STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-281
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 Lindsay R. VanFleet, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request for funding for the Little Apple Services Agency (Little Apple) and A&R 1&1 Corp. (A&R) for services delivered to the student during the 2023-24 school year. Respondent (the district) cross-appeals, arguing that the IHO lacked subject matter jurisdiction over the parent's claims. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
Information regarding the student's educational history is sparse. On January 22, 2018, a CSE convened, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of February 5, 2018 (Parent Ex. C at pp. 1, 8, 10). The January 2018 CSE recommended that the student receive five periods per week of group SETSS in Yiddish; two 30-minute sessions per week of individual speech-language therapy in Yiddish; two 30-minute sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of individual physical therapy (PT); and one 30-minute session per week of individual counseling services in Yiddish with all of the services to be delivered in a separate location (id. at p. 8). By prior written notice dated February 2, 2018, the district informed the parent of the January 2018 CSE's recommendations in writing (id. at pp. 11-14).[1]
A CSE next convened on November 12, 2020 and found the student eligible for special education as a student with an other health impairment (Parent Ex. P at p. 1). . The November 2020 CSE recommended that the student receive seven periods per week of group SETSS in Yiddish; two 30-minute sessions per week of individual PT; two 30-minute sessions per week of individual speech-language therapy in Yiddish; two 30-minute sessions per week of individual OT; one 30-minute session per week of individual counseling services in Yiddish; and full-time individual paraprofessional services to assist with the student’s medical needs (id. at p. 11). The November 2020 IESP had a projected implementation date of November 30, 2020 (id. at pp. 1, 11).
On or around May 22, 2023, the parent notified the district that she had placed the student in a nonpublic school for the 2023-24 school year and would be seeking the district's provision of special education services at the nonpublic school (Parent Ex. N).
On September 1, 2023, the parent signed a contract with Little Apple for the services of a full-time paraprofessional for the student for the 2023-24 school year at the rate of $60 per hour (Parent Ex. F). The parent signed a contract with A&R on September 1, 2023 for SETSS at a frequency of eight one-hour sessions per week on a 10-month basis at the rate of $205 per hour (Parent Ex. I at pp. 1, 2). The student began receiving SETSS from A&R on September 3, 2023 (Parent Ex. L at p. 1). According to the owner and administrator of Little Apple, the agency began delivering approximately 35 Hours per week of paraprofessional services to the student on September 4, 2023 (Tr. p. 110; Parent Ex. G).
In November 2023 the student had surgery and missed approximately four weeks of school (Tr. pp. 95-97, 113; Parent Ex. L at pp. 3-4).
A February 2024 SETSS progress report indicated the student's academic skills were delayed and that he displayed poor social/emotional skills and low self-esteem (Parent Ex. J.
On April 2, 2024, a CSE convened and developed an IESP for the student with a projected implementation date of April 16, 2024 (Parent Ex. Q). The April 2024 CSE recommended that the student receive seven periods per week of group SETSS in Yiddish; one 30-minute session per week of individual speech-language therapy in Yiddish; one 30-minute session per week of group speech-language therapy in Yiddish; two 30-minute sessions per week of individual OT; two 30-minute sessions per week of individual PT; one 30-minute session per week of individual counseling services in Yiddish; and full-time group paraprofessional services for assistance with medical needs (id. at pp. 12-13). By prior written notice dated April 9, 2024, the district informed the parent of the April 2024 CSE's recommendations in writing (Parent Ex. E).[2]
A. Due Process Complaint Notice
The parent filed a due process complaint notice on August 12, 2024, later amended on September 18, 2024, in which she alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Exs. A; O). As an initial matter, the parent requested pendency and asserted that the January 2018 IESP "as modified by a findings of fact and decision dated September 29, 2020" was the last program the parent agreed with (Parent Ex. A at pp. 1, 2). The parent asserted that under the September 2020 IHO decision, the district was ordered to provide the student with a program of eight periods per week of group SETSS; two 30-minute sessions per week of speech language therapy; two 30-minute sessions per week of OT; two 30-minute sessions per week of PT; one 30-minute session per week of counseling services; and the support of a full-time individual paraprofessional services (id. at p. 1). In addition, the parent asserted that the district failed to provider any of the student's recommended services, forcing the parent to secure private providers for SETSS, speech-language therapy, OT, PT, counseling and paraprofessional services on her own (id.). According to the parent, due to the district's failure to provide the student's services, not all services were delivered (id.). The parent requested an award of pendency, direct funding for SETSS, related services, and paraprofessional services at the providers' established rates, and an award of compensatory education for services that the district did not deliver to the student during the 2023-24 school year (id. at p. 2).
