STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-280
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:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nate Munk, 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 his request that respondent (the district) fund the costs of his son's private services delivered by AIM Further Inc. (AIM) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which awarded compensatory educational services. The appeal must be dismissed. The cross-appeal must be sustained.
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
On June 10, 2022, a Committee on Preschool Special Education (CPSE) convened, determined that the student was eligible for special education as a preschool student with a disability, and developed an IEP for the student (Parent Ex. B at pp. 1-3).[1] At the time of the June 2022 CPSE meeting, the student was attending an early childhood program at Mirrer Yeshiva K'tana, a nonpublic school selected by the parent (see Parent Ex. B at pp. 1, 3; Dist. Ex. 6). The June 2022 CPSE recommended for the student a 12-month program consisting of 12 hours per week of 2:1 special education itinerant teacher (SEIT) services; three 30-minute sessions per week of individual speech-language therapy; and two 30-minute sessions per week of individual occupational therapy (OT) (Parent Ex. B at pp. 1-3, 15-16, 18). In addition, the CPSE recommended two 30-minute sessions per month of parent counseling and training (Parent Ex. B at p. 15).
On May 5, 2023, a CSE convened, determined that the student was eligible for special education as a student with autism, and developed the student's first school-age IEP with a projected implementation date of September 7, 2023 (see Dist. Exs. 5 at pp. 1-2; 7 at pp. 1-2).[2] At the time of the May 2023 CSE meeting, the student was attending Mirrer Yeshiva K'tana for pre-kindergarten (Dist. Ex. 5 at pp. 1-2). The May 2023 CSE recommended that the student attend a 12:1+1 special class in a district public school and receive related services of three 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual OT all on a 10-month basis (Dist. Ex. 5 at pp. 11-12, 14; 7 at pp. 1-2).[3] The CSE also recommended four 60-minute sessions per year of parent counseling and training (Dist. Ex. 5 at p. 11).
On August 4, 2023, the district issued a prior written notice and a school location letter (Dist. Ex. 7 at pp. 1, 5). The prior written notice memorialized the recommendations of the May 2023 CSE, as well as the other placement options considered (compare Dist. Ex. 7 at pp. 1-2, with Dist. Ex. 5 at pp. 11-12, 16). The school location letter identified the public-school site to which the district assigned the student to attend to receive the recommended special education programming (Dist. Ex. 7 at p. 5).
The student continued attending Mirrer Yeshiva K'tana for the 2023-24 school year, his kindergarten school year (see Parent Ex. I; Dist. Ex. 5 at p. 1).
On May 31, 2024, the parent signed a parental notice of intent and provided the form to the district, expressing an intent to place the student at Mirrer Yeshiva K'tana at the parent's expense (see Dist. Ex. 6).[4] The notice included the following handwritten statement: "[t]he undersigned does not intend to forgo any and all rights and options that [the student] has to a free public school placement that is appropriate for his needs" (id.).
On July 25, 2024, the parent entered into a contract with AIM, a private educational agency, under which AIM would provide the student with special education services for the duration of the 2024-25 school year (Parent Ex. D at pp. 1-2). The contract indicated, specifically, that AIM "intend[ed] to provide the following services:" 12 periods per week of special education teacher support services (SETSS) or SEIT services at a rate of $218.00 per hour; three periods per week of speech-language therapy at a rate of $250.00 per hour; and two periods per week of OT at a rate of $250.00 per hour (id. at p. 2). Under the contract's terms, the parent would be "liable to pay Aim . . . the full amount in the event that [an] Impartial Hearing Officer does not issue a ruling for the full amount requested" (id.).
