she had no objections to the document (i.e., May 31, 2023 email) (Tr. pp. 38-42). The impartial hearing continued with the parent's representative giving an opening statement (see Tr. pp. 44-49). The district's representative indicated that she would not be presenting a case-in-chief for the district, notwithstanding the IHO's reminder that the district had subpoenaed the parent to testify (see Tr. pp. 49-50). The district's representative stated that she was "not prepared to do direct examination of the parent," and in addition, she stated that she was waiving the June 1 "arguments at th[at] time because there [wa]s no issue with the June 1st as far as [she was] concerned" (Tr. pp. 50-51).
The parent's representative then stated that, given the district's position, the parent would also rest its case-in-chief (see Tr. p. 51). However, the district's representative noted that she still wished to cross-examine the director of Learning Learners (director) and the YDS provider (id.). Neither of the witnesses were available, so the impartial hearing was adjourned to the end of August 2024 for testimony (see Tr. pp. 56-65).
The impartial hearing resumed on August 27, 2024, and at that time, the district was represented by the same attorney who began the proceeding and an attorney appeared on the parent's behalf (compare Tr. p. 1, with Tr. p. 67). In discussing some preliminary matters, the district's attorney clarified that the district was "not waiving the June 1st argument" and wanted the "parent to appear" (Tr. p. 72). The district's attorney added that he could not "speak for what [his] colleague covered for [him] in an emergency" (id.). After explaining the district's position with respect to the June 1 argument and the need for the parent's testimony, the IHO explained the proceedings at the prior impartial hearing and what had been presented in his absence by his colleague (see Tr. pp. 72-74). The IHO further noted that the only outstanding issue at that point in the impartial hearing was the "cross-examination of the two affiants" (Tr. pp. 73-74). The district's attorney stated that he understood, but would continue to raise the June 1 argument in the closing statement (see Tr. p. 74). Thereafter, the impartial hearing proceeded to its conclusion on September 4, 2024 (see Tr. p. 74-164).
In a decision dated March 31, 2025, the IHO found that the district waived its June 1 affirmative defense at the August 1, 2024 hearing, failed to implement the student's IESP, and the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SETSS for the student (see IHO Decision at p. 4, n.3).[10] More specifically, the IHO indicated that the district failed to present any evidence to establish that the student's IESP—dated October 2022—had been implemented (id. at p. 5). The IHO then found that the parent had located providers to deliver SETSS, but had not located any providers to deliver related services to the student (id.). With regard to the excessive cost of the unilaterally-obtained SETSS argued by the district, the IHO found that the evidence submitted by the district concerning "fair market rates for SETSS And Related Services" was not credible because the district did not call any witnesses to explain the study or to substantiate its contents (id. at pp. 5-6). For these reasons, the IHO ordered the district to fund or reimburse the parent for the costs of three periods per week of SETSS at a rate not to exceed $195.00 per hour and delivered by a provider selected by the parent; to fund or reimburse the parent for the costs of two periods per week of SETSS at a rate not to exceed $215.00 per hour and delivered by a provider selected by the parent; and to fund a bank of compensatory educational services for speech-language therapy, OT, and counseling services as mandated in the October 2022 IESP at a rate not to exceed $225.00 per hour for each related service area and to be delivered by providers selected by the parent (id. at pp. 6-7). The IHO also noted that the bank of compensatory educational services for the related services would expire in three years from the date of the decision (id.).
IV. Appeal for State-Level Review
The district appeals, alleging initially that the IHO erred by finding that the district waived its June 1 affirmative defense. Next, the district contends that the IHO erred by failing to conduct the proper legal analysis of the parent's unilaterally-obtained SETSS from Learning Learners and YDS. Relatedly, the district argues that the parent failed to sustain her burden to establish the appropriateness of the unilaterally-obtained SETSS. The district argues further that the IHO failed to find the parent's witnesses lacked credibility. Additionally, the district asserts that the student did not receive speech-language therapy services, SETSS was not delivered in a group setting to address the student's difficulties with social/emotional needs and peer interactions, and the hearing record lacked sufficient evidence to establish that the unilaterally-obtained SETSS providers delivered specially-designed instruction to the student. As a result, the district contends that, under the totality of circumstances, the parent's unilaterally-obtained services were not appropriate. Finally, the district asserts that the IHO erred by awarding compensatory educational services and by finding that equitable considerations weighed in favor of the parent's requested relief. For these reasons, the district seeks to vacate the IHO's decision and to deny all of the parent's requested relief.[11]
In an answer, the parent responds to the district's allegations and generally argues to uphold the IHO's decision in its entirety.