The district submitted a due process response, dated September 25, 2024, raising affirmative defenses and attaching a copy of the April 2024 prior written notice (see Due Process Response).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on January 16, 2025 and concluded on February 2, 2025 (Tr. pp. 13-145).[3], [4], [5] In a decision dated April 8, 2025, the IHO noted that she was "applying a modified Burlington-Carter analysis to th[e] case" (IHO Decision at p. 5). The IHO found that the district failed to prove that it provided the student with a FAPE for the 2023-24 school year in that it failed to implement the November 12, 2020 or April 2, 2024 IESP (id. at pp. 6, 7-8). In addition, the IHO determined that the parent failed to establish that the services provided by Little Apple and A&R were appropriately tailored to meet the student's unique needs (id. at pp. 6, 8-13). The IHO based this ruling, in part, on her finding that the A&R witness "did not provide any credible evidence to explain the basis for the eight periods of SETSS being provided to Student during the 2023-2024 school year," that there "was no evidence in the record recommending eight periods of SETSS for the student," "there [wa]s no evidence in the record regarding Student's general education in the[] nonpublic school," including "the instruction and curriculum provided," that she "d[id] not give much weight" to the progress report as it was unclear if it was created by the student's direct provider and listed the student as being in the wrong grade, and because the student's January 2018 IESP, which the parent asserted was the basis for pendency, did not recommend paraprofessional services (id. at pp. 10-12). The IHO also explained that the student's SETSS provider was not appropriately credentialed to teach the student (id. at p. 12). Although the IHO held that the parent had not met her burden of proof, the IHO weighed equitable considerations and found that, had she ruled that the parent met her burden of proof, she would have reduced the requested rates for the services provided to the student to a "reasonable market rate" (id. at pp. 13-17). Related to her equitable considerations, the IHO determined that the parent's testimony regarding her outreach to providers was not credible and noted that the purported outreach form that the parent provided as evidence of her attempts to contact providers was dated after the school year at issue (id. at p. 16).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred by: not allowing the September 2020 IHO decision, which allegedly ordered the district to fund eight hours of SETSS per week, into the hearing record; giving little weight to the documentary evidence presented and finding insufficient evidence the unilaterally obtained services were appropriate; finding the parent's testimony to be not credible; failing to find that the district acted inequitably; in denying the parent's requested relief; by not at least awarding seven hours of SETSS per week pursuant to the November 2020 and April 2024 IESPs; and by failing to award compensatory relief for the OT, PT and counseling services the student did not receive for the 2023-24 school year.