During the 2024-25 school year, the student attended first grade at Mirrer Yeshiva K'tana and received SETSS through AIM (see Parent Exs. E ¶¶ 1, 4-5; H at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated September 23, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at pp. 1-2). Specifically, the parent alleged that a 2023 individualized education services program (IESP) was the last program developed for the student; that the district "did not develop an appropriate program . . . for the 2024-2025 school year"; and that the district "fail[ed] to provide service providers for the 2024-2025 school year" (id.). The parent also disputed the appropriateness of a 2023 "IESP" and invoked pendency based on the student's June 2022 IEP (id.). As relief, the parent requested an order awarding funding of all services recommended in the June 2022 IEP for the 2024-25 school year, at the providers' enhanced rates, along with such "compensatory relief as may be appropriate based on the [district]'s failure to provide services to the student" (id. at p. 2).
B. Impartial Hearing Officer Decision
After two prehearing conferences, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-63). The hearing commenced on March 28, 2025 and concluded on March 31, 2025, after two days of proceedings (see Tr. pp. 13-63; Mar. 31, 2025 Tr. pp. 13-48).[5] The parent offered various exhibits, each of which the IHO admitted into evidence (see Tr. p. 24; Parent Exs. A-J).[6] The parent's exhibits included testimony by affidavit from AIM's financial administrator, who appeared for cross-examination (Tr. p. 24; Mar. 31, 2025 Tr. pp. 15-32; Parent Ex. E). The parent also testified during the hearing (Tr. pp. 28-49). The district presented no witness testimony but offered several exhibits, each of which the IHO admitted into evidence (see Tr. pp. 22-23, 27; Dist. Exs. 1-7).
In a decision dated April 8, 2025, the IHO found that the district denied the student a FAPE for the 2024-25 school year because the district conceded its "fail[ure] to create an IEP or offer a placement to [the] [s]tudent" (IHO Decision at pp. 2, 6).
The IHO then addressed whether the "unilaterally selected placement [wa]s appropriate for [the] [s]tudent," finding that the parent did not meet his burden in that regard (IHO Decision at pp. 6-7). The IHO reasoned that, according to the parent's testimony, the "[s]tudent's mainstream teachers [we]re not equipped to serve his needs"; the student could not function in his mainstream classroom without a SETSS provider present; and the student received 1:1 support from a SETSS provider "at all times except lunch and recess" (id.).[7] According to the IHO, such testimony called into question whether placement in a general education classroom, with the addition of SETSS, was appropriate to meet the student's needs, and, moreover, how the contracted frequency of SETSS—12 hours per week or about one-third of the hours in a typical school week—could be sufficient to provide the student with "a meaningful educational benefit" (id. at p. 7).[8] Noting that "SETSS is not meant to be a standalone curriculum," the IHO further reasoned that the absence of evidence "connecting the SETSS provided to the general education curriculum" precluded a finding that the unilaterally selected placement was appropriate (id.).[9]
Despite having found that the parent did not establish the appropriateness of the unilateral placement, the IHO weighed equitable considerations "for completeness of the record" (IHO Decision at p. 7). The IHO found that equitable considerations did not favor the parent because the parent failed to provide a 10-day notice of his intention to seek reimbursement for a unilateral placement, a legal requirement that allows the district an opportunity to remedy the parent's claims (id. at pp. 7-8).[10]
"Finally, [the IHO] address[ed] [the] [p]arent's request for compensatory relief due to the [district's] failure to create a program for [the] [s]tudent for [the] 2024-2025" school year (IHO Decision at p. 8). According to the IHO, an award of "compensatory banks of hours[,] based on the mandates for [speech-language therapy] and OT [included] [in] [the] [s]tudent's most recent, 2023, IEP[,]" would place the student in the position he "would have been in . . . had the [district] created a program . . . for 2024-2025" (id.).
