STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-269
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Sarah M. Pourhosseini, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Alpha Student Support Services (Apha) for the 2023-24 school year. The district cross-appeals, contending that the parent's request for review should be rejected for noncompliance with State regulations governing appeals to the Office of State Review. The appeal must be dismissed. 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 student's educational history, the procedural history of the case, and the IHO's decision will not be recited in detail.
A CSE convened for a meeting on May 31, 2023 (Parent Ex. D at pp. 1, 28). Participants in the May 2023 CSE meeting included a district representative, a related service provider/special education teacher, the student's mother, and the site coordinator for the student's nonpublic school (see id. at pp. 1, 4, 30-31).
The May 2023 CSE determined that the student was eligible for special education as a student with a speech or language impairment and developed an IEP with a projected implementation date of September 5, 2023 (Parent Ex. D at pp. 1, 22-23, 28).[1], [2] The CSE recommended the student attend a 10-month program consisting of placement in a general education classroom with bilingual integrated co-teaching (ICT) services and related services (id. at pp. 22-23).[3] For related services, the CSE recommended two 30-minute sessions per week of individual counseling; one 30-minute session per week of counseling in a group of three; two 30-minute sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of individual speech-language therapy; and one 30-minute sessions per week of speech-language therapy in a group of three (id.).
On September 4, 2023, the student's other parent signed a contract with Alpha for the provision of special education teacher support services (SETSS) or special education itinerant teacher (SEIT) services at a rate of $195.00 per hour for the 2023-24 school year (Parent Ex. E at pp. 1-2).[4]Under the contract's terms, the signatory would be responsible for "pay[ing] the full amount" due to Alpha unless he "secure[d] funding from the [district] or elsewhere" (id. at p. 2)
During the 2023-24 school year, the student's 10th grade year, he attended a nonpublic school and received special education services from Alpha (see Parent Exs. D at pp. 1, 31; G at p. 1; H ¶ 19).
A. Due Process Complaint Notice
In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at pp. 1-2). Specifically, the parent alleged that the district "failed to recommend an appropriate placement" and failed to provide a school location letter (id. at p. 2). The parent invoked pendency based on a prior, unappealed IHO decision dated January 9, 2023 (id. at pp. 2, 6). According to the parent, the student's pendency program consisted of 10 hours per week of individual SETSS, delivered in Yiddish; two 30-minute sessions per week of individual OT, delivered in Yiddish; and two 30-minutes sessions per week of individual speech-language therapy, delivered in Yiddish (id. at p. 3). As relief, the parent requested funding of the services that comprise the student's pendency program for the 2023-24 school year, "at the provider's contracted rate," along with compensatory education for any portion of that school year during which the student did not receive services (id.).
B. Impartial Hearing and Impartial Hearing Officer Decision
An impartial hearing took place on February 3, 2025 before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-41). The parent presented various exhibits, all but one of which the IHO admitted into evidence (see Tr. pp. 11-14; Parent Exs. A; C-I).[5] The parent's exhibits included testimony by affidavit from Alpha's program director, who appeared for cross-examination during the hearing, and from the parent (see Tr. pp. 11, 14-33; Parent Exs. H; I).[6] The district presented no witness testimony but offered several exhibits, each of which the IHO admitted into evidence (see Tr. pp. 9-11, 14; Dist. Exs. 1-5). During the hearing, the parent's counsel requested funding of 10 hours per week of SETSS/SEIT services on a 12-month basis, citing the student's preschool IEP from 2012 (Tr. pp. 35-38; Parent Ex. C at pp. 1-3, 6, 22-23).
In a decision dated April 3, 2025, the IHO found that the district failed to meet its burden of proving that it offered the student a FAPE for the 2023-24 school year (IHO Decision at p. 5). The IHO reasoned that the district presented no evidence to explain the recommended program other than the report of a 2019 psychoeducational evaluation, which was nearly four years old at the time of the May 2023 CSE meeting, and the subject IEP, which did not explain why the CSE recommended ICT services for the student (id. at pp. 5-6).
However, the IHO denied the requested relief (IHO Decision at pp. 7-8). The IHO reasoned that SEIT services, which are intended for preschool students, "are not an appropriate form of relief for a" school-aged student (id. at pp. 6-7).[7] The IHO further reasoned that the parent failed, in any event, to prove that the services provided by Alpha were appropriate for the student (id.) In that regard, the IHO explained that the progress report included in the hearing record "described areas in which [the] [s]tudent had difficulty but failed to describe the methods of instruction . . . utilized [with] [the] [s]tudent, why those methods were selected, and how the student responded" (id. at p. 6). The IHO further noted that the parent presented "no explanation as to why [certain] goals were selected for [the] [s]tudent, how those goals were tailored to [the] [s]tudent's specific needs[,] and wh[ich] methodologies would be used to achieve the[m]" (id. at pp. 6-7).