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]).[12] "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.).[13] 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
The district's arguments concerning its June 1 affirmative defense are twofold: first, the district asserts that the IHO erred by finding that it waived the defense, and second, the district asserts that the parent's evidence on this issue was insufficient to establish that the parent or a person in a parental relationship requested equitable services prior to June 1, 2023.
The parent generally denies the district's allegations, arguing that the June 1 notice to the district was not invalidated by the fact that Learning Learners submitted the document to the district on the parent's behalf. Additionally, the parent argues that the district unequivocally waived the June 1 defense at the impartial hearing.
As explained below, the evidence in the hearing record supports the IHO's finding that the district waived the June 1 defense at the impartial hearing. Alternatively, even if the district had not waived the defense, the evidence supports a determination that the parent timely and properly requested equitable services for the 2023-24 school year by June 1, 2023. Thus, the district's arguments must be dismissed.
A. June 1 Deadline
The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district 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]). With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available athttps://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available athttps://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).[14]
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
In support of its waiver argument, the district argues that the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). While legally accurate, this assertion does not address the explicit waiver of the June 1 defense made by the district's representative at the impartial hearing. Nor does the district now point to any legal authority for the proposition that, once an explicit waiver is made, a subsequent statement to the contrary successfully acts to withdraw that explicit waiver. Here, the district was represented at the impartial hearing by two different individuals. When presented with the parent's evidence purporting to establish that the parent timely and properly sent her June 1 notice to the district, the district's representative at that time made the decision to explicitly waive the previously raised June 1 defense, noting that, based on the newly entered evidence by both parties, there was no longer any issue on this point (see Tr. pp. 50-51). Thus, the district's representative knowingly waived the June 1 defense, and the district's arguments on appeal are not sufficient to disturb the IHO's finding of a valid waiver.
However, assuming for the sake of argument that the district did not waive the June 1 defense, a review of the evidence in the hearing record demonstrates that the parent properly and timely sent a June 1 request for equitable services to the district. Here, the district's reliance on Application of a Student with a Disability, Appeal No. 24-129 is misplaced. In that appeal, the parent's June 1 request was not signed by the parent, but instead, had been signed by an "individual later designated by the parent as a person in parental relation" with the student (id.). The IHO in that matter had found that the individual who signed the parent's June 1 request did not have the "authority to act on the parent's behalf" when the document was sent to the district to request equitable services (id.).
In contrast, in the present matter the district does not dispute the fact that the parent signed the June 1 request for equitable services, but rather focuses on the whether it was proper for Learning Learners—who did not have a contract with the parent for the 2023-24 school year until July 20, 2023, which was the date of the contract—to send the parent's June 1 request for services to the district in May 2023 (see generally Parent Exs. C; G; K).[15] Generally, it is well settled that there is no explicit prohibition set forth in Education Law § 3602-c against parents authorizing a third-party to deliver a June 1 request for dual enrollment services to a school district on the parents' behalf. State guidance has indicated in a question and answer format: "Must each parent file a request for services with the district of residence? Yes. Parents must file their requests for services with the district of residence. These requests may be routed through the nonpublic school in which the pupils are enrolled and then submitted collectively in accordance with proper timelines." ("Dual Enrollment Programs" available at https://www.p12.nysed.gov/nonpub/ handbookonservices/dualenrollment.html). Nor is there a requirement in the statute that the parent must use a particular type of signature or is precluded from the use of a conformed signature (see Educ. Law § 3602-c[2]). However, the statute is clear that services shall be provided to students who attend nonpublic schools within the district "upon the written request of the parent or person in parental relation" (id.).
Therefore, based on the available evidence, the parent signed the June 1 request for equitable services delivered to the district on May 31, 2023 (see Parent Ex. G; K). Accordingly, the district's argument that a third party improperly sent the parent's June 1 request must be dismissed.
B. Unilateral Placement
Having found that the parent timely and properly requested equitable services for the student for the 2023-24 school year, the next inquiry is whether, consistent with the district's appeal, the IHO erred by finding that the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SETSS for the student as delivered by Learning Learners and YDS.