Based on the above-described findings, the IHO denied the "[p]arent's claim for funding for [12] hours of SETSS/SEIT per week for the 2024-2025 school year" but ordered the district to schedule a CSE meeting, re-evaluate the student if appropriate, and "develop an appropriate IEP for [the] [s]tudent" if the district "ha[d] not created an IEP for [the] [s]tudent within the past 365 days" (IHO Decision at p. 9). Additionally, the IHO ordered the district to fund banks of compensatory services, providing "[t]wo 30-minute sessions per week of [OT]" and "[t]hree 30-minute sessions per week of [s]peech [l]anguage [t]herapy," "for the time period beginning [on] September 1, 2024 and ending [on] June 30, 2025 or the date [on which the] [s]tudent's next IEP is created[,] whichever comes sooner" (id.).[11]
IV. Appeal for State-Level Review
The parent appeals, and the district cross appeals. The parties' familiarity with the issues raised in their respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail. According to the parent, the IHO erred in finding that the unilaterally selected program was not appropriate; in finding that equitable considerations did not favor the parent; and in failing to award funding of the services recommended in the student's 2022 IEP under pendency. According to the district, the IHO's decision should be affirmed except that the award of compensatory related services should be reversed.
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]).[12]
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
Initially, I note that neither party has appealed the IHO's determination that the district denied the student a FAPE for the 2024-25 school year. Accordingly, that determination has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A. Unilaterally Obtained Services
In this matter, the parent placed the student in a general education classroom at a nonpublic school with private services from AIM, without the consent of school district officials, and then commenced a due process proceeding to obtain remuneration for the costs of such unilaterally obtained services. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the cost of the private services obtained from AIM.
"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. Parents can obtain retroactive reimbursement from the school district after the IEP 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 Carter, 510 U.S. at 14 [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 SETSS provided to the student by AIM must be assessed under that framework.
With respect to the unilateral programming, 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. 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 student's most recent IEP, created on May 23, 2023 while the student attended pre-kindergarten at Mirrer Yeshiva K'tana, reported the following information (Dist. Ex. 5 at pp. 2, 15).[13] The student had a low average IQ and presented with delays in cognition; language/communication skills; reading readiness; math readiness; social/emotional/behavioral functioning; motor skills; prewriting/handwriting; and activities of daily living (id. at p. 2).[14] The student "ha[d] no phonemic awareness skills;" could not "write his first and last name;" could not rote count from one to 10; and could not identify numbers (id.).[15] He knew basic shapes, however, and "demonstrated strength[] with classifying objects by category as the same or different" (id. at pp. 2-3). The student's language deficits included expressive and receptive challenges, difficulty following auditory directions, and articulation issues impacting intelligibility (id. at p. 3). In terms of social functioning, the student struggled with peer interaction (see id.). He often isolated himself and exhibited difficulties with maintaining eye contact and sharing (id.). In terms of physical development, the student presented with "low [muscle] tone, overall weakness, and poor bilateral coordination" (id. at p. 4). He displayed challenges with fine and gross motor skills, affecting daily activities like dressing and maintaining a tripod grasp (id.).
The hearing record also includes a progress report, prepared by the student's SETSS providers from AIM while he attended first grade at Mirrer Yeshiva K'tana (see Parent Exs. E ¶¶ 1-2; H at pp. 1, 6). The progress report described the student's needs and then-current functioning across the following domains: cognition, attention, reading, writing, math, language, behavior, and social/emotional skills (see Parent Ex. H at pp. 1-4). According to the progress report the student struggled to concentrate, had a short attention span, had difficulty applying learned information to new situations, had difficulty understanding abstract instructions, and required continuous review and repetition to learn new skills (id. at pp. 1-4).
Regarding reading specifically, the SETSS progress report provided the following information. The student read "at a slower pace than his peers" (Parent Ex. H at p. 2). His "phonemic awareness skills [we]re extremely weak" and he struggled "tremendously" to recognize the sounds in consonant blends (id. at pp. 1-2). The student "confus[ed] letters and sometimes for[got] the[ir] names" (id. at p. 2).[16] The student was familiar with sight words in the order in which they were presented but did "not always recall them" "when questioned out of sequence" (id.). The student could answer "Who, What, Where, When, and Why" questions, but he struggled to answer abstract questions and could not "draw inferences from the information provided" (id.).