The district submits an answer and cross-appeal, arguing that the IHO decision should be affirmed but raising a cross-appeal asserting that the IHO lacks subject matter jurisdiction to hear the parent's implementation claim and that the student is not entitled to pendency as part of this proceeding. Further, the district alleges that the parent's appeal does not comply with the practice regulations and should be rejected.[6]
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[7] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[8] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Preliminary Matter
1. Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the issue of subject matter jurisdiction raised by the district in its cross-appeal. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues in its cross-appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Although not explicitly argued at the impartial hearing before the IHO, a lack of jurisdiction "can never be forfeited or waived" U.S. v. Cotton, 535 U.S. 625, 630 [2002]). Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
Recently in a number of decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-264; Application of a Student with a Disability, Appeal No. 25-220; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).[9]
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, parents would not have a right to due process under federal law; however, the student did not merely have a services plan developed pursuant to federal law, and the parents did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[10]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]). State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[11] In addition, the New York Court of Appeals has explained that students authorized to received services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[12]
Consistent with the district's position that there is not and has never been a right to bring a due process complaint for implementation of IESP claims, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings—Rate Disputes," Office of Special Educ. [Aug. 2024]).[13] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 [2d Cir. 2009], quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[14] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that, within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Unilaterally-Obtained Services
In determining whether the district was required to fund the SETSS provided by A&R and the paraprofessional services provided by Little Apple during the 2023-24 school year, the IHO held that the parent failed to establish that the unilateral services she obtained were appropriate to meet the student’s identified needs (IHO Decision pp. 8-9). Regarding SETSS, the IHO held that there was no evidence in the hearing record that the SETSS provided by A&R were specially designed to meet the student's unique needs (id. at p. 9). Regarding the paraprofessional services delivered by Little Apple, the IHO held that the program which the parent sought to implement, the January 2018 IESP, did not recommend paraprofessional services for the student and that the testimony given by the witness on behalf of Little Apple reflected that he did not possess substantive knowledge of the student and his needs (id. at pp. 12-13). In addition, the IHO noted that "without evidence regarding [the s]tudent's general education program, there [wa]s insufficient evidence to find that [the s]tudent's program was appropriate (id. at p. 12). In sum, given the totality of the circumstances, the IHO determined that there was insufficient evidence that the instruction was reasonably calculated to enable student to receive an educational benefit and the IHO denied the parent's request for funding for SETSS and paraprofessional services (id. at p. 13).
Turning to a review of the appropriateness of the 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).
The parent raises a number of allegations related to the standard to be applied. According to the parent, the lack of evidence regarding the student's general education program at the nonpublic school should not have been a basis to deny the parent's requested relief and the analysis should only focus on the program as designed as opposed to "a post-delivery of services analysis." The parent further argues that the IHO erred by not admitting the September 2020 IHO decision into the hearing record, alleging that the September 2020 IHO decision would have established the basis for the parent's request for eight hours per week of SETSS.
In consideration of the parent's assertions, it is must be noted that the student's educational program must be judged based on the school year at issue (see Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [finding that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). Additionally, the parent failed to include a copy of the September 2020 IHO decision with her appeal; accordingly, even if it were relevant to the parent's assertion that the SETSS and paraprofessional services delivered to the student during the 2023-24 school year were appropriate, it is not a part of the hearing record (Tr. pp. 18, 21-23; see Req. for Rev.).
Further, 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. 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]). Additionally, a review of the appropriateness of a unilateral placement is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836). Further, rather than being confined to a review of the types of services included in the unilateral programming, as the parent contends, the standard, as described above, must take into account totality of the circumstances, which may include factors such as methodology, student performance, and the delivery of the services. Accordingly, the below analysis must follow the Second Circuit's determination that consideration must be given to "the totality of the circumstances in determining whether [a unilateral] placement reasonably serves a child's individual needs" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.Student’s Needs
Although not in dispute, a discussion of the student's special education needs provides context to resolve the parties' dispute on appeal, namely, whether the unilaterally obtained services were appropriate for the student. Overall, the hearing record contains some information to identify the student's needs, including the student's January 2018 IESP, November 2020 IESP, February 2024 A&R SETSS progress report, and April 2024 IESP (Parent Exs. C; M; P-Q). Accordingly, a summary of the information from those documents is provided below.
a. January 2018 IESP
The parent asserts that the last agreed upon educational program for the student was the January 2018 IESP (Parent Ex. C). According to a February 2, 2018 prior written notice, the January 2018 CSE reviewed and discussed a December 7, 2017 psychoeducational evaluation report, a January 22, 2018 OT progress report, and a January 22, 2018 speech-language progress report (id. at pp. 11-12).