Initially, the district asserts that the IHO failed to conduct a Burlington-Carter analysis in reaching the determination that the unilaterally-obtained SETSS were appropriate. A cursory review of the IHO's decision reflects that although the IHO briefly recited authority consistent with portions of the IDEA and Education law 3602-c, the IHO did not reference the Burlington-Carter standard that has been applied in similar matters (see IHO Decision at pp. 4-6).
As has been set forth previously, the student in this matter has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained SETSS services from Learning Learners and YDS 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 unilaterally-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[16] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Student Needs
Although the student's needs are not in dispute, a review thereof facilitates the discussion of the issue to be resolved, namely, whether the parent's unilaterally-obtained SETSS delivered by Learning Learners and YDS were appropriate to meet the student's needs.
As previously noted, the student's October 2022 IESP included testing results obtained from a September 2022 psychoeducational evaluation, and more specifically, from an administration of the WISC-V to the student. According to the IESP, the student received a full-scale intelligence quotient (IQ) of 91, which was in the average range (see Parent Ex. B at p. 1). The IESP also reflects that the student's processing speed index standard score of 77 was an area of personal weakness when compared to his fluid reasoning index standard score of 94 (id.). His performance on the verbal comprehension index standard score of 84 was slightly below age expectations and was characterized as "relatively weak" compared to his fluid reasoning index standard score of 94 (id.). The IESP additionally noted that the student exhibited a "particularly strong performance" on a subtest measuring visual spatial ability (id.).
Related to the student's academic ability, the October 2022 IESP reported his performance on achievement measures administered as part of the September 2022 psychoeducational evaluation as within the "lower extreme" range (first percentile) (see Parent Ex. B at p. 1). The student demonstrated a relative strength in mathematics skills; however, all other areas fell in the "below average to lower extreme range" (id.). The IESP reflected that, in the area of reading, the student performed in the "lower extreme range" (second percentile) (id. at p. 2). According to the IESP, his sight word reading was in the "below average range" (second percentile), and "he took an extended amount of time to identify" words, such as "swap, united, guarded, conductor and meant," and often responded in an "unsure tone of voice" (id.). The IESP indicated that the student's reading comprehension was in the "lower extreme range" (second percentile) (id.).
The October 2022 IESP also reflected that the student's performance on achievement measures for mathematics fell within the "below average range" (eighth percentile) (see Parent Ex. B at p. 2). Based on the testing results, the student could "compute single-digit addition and subtraction as well as double-digits without regrouping," but his performance was inconsistent when adding and subtracting "multi-digit numbers" (id.). At that time, the student multiplied and divided simple numbers but not larger numbers, and he took a long time to complete these items (id.). According to the IESP, the student performed in the average range when these skills were applied to word problems that were read to him (id.). Additionally, the student answered single and multistep word problems read to him, estimated the passage of time, and worked with money, but he had difficulty with fractions and geometry items (id.).
In the area of writing, the October 2022 IESP indicated that the student's skills fell in the "lower extreme range," with a spelling subtest score in the "lower extreme range" (less than first percentile) (Parent Ex. B at p. 2). The testing results indicated further that the student had difficulty writing sight words, and on a measure assessing his ability to construct sentences and paragraphs, punctuate items, and fill in the blanks, the student's score fell in the "lower extreme range" (id.). The IESP noted that the student "lost a good amount of credit due to not writing phonetically decodable words" (id.). According to the IESP, the student verbalized complete sentences, but did not write any complete sentences, edit his own writing, or provide passages for mechanical errors (id.). Of note, when asked to write a summary of the story created, the student wrote one word to describe what he thought of the story (id.).
The October 2022 IESP additionally reported concerns of the parent, noting that the student was "not currently receiving his SETSS," even though the parent believed the student continued to need this service (Parent Ex. B at p. 2). The parent also indicated that the student was "not currently receiving his related services," but that the student "no longer required" physical therapy (PT), and he was uncooperative "about going out for" his OT (id.). The IESP also reflected that, based on parent concerns, the student had difficulty focusing, keeping up with the class, and in the areas of expressive and receptive language skills (id.). In addition, the parent indicated that she was unsure "how he [wa]s performing in the classroom" because she had "not heard much feedback from the class teacher" (id. at pp. 2-3).