The SETSS progress report provided the following information regarding the student's writing skills. The student's "visual perception and hand-eye coordination [we]re below grade level," affecting his ability to copy letters and form them legibly (Parent Ex. H at p. 2).[17] The student struggled to copy letters, "often writ[ing] them backwards" (id.). "It t[ook] him very long to form . . . letters[,] and they [we]re often illegible" (id.). "When asked to write his name, [the student] kn[ew] the correct letters but ha[d] difficulty [forming] them on his own" (id.). The student also had difficulty creating drawings and could not write numbers (id.).
As for math, the SETSS progress report indicated that the student could "identify numbers almost to 100" but had difficulty "recognizing . . . written numbers past [10]" (Parent Ex. H at p. 2). The progress report further indicated that the student could "add [two] numbers using his fingers and subtract by crossing off" (id.). He often answered incorrectly "at first[,] but with assistance he c[ould] [reach] the right answer using manipulatives" (id.).
The SETSS progress report provided the following information regarding the student's language skills. The student's notable language delays greatly impacted "[h]is academic and social-emotional behavior," with his phonological deficiencies adversely affecting "[h]is overall performance in class" (Parent Ex. H at p. 4). The student did not speak clearly and "ha[d] difficulty expressing himself" (id.). "He rarely sp[oke] up in class" due to embarrassment (id.). The student "ha[d] a very good vocabulary," but he had difficulty using conversational rules and would jump from one topic to an unrelated topic (id.). The student had difficulty following a conversation and would not volunteer information (id.).
With respect to the student's behavior and social/emotional functioning, the SETSS progress report stated that the student did not regard adults as a source of authority or as available "to help him" (Parent Ex. H at p. 3). He would "not raise his hand and ask for adult assistance" (id. at p. 4). According to the progress report, the student would look to his classmates for guidance because he could not "comprehend the teacher's abstract instructions" (id.). The student would become frustrated and start crying, without using words, because he had difficulty expressing his needs (see id.). In the event of a temper tantrum or task refusal, the student was not receptive to encouragement or positive reinforcement (see id. at p. 3). The student was often distracted in the classroom and would disregard directives (id.). Sometimes the student was oblivious to his surroundings, and he would "stare out the window or remain in the same place for extended periods of time" (id.). Although the student was "gradually gaining a greater awareness of his environment," he was generally "not conscious of his surroundings or the individuals . . . in his immediate vicinity" (id. at pp. 3-4). Finally, the SETSS progress report noted that the student "also ha[d] [difficulty] sustaining eye contact" (id. at p. 3).
2. SETSS from AIM
The parent contends that he met his burden to prove the appropriateness of the services provided to the student by AIM during the 2024-25 school year and that the IHO erred in finding otherwise. The parent argues that AIM assessed the student to understand his unique needs; planned targeted methodologies to address those needs; created a student treatment plan to provide a detailed and specific program; and prepared a progress report that corroborated its understanding of the student's needs and the way in which its services addressed those needs. The parent further argues that he chose a program that previously worked for the student and testified in detail regarding the progress the student made as a result of AIM's services. The parent also disputes the IHO's finding that the student received more than 12 hours per week of SETSS.
The district contends that the IHO's determination should be affirmed, arguing that AIM's progress report does not clearly outline the progress attributable to its services or the way in which those services related to the student's classroom curriculum. The district further argues that the parent's testimony raised concern that a general education classroom is not an appropriate educational setting for the student and that AIM's financial administrator supplied no details regarding the student's SETSS sessions, the drafting of progress reports, the development of curriculum, or the implementation of certain techniques and methodologies. Finally, the district argues that, although the parent's contract with AIM contemplated that the agency would provide the student with all recommended services, the record evidence indicates that the student did not receive speech-language therapy or OT during the 2024-25 school year.