In addition, the IHO found that the parent did not present "sufficient evidence of substantial regression to support the [student's] need for an extended school year" (IHO Decision at p. 7). Thus, according to the IHO, "the hearing record d[id] not support [the] [p]arent's claim that [the] [s]tudent required a 12-month special education program" (id.).
Having determined that the parent failed to establish the appropriateness of the unilaterally obtained services, the IHO declined to address whether equitable considerations supported the parent's request for relief (see IHO Decision at pp. 6-8).
IV. Appeal for State-Level Review
The parent appeals, contending that the IHO erred in denying the requested funding. The parent argues that the allegations in her due process complaint notice "should be deemed as true" because the district did not challenge such allegations; that the unilaterally selected program was "most appropriate" because the district not did establish the appropriateness of the recommended program; and that she established the appropriateness of the unilaterally selected program in any event (Req. for Rev. at pp. 4-6). The parent seeks an order directing the district to fund 10 hours per week of SETSS/SEIT services at the contracted rate, contending that no equitable considerations justify a rate reduction.
The district interposed an answer and cross-appeal, submitting additional evidence therewith. The district contends that the parent's request for review should be dismissed for noncompliance with the State regulations governing appeals to the Office of State Review. Alternatively, the district contends that the IHO's denial of relief should be affirmed. The district concedes that it did not satisfy its burden of proving that it offered the student a FAPE; but the district argues that the parent is not entitled to a default judgment and contends that the parent failed to meet her burden of establishing the appropriateness of the unilaterally obtained services. Finally, the district contends that if the services are found appropriate, equitable considerations do not favor the parent and that an SRO should deny, or at least reduce, the requested relief accordingly.
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]).[8]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Preliminary Matters
As noted above, the district contends that the parent's request for review should be rejected for noncompliance with State regulations governing appeals to the Office of State Review. Specifically, the district asserts that it is impossible to tell whether the request for review was properly verified because it is undated. The district also notes that the request for review lacks a handwritten signature and instead bears the conformed signature of the parent's attorney. In support, the district submits proposed SRO Exhibit 1, a letter in which the Office of State Review rejected a pleading in another State level proceeding involving a different student (Proposed SRO Exhibit 1 at p. 1). According to the subject letter, the rejected pleading lacked proper verification because the verification predated the pleading itself (id.). In opposition, the parent argues that the request for review is signed and verified; that the practice regulations do not state that the request for review must be dated; and that the district's additional evidence is not pertinent to the matter at hand.
Initially, I decline to accept the district's additional, documentary evidence for admission and consideration on appeal, as I find it is unnecessary to render a decision in this matter (see 8 NYCRR 279.10[b] [stating that an SRO "may seek additional . . . evidence if he or she determines that such additional evidence is necessary"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).
I now turn to the district's request that an SRO reject the parent's request for review.
The failure to comply with the practice requirements of Part 279 of the State regulations may indeed result in the rejection of submitted documents or the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]-[b]; 279.13; see T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]). However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]).
The practice regulations require that "[a]ll pleadings and papers submitted to a[n] [SRO] in connection with an appeal [] be endorsed with the name, mailing address, and telephone number of the party submitting the same or, if a party is represented by counsel, with the name, mailing address, and telephone number of the party's attorney" (8 NYCRR 279.7[a]). In addition, "[a]ll pleadings shall be signed by an attorney, or by a party if the party is not represented by an attorney" (8 NYCRR 279.8[a][4]). 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, although in this instance the lack of a date on the request for review does not warrant dismissal of the pleading, it is possible that in the future a continued failure to date requests for review may raise suspicion as to the veracity and timing of the submitted documents, including the verification.
Consistent with the district's assertion, the parent's request for review bears the conformed signature of the parent's attorney (i.e., "/s/" followed by the attorney's typed name) (Req. for Rev. at p. 8). Notably, the practice regulations do not state whether a conformed signature meets the requirement that all pleadings be signed (8 NYCRR 279.8[a][4]). Regardless of whether the conformed signature meets practice requirements, the parent's attorney complied with the requirement to endorse his name, mailing address, and telephone number (8 NYCRR 279.7[a], 279.8[a][4]); and there is no indication that the district was prejudiced in any way by the use of a conformed signature in this instance. Therefore, in an exercise of my discretion, I decline to dismiss the parent's request for review based on the lack of a date or the lack of a handwritten signature (see, e.g., Application of a Student with a Disability, Appeal No. 25-101 [declining to reject a request for review that "b[ore] the conformed signature of the parent's attorney"]).