In addition to administering the WISC-V to the student as part of the September 2022 psychoeducational evaluation, the October 2022 IESP indicated that the parent completed the Behavior Assessment System for Children—Third Edition (BASC-3) as part of the reevaluation process (see Parent Ex. B at p. 3). With regard to the student's social development, the IESP reflected the parent's BASC-3 ratings, which indicated that the student "present[ed] with average internalizing behavior, suggesting that he [wa]s not overly anxious or experiencing a low mood" (id.). According to the IESP, the BASC-3 results identified concerns regarding the student's externalizing behaviors, including that the student "often argue[d] when denied his own way," he "thr[ew or] broke things when angry," and he "often . . . br[oke] or disobey[ed] rules" (id.). The student was described as having a "high activity level since he often act[ed] without thinking, c[ould not] wait to take a turn, and interrupt[ed] others" (id.). The IESP also noted that, on the BASC-3, the parent rated the student in the at-risk range for attention problems, noting further that the student was "often being easily distracted and ha[d] trouble concentrating," and he "never listen[ed] to directions or listen[ed] carefully" (id.).
As reflected in the October 2022 IESP, the student demonstrated executive functioning difficulties, such as "often be[ing] careless with his belongings" and "not always cleaning up after himself," which "might [have] be[en] maintained by poor adaptive skills" (Parent Ex. B at p. 3). Based on the BASC-3 results, the student exhibited "social difficulties" on the "social skills and withdrawal subscales" (id.). It was further noted in the IESP that although the student was "often . . . polite and show[ed] interest in others' ideas, he only sometimes ma[de] others welcome and trie[d] to help others" (id.). The student could "often tease peers," and he "often prefer[red] to play along and w[ould] only sometimes join group activities"; it was additionally noted that the student did "not make friends easily and c[ould] be shy with others" (id.). As a strength, the IESP noted that the student "like[d] to make things happen and [wa]s good at coordinating that with his peers" (id.). As parent concerns, the IESP reflected that the student "sometimes ha[d] a hard time" with "day to day socializing" and "small talk," and he would "[o]ften . . . do things to others that m[ight] irritate them"; the parent also expressed concern that the student "present[ed] with attention seeking behaviors" (id.).
As noted above, to address the student's special education needs, the October 2022 CSE recommended SETSS, speech-language therapy, counseling, and OT (see Parent Ex. B at p. 9). The CSE also recommended strategies to support the student's management needs, including the use of praise and encouragement, verbal and non-verbal sequential reminders for participation, reducing prompting, and small group instruction during academic subjects (id. at p. 4).
2.Specially-Designed Instruction
As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
In this matter, the parent contracted with two separate agencies, Learning Learners and YDS, to deliver the student's SETSS during the 2023-24 school year (see generally Parent Exs. C; I). At the impartial hearing, the director of Learning Learners (director) testified on cross-examination that, "before agreeing to provide services" to the student for the 2023-24 school year, she reviewed the student's "IESP . . . as soon as the student join[ed them on] . . . September 10" (Tr. pp. 77, 79-80). The director also testified that, at the "beginning of the school year," she and the parent discussed whether Learning Learners would deliver services to the student, and she then confirmed in her testimony that the parent signed the contract for services with Learning Learners on July 20, 2023 (Tr. pp. 80-82; see Parent Ex. C at p. 3). The director also confirmed that Learning Learners was not delivering any related services to the student during the 2023-24 school year (see Tr. p. 83). The director explained that the agency could not "find a provider" to deliver related services, so the agency did not provide them (Tr. p. 84).
With respect to the recommendation for group SETSS in the October 2022 IESP, the director testified that, although she was aware of this recommendation, Learning Learners did not offer group SETSS during the 2023-24 school year because the agency was unable "to locate an appropriate group" (Tr. p. 86). The director also testified that it was "extremely hard to find a student that match[ed] up with . . . [the student] and finding the exact time and grade level" (id.). When asked if she was aware of the recommendation to deliver SETSS within a "general education classroom," the director explained that Learning Learners delivered the student's SETSS after school and at home, which was "very beneficial" because he "really struggled academically" and "it really benefited him" (Tr. pp. 88, 95). The director also testified that the decision to provide SETSS after school was based upon an "evaluation of the student and the provider working with the student as well" (Tr. pp. 88-89).