For the reasons that follow, the hearing record supports the IHO's determination that the parent failed to prove that the SETSS he unilaterally obtained from AIM for the 2024-25 school year were appropriate for the student.
The pertinent evidence in the hearing record includes a treatment plan prepared by AIM (Parent Ex. G); the above-described progress report (Parent Ex. H);[18] testimony from the parent (Tr. pp. 28-49); and testimony from AIM's financial administrator (Mar. 31, 2025 Tr. pp. 15-32; Parent Ex. E). Notably, the hearing record does not include session notes, time sheets, attendance records, a class schedule, or testimony from the student's SETSS providers.[19]
The evidence in the hearing record establishes that, during the 2024-25 school year, AIM provided the student with SETSS from two separate providers at his nonpublic school (see Tr. pp. 34-35; March 31, 2025 Tr. pp. 18-19, 23; Parent Exs. E ¶¶ 1-2, 4-5; H at pp. 1, 6).[20] The record evidence does not provide the date on which the student began receiving SETSS through AIM,[21] and it lacks clarity with regard to the timing, frequency, duration, and location of the student's SETSS sessions (see Tr. pp. 50-53; Mar. 31, 2025 Tr. pp. 18-19, 29-30; Parent Ex. E ¶ 4).[22]
The treatment plan identified the student's areas of delay; provided an intervention plan for each area using strategies like positive reinforcement and task breakdown; and recommended goals to improve the student's reading, writing, math, language, and social/emotional skills (Parent Ex. G at pp. 1-4).[23] The SETSS progress report described the student's then-current classroom functioning and recommended new goals in the aforementioned domains (Parent Ex. H at pp. 1-6). However, the treatment plan is undated; the progress report does not state the year in which it was prepared; and, while it can be inferred that those documents pertain to the 2024-25 school year from their description of the student's age and grade-level, neither document explicitly states as much (Parent Exs. G at p. 1; H at pp. 1, 6).[24] Hence, their relevance to the school year at issue is uncertain.
In any event, the Burlington-Carter framework, as described above, requires the parent to prove that the services he unilaterally obtained for the student constituted specially designed instruction. 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]).
Overall, the evidence in the hearing record supplies little information regarding the manner in which AIM addressed the student's unique needs. Despite reflecting AIM's intention to address the student's identified needs, the treatment plan and progress report supply little information concerning the activities undertaken during SETSS sessions (see Parent Exs. G; H; Dist. Ex. 5 at pp. 1-4). The parent testified that the student was "learning how to [write letters and] sound words out," spelling some words correctly, and improving his social skills (Tr. pp. 37-38), but the parent did not discuss the particular interventions and methodologies used to support the student. AIM's financial administrator admitted that he could not supply details regarding the student's SETSS sessions or academic instruction (see Tr. pp. 19, 23).
While the hearing record includes some limited evidence of specially designed instruction, it includes no information regarding the curriculum at the student's nonpublic school or the instruction the student received from his nonpublic school outside of the SETSS from AIM. Nor does the evidence in the hearing record describe the way in which the student's SETSS supported him in the general education classroom. Without such information, it is not possible to ascertain whether the student received special education support in the classroom that enabled him to access the general education curriculum or whether the SETSS delivered to the student, even if provided in a separate location, supported his classroom functioning.
According to AIM's financial administrator, the student received SETSS primarily on a pull-out basis because his teachers were not able to "control [his behavior] in the classroom" (Mar. 31, 2025 Tr. pp. 18-19). Similarly, the parent testified that the student's classroom teachers were "not equipped to handle children," adding "I guess that's why you have special classes . . ." (Tr. p. 47). Such testimony not only suggests that a general education classroom was not an appropriate educational setting for the student, it also raises concern that SETSS may have been used to replace, rather than support, the student's general education instruction.