The January 2018 IESP reflected the results of a November 2017 administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), which based on the student's performance yielded a full scale IQ in the low average range (id. at p. 1). The IESP also reflected the student's performance on the Wechsler Individual Achievement Test-Third Edition (WIAT-III) where he attained "[a]verage" scores in spelling and numerical operations, and "[v]ery [l]ow" scores in word reading and reading comprehension (Parent Ex. C at p. 1). With regard to spelling, the IESP indicated the student was able to write his first and last names using evenly sized and spaced manuscript letters and proper capitalization (id. at p. 2). In spelling and word reading, the student made errors suggesting "insecure knowledge of vowel usage" (id.). In word reading, the student was able to read a narrow range of words for his grade level (id.). According to the IESP, the student struggled with reading comprehension at the third-grade level, and read more fluently at a second-grade level (id.). Although h the student still made errors in decoding he was able to answer a few fact questions about all selections (id.). The student's abilities in numerical operations fell solidly in the average range (id.). The IESP noted the student could calculate addition and subtraction problems with renaming and demonstrated knowledge of all multiplication tables tested (id.). He was unable to find products for two-digit numbers multiplied by one-digit numbers and had no knowledge of division (id.).
Turning to speech-language development, the IESP indicated the student exhibited a moderate receptive-expressive language disorder as well as auditory processing difficulties (Parent Ex. C at p. 2). Receptively, the student exhibited difficulties with following multi-step directions and answering simple "Wh" questions based on auditorily presented material (id.). Expressively, the student often displayed word finding difficulties and was able to only provide two to three examples when naming members of a category (id.). The student also presented with reduced narrative skills and often left out important parts of story grammar as well as conjunctions and cohesive devices (id.).
The IESP stated that, socially, the student generally demonstrated age-appropriate relationships with peers and adults (Parent Ex. C at p. 2). However, he struggled with his feelings of frustration or anger, and tended to act impulsively, resulting in a tendency to get into fights with other students (id.). The IESP noted that, according to the parent, the student liked being in control and had a hard time managing situations when things did not go his way (id.). He had difficulty expressing his feelings during peer conflicts and had difficulty calming down (id.). The IESP stated the student needed to develop effective strategies to manage his negative emotions and problem solve (id.).
In OT, the student presented with attention, sensory processing, motor planning, visual perceptual/motor, and handwriting deficits, which impacted his ability to sustain focus in the classroom and make academic progress (Parent Ex. C at pp. 3, 4). The IESP indicated the student exhibited coordination deficits and "residual non-integrated reflexes such as tonic neck reflexes" (id.). In addition, he exhibited low muscle tone which interfered with his ability to sit appropriately during tabletop activities (id.). According to the IESP, the student presented with poor neuromuscular status, muscle strength, muscle tone, motor control, endurance and stamina, head control, proprioceptive abilities, core/postural control, coping skills, sensory modulation/processing, equilibrium, and protective reactions (id.).
In the area of handwriting, the student exhibited deficits related to letter formation, size, and spacing of letters and demonstrated poor functional grasp of pencil (Parent Ex. C at p. 3). The IESP noted the student was easily fatigued due to the use of excessive pencil pressure during handwriting activities (id.). In addition, it noted the student exhibited deficits in visual perceptual skills, processing auditory and visual input, and visual motor skills (id.).
The January 2018 IESP indicated the student was born with a rare pediatric birth defect and had undergone "multiple major reconstructive surgeries" (Parent Ex. C at p. 1). The management needs section of the student's January 2018 IESP indicated that the student benefitted from frequent movement breaks, breaks every two hours, redirection, refocusing, praise and positive reinforcement, scaffolding, graphic organizers, checklists, vocabulary, and sentence starters for written work (id, at p. 3).
- November 2020 IESP
At the beginning of the 2023-24 school year, the student's most recently developed IESP was from November 12, 2020 when the student was 12 years of age (Parent Ex. P). The November 2020 IESP indicated that, according to teacher reports, the student's decoding and math skills were judged to be on a third-grade level, and his writing skills were judged to be on a second-grade level (id. at p. 1).[15] More specifically, with regard to the student's reading skills, the IESP stated the student decoded reading materials slowly (id.). It further stated the student did not read smoothly and needed to pause in between every few words instead of based on punctuation (id.). The student was able to answer basic comprehension questions but struggled to comprehend specifically what was asked (id.). The IESP indicated the student was able to write letters of the alphabet and single words in both English and Hebrew, but his handwriting was "below grade level" (id.). The student did not always apply punctuation consistently, his writing was messy, and he struggled to adhere to the line and space letters appropriately (id.). The IESP noted the student had creative ideas but had a difficult time writing paragraphs as he often got stuck after the second or third sentence and then veered off topic (id.).