The practice regulations also require verification of all pleadings submitted to an SRO in connection with an appeal (see 8 NYCRR 279.7[b]). When the appeal is taken by the student's parent or parents, "[t]he request for review shall be verified by the oath of at least one" such petitioner (see id.). Verification of a document entails a sworn statement that the affiant knows the contents of the document and knows the contents of the document to be true; or, with respect allegations made "upon information and belief," the affiant believes the allegations to be true (see 8 NYCRR 279.7[b][1]).
Here, the parent's attorney filed an undated request for review with an affidavit of verification that was signed by the parent and notarized (Req. for Rev. at pp. 8-9). Upon review of the parent's filing, nothing appears to indicate that the parent signed the verification without having read the completed request for review. Accordingly, as the parent submitted a proper verification on its face, and the district has not presented a sufficient argument to challenge the verification's validity, there is insufficient basis for rejecting the request for review, and I decline to do so in this matter (see, e.g., Application of a Student with a Disability, Appeal No. 25-101 [declining to reject a request for review, absent indication that the pleading was improperly verified].
B. Unilaterally Obtained Services
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).[autotext 7/27/17]
1. The 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 unilaterally obtained services were appropriate for the student.
The hearing record includes the results of a psychoeducational evaluation, conducted on July 25, 2019 (Dist. Ex. 3 at p. 1). At that time, the student had just completed fifth grade (see id.). The 2019 evaluation included administration of the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V) to assess the student's cognitive functioning and the Woodcock-Johnson IV Tests of Achievement (WJ IV ACH)to assess the student's academic functioning (Parent Ex. D at pp. 1-2; Dist. Ex. 3 at pp. 5-6). Administration of the WISC-V yielded a full-scale IQ of 94, which suggested the student's intellectual functioning fell in the average range when compared to other children his age (Parent Ex. D at p. 1; Dist. Ex. 3 at pp. 1-2). The psychoeducational evaluation report indicated that "[a]s measured by the WISC-V," "language skills [] appear[ed] to be one of [the student]'s lowest areas of functioning" (Parent Ex. D at pp. 1-2; Dist. Ex. 3 at p. 3). Turning to the student's academic achievement, the psychoeducational evaluation report indicated as measured by the WJ IV ACH, the student's "academic skills ranged between [a] mid-[fif]th grade" level in solving math word problems and an early second grade level in spelling and writing (Parent Ex. D at p. 2; Dist. Ex. 3 at p. 5).
The hearing record also includes the May 2023 IEP, developed while the student attended ninth grade at a nonpublic school (see Parent Ex. D at pp. 1, 28; Dist. Ex. 3 at p. 1). The present levels of performance section of the IEP reported the following information regarding the student's academic functioning, language skills, social development, and physical development.[9]
The student exhibited a severe lack of focus, showed "no interest in academics," and "function[ed] far below the level of his mainstream peers" in reading and math (Parent Ex. D at pp. 3-4). The student's reading skills, described as being at a third-grade level, were negatively affected by his limited sight word knowledge, poor vocabulary, and poor comprehension (see id. at p. 3). In reading, the student struggled with decoding; making predictions; summarizing; comparing and contrasting; identifying main ideas; and drawing inferences (id.). The student's math skills were described as being between a second and third-grade level (id.). Turning to math, the IEP indicated the student was "still mastering the basics of addition and subtraction," and he could not "add or subtract with regrouping" (id.). The student "ha[d] not mastered basic multiplication and division;" and, thus, any math skills built on multiplication and division were beyond his abilities (id.).
The IEP noted the student also exhibited deficits in his expressive, receptive, and pragmatic language skills (Parent Ex. D. at pp. 3-4). He had difficulty expressing his needs; and he struggled with comprehension, critical thinking, and drawing inferences from information presented to him (id. at pp. 3-4). The student's "comprehension of language [wa]s often at a concrete level," "severely diminish[ing] his fund of knowledge" (id. at p. 4).
According to the IEP, the student had "difficulty acting in an age-appropriate and socially expected manner," which "hinder[ed] his academic and social development" (Parent Ex. D at p. 4). He was described as charming and creative but immature and lacking patience (id. at pp. 4-6). The student had friends and liked interacting with others, but he could become frustrated with others or even aggressive (id.).