The director confirmed in her testimony that the student's SETSS provider held an internship certificate to teach students with disabilities up to second grade and that it was her first year working with the agency; however, the director indicated that this SETSS provider was the "best fit" for the student even though he was in eighth grade during the 2023-24 school year (Tr. pp. 90-91; see Parent Ex. D at p. 1).[17] In addition, the director confirmed in her testimony that the agency worked with "providers who [we]re certified in the State of New York to teach students with special education needs beyond grade [two]," but she could not provide an exact number of such providers (Tr. pp. 89-90).
According to the director, she, herself, acted as the SETSS provider's supervisor, noting that she met with the SETSS provider "whenever something came up," but the director was unable to recall how many times she met with the SETSS provider during the 2023-24 school year (Tr. pp. 95-96). The director also confirmed that the SETSS provider did not observe the student in the classroom, and the director did not think that the SETSS provider "checked in with the student's classroom teachers" (Tr. pp. 100-01).
When asked about Learning Learners' billing practices, the director testified that a SETSS provider could not bill for a session if the "student [wa]s absent," and Learning Learners used an "app called Dragon App" to track attendance (Tr. p. 97). The director noted that the student's SETSS provider may have missed a few sessions with the student and therefore, had not billed for those missed sessions (id.).
In addition to the testimony elicited at the impartial hearing, the hearing record includes a copy of a progress report, dated June 15, 2024 (June 2024 progress report or progress report) for the 2023-24 school year, which appears to have been drafted by the Learning Learners SETSS provider (see Parent Ex. H at pp. 1, 4).[18] A review of the progress report reveals that the student exhibited delays in all subject areas, and "required constant accommodations to stay up to par with the class" (id. at p. 1). According to the progress report, the student performed below grade level in mathematics, but demonstrated proficiency in basic computation; he also required word problems broken down step-by-step due to difficulty with comprehension (id.). The progress report indicated that, to support his progress, the SETSS provider used "visual aids and structured problem-solving techniques" with the student, and he was "encouraged to verbalize his thought process during problem solving which enhance[d] comprehension, reduce[d] errors, and allow[ed] him to remember the steps for the next example" in mathematics (id. at pp. 1-2). The progress report indicated that the SETSS provider also used "[h]ands-on activities such as building models and baking" to reinforce mathematics concepts (id. at p. 2). The June 2024 progress report included three goals in the area of mathematics that the student was expected to achieve in "one year" (id.).
In reading, the June 2024 progress report indicated that the student was reading at a fourth-to-fifth grade level, but he had difficulty with "accuracy, comprehension, and answering basic 'WH' questions about texts" (Parent Ex. H at p. 2). It was noted in the progress report that because the student primarily focused "on trying to read fluently," he was "unable to recall any of the information he read" and "often assume[d] what a word [wa]s and ma[de] errors" as a result (id.). The progress report noted further that, during discussions with his class or provider about a text, the student could "answered 'why' questions and infer[red] correctly," but he had difficulty "recalling basic details" (id.). According to the progress report, the SETSS provider focused on "improving [the student's] sight-word recognition by using flashcards, timed readings, and reading drills," and to support his comprehension, the SETSS provider "br[oke] texts into smaller sections and discuss[ed] them sequentially" with the student, which also helped the student to "reduce jumping to conclusions" (id.). The progress report also related that the SETSS provider "incorporate[d] frequent comprehension checks and discussions about character motivation and plot development to deepen [the student's] engagement with texts" (id.). Similar to mathematics, the June 2024 progress report included three goals in the area of reading that the student was expected to achieve in "one year" (id.).
Next, in the area of writing, the June 2024 progress report indicated that the student had "poor handwriting, spelling difficulties, and [difficulty] organizing his thoughts coherently" (Parent Ex. H at p. 3). It was also noted that the student's "struggles with phonemic awareness spill[ed] into his spelling and writing" and his "assignments often d[id not] follow a logical sequence and [we]re disorganized" (id.). According to the progress report, the SETSS provider used "structured templates to guide his writing process," as well as "[e]xplicit instruction in phonemic awareness and spelling strategies tailored to his needs (such as spelling drills, worksheets, and activities" (id.). The SETSS provider also encouraged the student "to outline his ideas before writing" and she provided him with "graphic organizers and colored pens to help him sequence and structure his writing effectively" (id.). As in mathematics and reading, the June 2024 progress report included three goals in the area of writing that the student was expected to achieve in "one year" (id.).