In math, the IESP stated the student was good at following simple step-by-step examples, such as in long multiplication or division, but could become overwhelmed with multiple steps and forget previously learned strategies (Parent Ex. P at p. 2). The student struggled with decimals and fractions (id.). The student did not do well with mental math and needed explicit instruction and concepts broken down into smaller steps (id.).
Turning to speech-language development, the November IESP referenced a report from when the student was nine years of age, which noted the student exhibited difficulty with auditory processing, word finding, and referencing skills, which interfered with his ability to communicate (Parent Ex. P at p. 2).
According to the IESP, the student was easily frustrated when work was difficult or if he was in a bad mood (Parent Ex. P at p. 3). The student was disorganized, which caused him frustration, he struggled to ask for help, and he was self-conscious about his medical issues (id.).
With respect to PT, the IESP referenced a progress report from when the student was 11 years of age, which noted that although the student had shown considerable gains, he demonstrated decreased fluidity with activities involving bilateral coordination (Parent Ex. P at p. 3). In addition, the student was described as being unable to gauge the velocity of his movement which was indicative of deficits in coordination and/or body awareness (id.). The student's PT treatment plan included pelvic floor, lower abdominal, hip adduction, and internal rotation exercises (id.).
Similar to the January 2018 IESP, with regard to OT the November 2020 IESP noted the student presented with deficits in attention, sensory processing, strength, motor control, endurance, stamina, and motor planning; deficits in visual perceptual/motor, coordination, neuromuscular, and handwriting skills; and low muscle tone, which interfered with his ability to sit appropriately during tabletop activities (Parent Ex. P at pp. 3-4). The IESP stated the student exhibited decreased proprioceptive abilities, poor coping skills, and became easily frustrated when challenged (id. at p. 4). In addition, it indicated the student exhibited poor sensory modulation/processing, equilibrium, and protective reactions, and was constantly fidgeting (id.). The student exhibited limitations in catching, throwing and dribbling balls; handwriting; and auditory and visual processing (id.).
The student's November 2020 IESP identified resources needed to address the student's classroom management needs such as complex tasks broken down into smaller steps; extra time to address his slow decoding skills; repetition and check-ins to ensure understanding; visuals, manipulatives, breaks, reminders, timers, and graphic organizers (Parent Ex. P at pp. 2, 5).
- February 2024 SETSS Progress Report
An A&R SETSS progress report, dated February 5, 2024, provided information regarding the student's needs at the mid-way point of the 2023-24 school year (Parent Ex. M). According to the report, the student presented with academic, language, and social issues (id. at p. 1). Based on classwork, the student was two grade levels behind in mathematics, below grade level in reading, and struggling with writing (id. at pp. 1-2). The progress report noted that in math the student made errors when doing classwork and had difficulty finding and correcting his mistakes (id. at p. 1). The report described the student as uninterested in learning new math skills and noted he required motivation and reinforcement to pique his interest enough to learn new skills (id.). According to the progress report, the student knew how to compute multiplication and division examples, but lost interest when doing so and therefore got the answers wrong (id.). The student was able to compute word problems involving addition and subtraction but not multiplication and division (id.). The student also became "stuck when adding double digits and regrouping (id.).
Turning to reading, the A&R progress report indicated that the student was reading at a Fountas and Pinnell level Z with 80 percent accuracy (Parent Ex. M at p. 1). The progress report noted the student's reading fluency and accuracy lagged behind that of his peers and that because he worked hard to read he lost comprehension (id.). According to the progress report, the student struggled to compare and contrast, had a difficult time answering higher-level questions and predicting endings (id.). The student could state the main idea of a short paragraph but struggled to describe characters and recall details in the proper sequence (id.).