The student was described as "a healthy child with no history of asthma, allergies, or major illness" (Dist. Ex. 3 at p. 5). The student had a diagnosis of ADHD, for which he took medication at home (see id.). He had "no other known diagnoses" and took no other medication (id.). The student wore glasses, but his "hearing [wa]s within normal limits" (id.). Historically, OT was recommended to "address[] fine motor [skills], visual/perceptual/motor skills, strength, motor planning, bilateral coordination, endurance, body equilibrium, and upper-limb coordination skills;" but the student did not receive the recommended OT (id.).
2. Services from Alpha
As noted above, the parties dispute whether the parent is entitled to funding for the services provided to the student by Alpha during the 2023-24 school year.
The parent seems to argue that the unilaterally obtained services should be deemed appropriate merely because the district failed to establish the appropriateness of the recommended program, arguing that because the district did not prove that it had ICT services available in a Yiddish speaking classroom, SEIT/SETSS were "the only option." The parent further argues that the progress report from Alpha evidences the tailoring of services to the student's educational needs by credentialed providers. The district contends that the parent failed to establish the appropriateness of the unilaterally obtained services, citing evidence that the student, attending 10th grade during the time period at issue, received services intended for preschool students. The district further argues as follows: the record lacks sufficient evidence regarding the curriculum at the student's nonpublic school and the connection between the services delivered by Alpha and the student's general education instruction; the July 2024 progress report does not establish that Alpha's services were appropriate; the record is devoid of any other documentary evidence to support the appropriateness of the Alpha's services; and the student was not receiving the related services recommended in the May 2023 IEP.[10]
As explained below, the hearing record supports the conclusion that the parent failed to establish the appropriateness of the services that she unilaterally obtained from Alpha, albeit for reasons that differ from the IHO's rationale.
First, the Burlington-Carter framework, as described above, requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction, which 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]; 34 CFR 300.39[b][3]). Although the parent need not show that the student received every special service necessary to maximize her potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the [student] to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.[11] Thus, contrary to the IHO's reasoning, it is the individualization of the unilaterally obtained services, rather than the terminology used to describe those services (i.e., SETSS versus SEIT services) that is of consequence; and contrary to the parent's contention, the inquiry does not end with the district's failure to establish that the recommended program was appropriate.[12]
The evidence in the hearing record establishes that the student received 10 hours per week of individual "special education services" through Alpha during the 2023-24 school year (Tr. p. 19; Parent Exs. H ¶¶ 12-13; I ¶ 6).[13] Alpha's program director testified via affidavit that services were provided in the student's mainstream school, "typically [] outside of the classroom," and that Alpha measured the student's progress "through quarterly assessments, consistent meetings with the provider and support staff," classroom observation, and daily session notes (Parent Ex. H ¶¶ 19, 21-22). No such assessments or session notes were presented before the IHO, however. Nor does the hearing record include time sheets, attendance records, a class schedule, or testimony from the student's direct service provider.
The hearing record includes a progress report prepared by the student's direct service provider in July 2024 (Parent Exs. G at pp. 1, 6; H ¶¶ 13-14). According to the progress report, the student exhibited weaknesses in cognition, receptive and expressive language skills, nonverbal communication skills, and social skills that "affect[ed] him in all academic domains" (Parent Ex. G at pp. 1-6). The progress report provided the following information regarding the student's classroom functioning and the provider's efforts to address the student's educational needs.[14]
According to the July 2024 progress report, the student's executive functioning skills were "highly inadequate and non-age appropriate" (Parent Ex. G at p. 3). He "fail[ed] to think ahead and plan;" struggled with problem solving; and struggled to "manag[e] his time accurately" (id.). "Multi-step directions [we]re exceptionally difficult for him" (id.). The student also "ha[d] difficulty shifting or dividing his attention" (id.). He "often misse[d] classroom instructions" due to distraction, struggled "to complete his classwork, and "misse[d] out on important skills" (id.). The student required "verbal prompting to complete his work and to ask for help [or] clarification" (see id.).
The progress report also indicated the student "struggle[d] with flexibility and d[id] [not] adapt easily to change" (Parent Ex. G at p. 3). He "need[ed] to be told in advance of any upcoming changes," as "[s]udden changes c[ould] make him anxious and upset" (id.). The student "also struggle[d] with perspective taking skills," as "[h]e ha[d] difficulty [considering] other people's opinions or thoughts" (id.). When bothered, the student "react[ed] in a childish manner" (id.). To help the student improve his social skills, his provider used role playing to explore scenarios and appropriate reactions (id.). The student "show[ed] progress and willingness to continue improving his social skills" (id.).