Finally, the June 2024 progress report noted the student's difficulties with executive functioning skills (see Parent Ex. H at pp. 3-4). Here, the progress report reflected the student's difficulties with "planning, organization, and task completion," and noted further that he struggled to keep track of "his homework and test schedule" (id. at p. 3). To assist the student in this area, the SETSS provider "br[oke] tasks into smaller steps and provided visual reminders or checklists for routines and assignments," she "work[ed] with [the student] to verbalize his plans before starting tasks which improve[d] his ability to sequence actions and remember important details" (id.). The SETSS provider also "regularly review[ed] and adjust[ed] [the student's] organizational strategies to ensure it [wa]s working with him and his needs" (id.). The June 2024 progress report included three goals in the area of executive functioning skills that the student was expected to achieve in "one year" (id. at pp. 3-4').
Turning to the services provided by the second agency, YDS, the agency's CEO testified that he personally provided the student with three 60-minute sessions per week of SETSS at the student's nonpublic, religious school and at a YDS office beginning on September 1, 2023 (see Tr. pp. 127-28, 133-34; Parent Ex. J ¶¶ 1; 4).[19] According to the CEO, he met with the student "either in the afternoon or in the evenings," and generally on Sunday, Monday and Tuesday; the CEO also delivered the student's SETSS in a 1:1 setting because there was no group available (Tr. pp. 134, 147-148). The CEO clarified that he provided the student's SETSS at YDS on Sundays (see Tr. p. 134). The CEO additionally testified that he did not provide any SETSS in the student's general education classroom but met with the student's classroom teacher "about twice a month," or more often, if needed (Tr. pp. 148-49).[20] He also testified that YDS had never provided group SETSS, and the student was not provided with group SETSS because there was "no group" to pair the student with that would be appropriate (Tr. p. 148).
Next, the CEO testified that he maintained progress notes for every session he delivered to the student, and he sent the progress notes to the parents (see Tr. p. 149). When asked what he worked on with the student during the 2023-24 school year, the CEO testified that, in "English language," they worked on "reading," noting that the student had "issues with diphthong [sounds]" (Tr. pp. 149-50). When testifying about the costs of materials in the context of the hourly rate charged by YDS, the CEO explained that the "materials" he used during the 2023-24 school year with this student included "different curriculum books" and "things" he prepared for the student based on the "curriculum lesson" (Tr. p. 135). In addition, the CEO testified that, with any subject, the student had difficulty knowing where to start, and would "just become blank and just shut down," so the CEO would "set it up for him and do part by part" with the student (Tr. p. 150). The CEO additionally testified that he gave the student "sheets to . . . read," and worked on grammar at the same time; in mathematics, the CEO worked on multiplication facts, multiplication and division skills; and in writing, the CEO worked on improving the student's ability to express himself in writing (id.).
According to the CEO's testimony, he reviewed the student's October 2022 IESP prior to working with him (see Tr. p. 151). With respect to one annual goal in the IESP targeting the student's acquisition of "basic social skills and increas[ing] self-control by reducing incidents of socially disruptive behavior and attention seeking behaviors," the CEO testified that he addressed those needs by working on the student's "attention skills" so he could "focus better" (id.). The CEO also testified that the student could "express himself through writing" and would sometimes write about "how he would interact with others" (id.). According to the CEO, to address the student's interactions with others, he would meet with the classroom teacher and "give the student an exercise to do for that week or so" (Tr. p. 152). The CEO also indicated that he worked on "different things" with the student (id.). The CEO also testified that he monitored the student's progress with social tasks assigned to him through feedback from the student's classroom teacher (see Tr. pp. 152-53).
Upon questioning by the IHO, the CEO testified that he was aware that Learning Learners also delivered SETSS to the student (see Tr. pp. 158-59).
Other than the CEO's testimony, the hearing record contains little, if any, information about the SETSS delivered by YDS to the student during the 2023-24 school year. For example, the hearing record is devoid of any CEO's progress notes from the SETSS sessions delivered by YDS to the student (see generally Tr. pp. 1-164; Parent Exs. A-J; Dist. Exs. 1-9; IHO Ex. I). The hearing record is also devoid of evidence concerning the student's nonpublic, religious school program and how the SETSS provided to the student outside his classroom setting supported the student in his ability to access the general education curriculum (see generally Tr. pp. 1-164; Parent Exs. A-J; Dist. Exs. 1-9; IHO Ex. I). In addition, the hearing record is devoid of evidence indicating that the individual SETSS providers from Learning Learners and YDS collaborated or communicated in any way to ensure that the services were not duplicative (see generally Tr. pp. 1-164; Parent Exs. A-J; Dist. Exs. 1-9; IHO Ex. I).