Finally, the record evidence indicates that, despite a documented need for speech-language therapy and OT, the student did not receive those services during the 2024-25 school year (see Tr. pp. 52-53; Parent Ex. H at pp. 2, 4; Dist. Exs. 2 at pp. 1, 16; 5 at pp. 3-4, 11).
Therefore, considering that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students, under the totality of the circumstances, the parent failed to prove that the SETSS he unilaterally obtained from AIM were appropriate (see, e.g., 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]; Application of a Student with a Disability, Appeal No. 24-548 [finding that the parent failed to prove the appropriateness of unilaterally obtained SETSS where the hearing recorded included no evidence regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of a Student with a Disability, Appeal No. 24-478 [finding that the parent failed to prove the appropriateness of unilaterally obtained SETSS where the session notes lacked "information regarding how the SETSS providers addressed the student's . . . identified needs in reading and math"]; see generallyApplication of a Student with a Disability, Appeal No. 25-018 [explaining that a progress report was, alone, insufficient to support a finding that the unilaterally obtained SETSS were appropriate to meet to the student's needs, given concerns with the report's reliability]; Application 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]).
B. Compensatory Education
In its answer and cross-appeal, the district contends that the IHO's award of compensatory services should be reversed. According to the district, the student's program should not be bifurcated between services unilaterally obtained by the parent, to be funded retroactively, and services funded prospectively as compensatory education. Citing an SRO's decision in Application of a Student with a Disability, Appeal No. 25-007, the district further argues that the record evidence does not support a compensatory education award, as the parent signed a contract for the provision of related services but did not pursue such services.[25]
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compareP.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], withE. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]). Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).
In this case, the parent's due process complaint notice raised the matter of compensatory education as relief for the district's "failure to provide services to [the] student" (Parent Ex. A at p. 2). The parties do not dispute that the district failed to "create an IEP or offer a placement to [the] [s]tudent" for the 2024-25 school year; that the student was entitled to receive OT and speech-language therapy, as recommended in the May 2023 IEP; and that the student did not receive such services during the 2024-25 school year (see Tr. pp. 25-27, 52-53; Mar. 31, 2025 Tr. p. 32; Dist. Ex. 5 at pp. 11, 15; IHO Decision at pp. 2, 6; Answer & Cr.-Appeal at pp. 6, 10). The parent's contract with AIM stated that "the [a]gency intend[ed] to provide" three periods per week of speech-language therapy and two periods per week of OT (Parent Ex. D at p. 2), but, according to the parent's testimony, AIM was not providing those services due to difficulties in locating providers (Tr. pp. 52-52). The parent also testified that he was "fine with" "OT and speech being taken out" (Tr. p. 36). The hearing record includes no further information explaining AIM's failure to deliver related services to the student in accordance with its contract. Therefore, "under the particular circumstances of this matter[,] where the parent engaged in self-help and may have declined related services, I find no basis for an award of compensatory education to, in effect, remediate gaps in the unilateral programming" that the parent arranged (Application of a Student with a Disability, Appeal No. 25-007 [reversing the IHO's award of compensatory SEIT services where the hearing record lacked "evidence concerning the parent's efforts to obtain, or [the provider agency's] efforts to provide, the recommended SEIT services"]; see also Application of a Student with a Disability, Appeal No. 25-140; Application of a Student with a Disability, Appeal No. 24-625 [reversing the IHO's award of compensatory services "to make up for gaps in the unilateral programming arranged for by the parents" where the hearing record lacked "specific evidence regarding difficulties arranging for the services"]; see generallyApplication of the Bd. of Educ., Appeal No. 02-047 [denying compensatory education relief where the parent declined services that the district offered]). As a result, I agree with the district that the portion of the IHO's decision which awarded banks of compensatory OT and speech-language therapy hours is unsupported by the hearing record and must be reversed.