In reading, the progress report noted the student struggled with "basic [] concepts such as[] decoding, fluency, sight words[,] and phonological awareness" (Parent Ex. G at p. 1). The student could "read basic 'cvc' words and[,] when . . . adequately focused, he c[ould] also decode 'cvce' words and 'cvvc' words correctly" (id.). However, the student's lack of focus and hyperactivity impacted his ability "to improve his decoding and fluency" (id.). To improve the student's decoding skills, the student's provider "prompt[ed] him to divide multi-syllabic words, read each syllable independently[,] and then re-read the entire word" (id.). Additionally, the student's provider "worked with him to build up a" bank of sight words that he could read effortlessly (id.).
Next, the progress report indicated that due to the degree of effort needed to decode, the student could not simultaneously comprehend written text (Parent Ex. G at p. 2). To improve the student's comprehension, his provider would "read[] a text to him and [then] ask[] him questions [about] the story he [] heard" (id.). "At the beginning of the year, [the student] had difficulty answering 'wh' questions and sequencing a story he had heard" (id.). "After working with his provider throughout the school year, [he] c[ould] answer basic 'who' or 'what' questions and summarize the story into short chronological pointers" (id.). Additionally, the student's provider "work[ed] with him on concepts that require higher-order thinking, such as inferencing, predicting, summarizing, analyzing characters, and analyzing the author's purpose" (id.).
According to the progress report, the student was also performing "poorly in writing and grammar" (Parent Ex. G at p. 5). His writing was unfocused and disorganized, and he had difficulty expanding on ideas (id.). "At the start of the school year, [the student] wrote in sentence fragments and run-on sentences" (id.). The student's "provider [] worked with him on developing proper sentences, including a noun, verb, and correct punctuation," and "enhanc[ing] his writing with adjectives and adverbs" (id.). The student received prompting to "capitaliz[e] [] the beginning of a sentence," use proper nouns, and "stay consistent with his tenses and first- or third person perspectives" (id.)
The progress report stated the student "ha[d] made some progress with math" (Parent Ex. G at p. 4). By the end of the school year, the student understood place value and "ha[d] mastered double digit addition and subtraction without regrouping" (see id.). The student's provider "taught him the concept of regrouping;" but, due to difficulty staying focused, the student struggled "to complete the multiple steps in regrouping" (id.). The student had mastered some of the simpler multiplication functions but had not yet "grasped the concepts of fractions, decimals, and percents" (id.).
By itself, the July 2024 progress report indicates that the services provided to the student addressed his identified areas of weakness in reading, writing, math, and social functioning. However, the hearing record includes no information regarding the curriculum at the student's nonpublic school; the instruction that the student received from his nonpublic school outside of the services from Alpha; or the way in which Alpha's services supported the student in his general education classroom. Without such information, it is not possible to ascertain whether the student received special education support in the classroom to enable him to access the general education curriculum or whether the services delivered to the student, even if provided in a separate location, supported his classroom functioning. Although the progress report provides some evidence of specially designed instruction, given that specially designed instruction is, by definition, the adaptation of instruction to allow a student to access a general education curriculum and meet the educational standards that apply to all students, the evidence in the hearing record is, overall, insufficient to demonstrate that the student's program was appropriate to meet his needs.
Moreover, despite the student's documented language deficits, the hearing record lacks evidence that the student received speech-language therapy during the 2023-24 school year (see Parent Exs. D at pp. 1, 3-4, 6-7; G at pp. 1, 6; Dist. Ex. 3 at pp. 1, 7). The progress report included a goal for the student to "increase his receptive and expressive language skills" but supplied no details regarding the way in which Alpha's services addressed those needs (Parent Ex. G at p. 6).
Finally, aside from the lack of essential evidence, the hearing record also includes evidence suggesting that the unilaterally selected program was not appropriate. For example, Alpha's program director testified that the student was "not [really] a mainstream student" and that his services were "typically provided outside of the classroom" (Tr. p. 20; Parent Ex. H ¶ 21). Furthermore, the May 2023 IEP indicates that, when asked, the site coordinator for the student's nonpublic school "stated that he was not sure if [the school] offered secular studies;" and the student's "mother thought the school had secular studies but [did not] know" which secular studies were offered (see Parent Ex. D at p. 4). Such evidence not only suggests that a general education classroom was not an appropriate educational setting for the student, it also raises concern that Alpha's services may have been used to replace, rather than support, the student's instruction in a general education curriculum.