In addition to the foregoing, although the student's October 2022 IESP identified needs in the areas of social/emotional skills and peer interactions, language skills, and difficulties with spatial awareness prompting the CSE to recommend related services consisting of speech-language therapy, OT, and counseling services, the evidence in the hearing record reveals that the parent did not obtain any related services for the student from either agency during the 2023-24 school year (see generally Tr. pp. 1-164; Parent Exs. A-J; Dist. Exs. 1-9; IHO Ex. I). Moreover, the evidence in the hearing record provides limited information describing how the CEO from YDS addressed the student's social/emotional skills; in contrast, the June 2024 progress report by Learning Learners did not mention any focus on the student's social/emotional skills, and the director did not testify about any interventions used to meet the student's social/emotional needs (see Tr. pp. 79-101, 151-53; see generally Parent Exs. H; J).
Finally, it must be noted that that the hearing record contains very little evidence of the student's progress during the 2023-24 school year as it pertained to the SETSS delivered by Learning Learners and YDS. For example, neither the June 2024 progress report nor the testimonial evidence by each agency witness described gains or specific, quantitative progress the student made during the 2023-24 school year (see generally Tr. pp. 1-164; Parent Exs. A-J; Dist. Exs. 1-9; IHO Ex. I). And while it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364), a finding of progress in this matter, as 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]), would have added support to make such a determination.
Overall, the evidence in the hearing record does not support the IHO's finding that the parent met her burden to prove that the services she unilaterally obtained for the student constituted appropriate instruction specially designed to address the student's unique educational needs. As noted above, 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]). However, the hearing record does not include any evidence of the instruction that the student received while attending the nonpublic, religious school during the 2023-24 school year in terms of the structure, instruction and curriculum provided, methodologies, or modifications within the core educational program. Indeed, given the student's needs and the lack of evidence that such needs were adequately addressed through the unilaterally obtained services, it is not clear from the hearing record how the student fared in the nonpublic, religious school in the classroom. For example, it is not possible to ascertain from the evidence presented whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the services delivered after school, at home, or in school from Learning Learners and YDS supported his functioning in the classroom. Without evidence regarding the school-based programming, the unilaterally obtained services were described in isolation. The lack of evidence about what the general curriculum entailed or how the SETSS supported the student's access to that curriculum makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). The absence of such information means that the services could not be evaluated in the context of the setting in which the student was purportedly being educated.
Based on the foregoing, given the totality of the circumstances, the evidence in the hearing record does not support the IHO's award as the parent failed to meet her burden to establish that the unilaterally obtained SETSS were specially designed to meet the student's needs.
VII. Conclusion
Having found that the evidence in the hearing record does not support the IHO's determination that the SETSS delivered to the student during the 2023-24 school year by Learning Learners and YDS was appropriate, the IHO's decision must be reversed.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated March 31, 2025, is modified by reversing that portions which found that the parent sustained her burden to establish the appropriateness of the student's unilaterally-obtained SETSS, delivered by Learning Learners and YDS during the 2023-24 school year and directed the district to fund the private SETSS; and,
IT IS FURTHER ORDERED that the IHO's decision, dated March 31, 2025, is modified by reversing the IHO's order directing the district to fund a bank of compensatory educational services for speech-language therapy, OT, and counseling, for parentally-selected private providers.
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]).
[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] Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school (i.e., parentally placed) 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] The parent noted on the district form that the student would be attending eighth grade during the 2023-24 school year (see Parent Ex. G).
[5] Based on the evidence in the hearing record, it appears that the district form was sent to the CSEs by Learning Learners, an agency the parent subsequently contracted with to deliver unilaterally-obtained SETSS to the student during the 2023-24 school year (compare Parent Ex. K, with Parent Ex. C at p. 1).
[6] The parent submitted evidence indicating that the YDS provider—i.e., the CEO—held an "Initial Certificate" in "Early Childhood Education (Birth-Grade 2)" and an "Initial Certificate" to instruct "Students With Disabilities (Birth-Grade 2)," both of which were effective August 17, 2023 through August 31, 2028 (Parent Ex. E at p. 2).