C. Pendency
Finally, the parties dispute whether the IHO should have ordered funding of the unilaterally obtained services under pendency. The parent contends that the IHO should have ordered funding of all services recommended in the student's 2022 IEP under pendency, as the 2023 IEP was never implemented. The district agrees that pendency lies in the 2022 IEP but contends that, once the parent enrolled the student in a private school and unilaterally obtained providers to implement the student's program, the parent effectively rejected the pendency program.
Unless the student's parents and the school district otherwise agree, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino, 959 F.3d at 531; T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]). In this case, however, the district was not required to implement pendency.
In Ventura de Paulino, the Second Circuit Court of Appeals explained that, as per the text and structure of the IDEA, it is the district that is authorized to decide how and where a student's pendency services are to be provided (959 F.3d at 532-35). For that reason, also considering that the district is the party responsible for funding the pendency services, the Second Circuit held that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding (id. at pp. 524-25, 532-36). The Court observed that:
If a parent disagrees with a school district's decision on how to provide a child's educational program, the parent has at least three options under the IDEA: (1) The parent can argue that the school district's decision unilaterally modifies the student's pendency placement and the parent could invoke the stay-put provision to prevent the school district from doing so; (2) The parent can determine that the agreed-upon educational program would be better provided somewhere else and thus seek to persuade the school district to pay for the program's new services on a pendency basis; or (3) The parent can determine that the program would be better provided somewhere else, enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved
(id. at p. 534). Here, the parent elected the third option when he unilaterally obtained private services for the student at his own financial risk (see Parent Exs. D; E ¶¶ 1, 4-5). Consequently, the district had no obligation to provide pendency services, and the parent had no entitlement to receive pendency funding, for the 2024-25 school year, during which time the student received unilaterally obtained SETSS from AIM (see Parent Exs. D; E ¶¶ 1, 4-5; Application of a Student with a Disability, Appeal No. 24-188 [finding that the parent was not entitled to compensatory SETSS under pendency, as the parent contracted with a private agency to deliver SETSS to the student]).
VII. Conclusion
The hearing record supports the IHO's determination that the parent failed to establish the appropriateness of the services he unilaterally obtained from AIM for the 2024-25 school year, but it does not support the IHO's award of compensatory education for unimplemented OT and speech-language therapy. Nor does the hearing record provide a basis to award funding of the unilaterally obtained services under pendency. Having found that the parent failed to establish the appropriateness of the unilaterally obtained services, the necessary inquiry is at an end, and I need not address whether equitable considerations support the parent's request for relief.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated April 8, 2025, is modified by reversing that portion of the decision which awarded the parent banks of compensatory related services.
Footnotes
[1] Parent Exhibit B, the June 2022 IEP, appears duplicative of District Exhibit 2; however, Parent Exhibit B differs in page length from District Exhibit 2, which includes a blank page (compare Parent Ex. B at p. 2, with Dist. Ex. 2 at p. 2). For purposes of this decision, only Parent Exhibit B will be cited.
[2] The student's eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[3] The May 2023 CSE recommended that the student attend a 12:1+1 special class for 10 periods per week of math; 10 periods per week of English language arts (ELA); five periods per week of sciences; and five periods per week of social studies (Dist. Ex. 5 at p. 11).
[4] The language in the form by which the parent would request special education services to be provided to the student was crossed out (Dist. Ex. 6). The form included language regarding a parentally placed non-public school student at parental expense and the June 1 deadline for dual enrollment services but, as noted, struck out the language indicating that the parent was requesting services in favor of the hand-written notations.
[5] The transcript for the March 31, 2025 hearing date is not paginated sequentially with the preceding transcripts. Thus, the March 31, 2025 transcript will be cited as "Mar. 31, 2025 Tr." and the three preceding, sequentially paginated transcripts will be cited as "Tr.".
[6] Parent Exhibits A through J into were offered and admitted into evidence; but the parent's representative decided not to offer proposed Parent Exhibit K for admission (Tr. p. 24).