Therefore, considering the totality of the circumstances, the parent did not meet her burden of proving that Alpha's services were appropriate for the student (see, e.g., Application of a Student with a Disability, Appeal No. 25-175 [finding that the parent failed to prove the appropriateness of the unilaterally obtained services where the record evidence described such services in isolation, that is, "[w]ithout evidence regarding the school-based programming"]; Application of a Student with a Disability, Appeal No. 25-136 [finding that the parent failed to prove the appropriateness of the unilaterally obtained services where the hearing record included evidence of the student's need for speech-language therapy but lacked "information regarding the delivery" thereof]; see generallyApplication of a Student with a Disability, Appeal No. 25-104 [finding that the parent failed to prove the appropriateness of the unilaterally obtained SETSS where the hearing record included evidence that SETSS were used to replace general education instruction]).
VII. Conclusion
In summary, I decline to accept the district's additional evidence for admission and consideration on appeal; I decline to reject the parent's request for review for noncompliance with the applicable practice regulations; and I find that the parent failed to establish the appropriateness of the services she unilaterally obtained from Alpha for the 2023-24 school year. Thus, the necessary inquiry is at an end, and I need not address whether equitable considerations support the parent's request for relief (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
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] Duplicate copies of the May 2023 IEP appear in the hearing record as Parent Exhibit D and District Exhibit 2. For purposes of this decision, only the parent's exhibit is cited.
[3] The May 2023 CSE recommended English language ICT services for five periods per week in English language arts (ELA) in addition to Yiddish language ICT services for five periods per week in math, social studies, and sciences (Parent Ex. D at p. 22).
[4] The terms SETSS and SEIT services were used interchangeably throughout the hearing record (Tr. pp. 4, 36-38; see Parent Exs. A at pp. 2-3; E at p. 2; Req. for Rev. at pp. 2, 3, 4, 5, 8). 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). SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]). The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district; a static and reliable definition of "SETSS" does not exist within the district; and, unless the parties and the IHO take the time to develop a record on the topic in each proceeding, it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (see Application of a Student with a Disability, Appeal No. 19-047).
[5] Parent Exhibits A and C through I were admitted into evidence, but proposed Parent Exhibit B, an IHO decision dated January 9, 2023, was excluded (Tr. pp. 11, 13-14)
[6] The district declined the opportunity to cross-examine the parent (Tr. pp. 14-15).
[7] The IHO noted that the parent's request for funding of 10 hours per week of SEIT services for the 2023-24 school year was based on the student's September 2012 preschool IEP (IHO Decision at p. 6).
[8] 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).
[9] The information reported in the present levels of performance section of the May 2023 IEP, which included the results of the 2019 psychoeducational evaluation, was derived from the following sources: input from the parent and school personnel, provided during the CSE meeting; the student's previous IEP, developed in March 2022; a March 2022 SETSS progress report; a March 2022 speech-language progress report; and a March 2022 vocational interview with the parent (Parent Ex. D at pp. 1-7). Although the May 2023 CSE meeting was a described as a triennial review, the district had not conducted new evaluations (see id. at p. 2). According to the May 2023 IEP, the district contacted the parent and the student's school to obtain updated progress reports, but none were provided (id.).
[10] The district notes that, although the student was found eligible for special education as a student with a speech or language impairment, he was not receiving speech-language therapy.
[11] A parent may obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L., 744 F.3d at 838-39 [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G., 459 F.3d at 365). In this instance, the parent is seeking funding for 10 hours per week of SETSS/SEIT services and is not seeking funding for the tuition for the general education school the student is attending; however, having rejected an IEP for the student which recommended the student be placed in a general education classroom with the support of ICT services and related services (Parent Ex. D at pp. 22-23), there is no basis for finding that the general education portion of the student's instruction would not be part of the student's unilateral placement.
[12] Under State law, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking funding of the cost of a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).
[13] Alpha's program director testified that, although the district recommended group services, Alpha provided the student's services individually, as "a similarly situated group of students" could not be located (Parent Ex. H ¶ 17).
[14] The progress report included goals in the areas of reading, reading comprehension, writing, math, and behavior; but it is unclear whether those goals reflect the skills targeted during the 2023-24 school year or recommendations for the following school year (see Parent Ex. pp. 1-6).