[7] The parent submitted evidence indicating that the Learning Learners' provider held an "Internship Certificate" to instruct "Students With Disabilities (Birth-Grade 2)," effective June 22, 2022 through August 31, 2024 (Parent Ex. E at p. 1).
[8] Based on the evidence, it appears that, for the 2023-24 school year, the student was parentally placed at the same nonpublic, religious school the student was attending at the time of the October 2022 CSE meeting (compare Parent Ex. A at p. 1, with Parent Ex. B at p. 1).
[9] To be precise, the district's attorney was not admitted in New York State, and therefore, she clarified that her title at the impartial hearing was "District representative" (Tr. p. 33).
[10] The IHO who presided over the impartial hearing was not the same IHO who issued the decision (compare Tr. pp. 1, 29, 67, 117, with IHO Decision at pp. 1, 7). For reasons unexplained, the IHO initially appointed to this matter was rescinded on March 13, 2025, and the IHO who issued the decision was appointed on March 14, 2025 (see IHO Decision at p. 4, n.2).
[11] The district indicated within the request for review that it was seeking leave to amend the request for review to "expand upon issues raised [t]herein" (Req. for Rev. ¶ 9). To date, the district has not filed any amended pleadings with the Office of State Review.
[12] 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]).
[13] 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.
[14] The statute itself is not drafted in jurisdictional terms insofar as it creates a written notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the statutory deadline (Educ. Law § 3602-c[2][a]). The Second Circuit has held that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" and that a waiver will be implied if "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). The statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the statutory deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Vaccination Requirements Applicable to All Students," at pp. 4-5 [NYSED/Office of Student Support Services], available athttps://www.nysed.gov/sites/default/files/programs/student-support-services/vaccination-requirements-applicable-to-all-students-faq.pdf).
[15] At the impartial hearing, testimony reflected that Learning Learners had provided services to the student during the 2022-23 school year (see Tr. p. 100).
[16] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Learning Learners, LLC and YDS (Educ. Law § 4404[1][c]).
[17] The director testified that the student's SETSS provider was an independent contractor, and not an employee of Learning Learners (see Tr. p. 92). While the agency charged $215.00 per hour for SETSS, the director noted that Learning Learners paid the SETSS provider $85.00 per hour (see Tr. pp. 92-93). The director testified that she had determined the rate to pay the SETSS provider, which she characterized as the "standard rate," and that the remaining portion of the agency's hourly rate—i.e., $130.00—went to "overhead," such as loan payments, provider payments, educational development, training courses, rental space, office staff, supervision, a bookkeeper, an accountant, and costs associated with the agency's computer application identified as "Dragon App" (Tr. pp. 93-94). When asked if it was mandatory for SETSS providers to attend training, the director testified that it was "definitely encourage[d]" (Tr. pp. 94-95).
[18] The director testified that the SETSS provider had never observed the student in his classroom, and she did not think that the SETSS provider had ever "check[ed] in with the student's classroom teachers" (Tr. pp. 100-01). In contrast, the June 2024 progress report reflected that the student's "provider and teacher work[ed] together through multiple modalities and methods to help achieve his learning goals" (Parent Ex. H at p. 1).
[19] At the impartial hearing, the CEO testified during cross-examination that he was the sole SETSS provider at YDS at that time (see Tr. p. 129). The CEO later testified that although he was not certified to teach eighth grade, he was working to obtain an initial certificate to teacher students with disabilities (all grades) and had completed all his coursework, but he still needed to take the "New York State exams" (Tr. pp. 153-55, 157). According to the CEO, he had been teaching "for many years" and had experience teaching students in fourth through eighth grades (Tr. p. 155-57).
[20] With respect to the hourly rate charged by YDS for SETSS—i.e., $195.00 per hour—the CEO testified that he calculated such rate based on researching rates, attending educational seminars to keep up-to-date, and noting that "expenses . . . always [went] up a little" (Tr. pp. 131-32). The CEO indicated that "expenses" referred to costs for a rental office and materials and for classes he took (Tr. p. 133). However, the CEO also indicated that he did not pay for rent "if services were provided at the school" (Tr. p. 135). Of the $195.00 per hour, the CEO testified that he personally received $175.00 (see Tr. pp. 135-36). The CEO also testified that YDS paid attorney fees for "all of the parents who bring claims" and that the costs for attorney fees factored into the overhead costs related to SETSS (see Tr. pp. 140-46).