[7] The IHO found that the student was receiving greater than the contracted frequency of SETSS based on testimony from the parent that the student was "receiv[ing] 1:1 support at all times except lunch and recess" (IHO Decision at p. 7).
[8] The IHO noted that the financial administrator neither disputed that the student may have been receiving additional hours of SETSS, for which the agency was not billing, nor explained why the agency "would not bill for additional hours . . . or include th[em] . . . in [the] [p]arent's contract" (IHO Decision at p. 7). The IHO further noted that the "[p]arent . . . did not explain why [he] would sign a contract for fewer hours of services than the [s]tudent need[ed] or [was] in fact receiving" (id.).
[9] According to the IHO, it was "impossible to determine whether [the] [s]tudent [wa]s . . . learning a modified curriculum with his SETSS provider[] or whether the [student's] SETSS sessions focus[ed] on an entirely different curriculum . . . , essentially provided a 1:1 special education program" (IHO Decision at p. 7).
[10] The IHO found that the "[p]arent submitted a June 1[] letter[,] which is not applicable for IEP students," instead of a 10-day notice of unilateral placement (IHO Decision at pp. 7-8).
[11] The IHO ordered that the compensatory services would be "be provided at [district] market rates by providers of [the] [p]arent's choosing" and would expire if not utilized by April 8, 2026 (IHO Decision at p. 9).
[12] 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).
[13] The information included in the present levels of performance section of the May 2023 IEP was derived from the following sources: a 2020 psychological evaluation; a 2023 SETSS progress report; a 2023 speech progress report; a 2023 OT progress report; and parental input (see Dist. Ex. 5 at pp. 1-4).
[14] According to an undated treatment plan from AIM, the student "required intensive individualized support to acquire new skills and concepts" (Parent Ex. G at p. 1).
[15] In an apparent contradiction, the May 2023 IEP reported that the student could not rote count from one to 10 and that the student "demonstrated strength[] with . . . counting by rote" (compare Dist. Ex. 5 at p. 2, with Dist. Ex. 5 at p. 3). The IEP also reported that, according to the parent, the student could "rote count but . . . [d]id not understand the concept of counting" (Dist. Ex. 5 at p. 3).
[16] According to the SETSS progress report, it was necessary to teach the student letters "in both the forward and backward direction" (Parent Ex. H at p. 1).
[17] According to the SETSS progress report, the student's poor motor planning hindered "his function and performance in the classroom" (Parent Ex. H. at p. 2).
[18] For reasons unknown, the SETSS progress report from AIM was prepared with the district's letterhead (Parent Exhibit H).
[19] AIM's financial administrator testified that the agency invested in software to assist the providers in "track[ing] . . . sessions, writing session notes, [and] generating timesheets" (Mar. 31, 2025 Tr. p. 25). Yet, the parent did not present session notes or timesheets before the IHO (see Tr. p. 24; Parent Exs. A-J).
[20] 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).
[21] AIM's financial administrator testified that he did not know the date on which AIM began working with the student for the 2024-25 school year (Mar. 31, 2025 Tr. pp. 17-18).
[22] AIM's financial administrator testified via affidavit that the student received 12 one-hour sessions per week (Parent Ex. E ¶ 4), but, on cross-examination, he admitted that AIM may have provided additional, uncompensated hours (Mar. 31, 2025 Tr. pp. 29-30). According to the parent's testimony, the student typically received SETSS each day that he attended school, but the parent could not say with certainty how many SETSS hours the student received each school day (Tr. pp. 50-51).
[23] The treatment plan was authored by a "Special Education Provider" other than the student's SETSS providers for the 2024-25 school year (see Parent Exs. E ¶ 2; G at p. 4).
[24] The SETSS progress report from AIM bears the date "January 2nd" but does not specify the year (Parent Ex. H at p. 6).
[25] According to the district, the parent did not want related services from AIM.