In terms of writing, the February 2024 A&R progress report indicated the student could write neatly but, at times, it took him a "very long" time, and he required a lot of motivation (Parent Ex. M at p. 2). It further indicated the student possessed basic spelling skills but needed reassurance he could complete "the task" (id.). The report described the student as lacking self-motivation to complete his writing work and requiring adult assistance to stay focused (id.). According to the progress report, the student's handwriting was messy and illegible due to his lack of concentration (id.).
Next, the progress report stated that, according to informal classroom observations, the student displayed poor social and emotional skills (Parent Ex. M at p. 2). It was reported that the student had difficulty finding alternate solutions to a problem and had low self-esteem, which hindered his ability to confront peers when discussing something (id.). According to the progress report, the student's social skills had improved, and he was able to initiate and participate in group conversations (id.). However, the student required more social skills training and role playing to teach him more "social cues" (id.).
d. April 2024 IESP
A CSE convened on April 2, 2024 to develop an IESP for the student with a projected implementation date of April 16, 2024 (Parent Ex. Q). According to an April 9, 2024 prior written notice, there were no evaluation procedures, assessments, records, or reports available for review at the April 2024 CSE meeting because "no records exist" (Parent Ex. E at p. 1). However, the April 2024 IESP noted that the parent had "declined a formal psychoeducational evaluation," and that the student's present levels of performance were based on a 2023-24 "[t]eacher report" (Parent Ex. Q at p. 1).[16]At the time the April 2024 IEP was developed the student was in 10th grade (Parent Ex. Q at p. 1). As reflected in the April 2024 IESP, the student had academic difficulties in all subjects, but particularly in math and reading, necessitating interventions that aligned with his learning style (id.). The student's math skills were reportedly at a sixth-grade level, and while his computation skills were average, he struggled to grasp fundamental math concepts (id.). According to the IESP, the student had difficulty with basic math tasks that involved addition and subtraction, as well as higher-level math tasks that involved fractions and decimals (id.). The student also found word problems and multistep problems challenging and had difficulty executing necessary problem-solving steps and identifying required procedures independently (id.). The April 2024 IESP indicated the student was reading at a sixth-grade level, exhibited below-grade level decoding and fluency skills, along with weak comprehension skills (id. at p. 2). According to the IESP the student also struggled with interpreting vocabulary words, which made it difficult for him to grasp nuanced meanings within texts (id.).
In writing, the student functioned at a fifth-grade level and struggled to express his thoughts on paper Parent Ex. Q at p. 2). The IESP stated that the student's written work was "nearly illegible," and his spelling, grammar, and sentence structure were below grade level (id.). The IESP reported that the student found it difficult to retrieve the right words and formulate coherent sentences (id.). Turning to the student's language, the IESP noted his expressive and receptive language skills were better in his native language of Yiddish than they were in English and he struggled due to limited vocabulary and word retrieval difficulty (id.). In terms of his social/emotional functioning, the IESP indicated the student was easily frustrated and overwhelmed when facing challenging tasks and had "an impulsive nature" (id.). The student had difficulty forming and maintaining relationships with teachers and peers, developing effective communication skills, and building connections with others (id.). According to the IESP, the student benefitted from an incentive program to address behaviors, explicit instructions, and preferred seating near the teacher to help him focus (id. at pp. 2-3).
According to an "OT report" reproduced in the IESP, the student had difficulty with visual discrimination, visual memory, sequential memory, transitioning between activities, and handling changes (Parent Ex. Q at p. 4).[17] In addition, the student exhibited poor motor planning and organization skills (id.). The student struggled with sensory processing issues and staying focused on tasks (id.). The student's handwriting was "poor and sloppy," he was frustrated by challenging tasks, and he had difficulty understanding instructions (id.). The IESP noted the student could be rigid and wanted to do things his own way (id.).
The student's April 2024 IESP included resources and strategies to address the student's classroom management needs such as complex tasks broken down into smaller steps, extra time, repetition, check-ins, visuals and manipulatives, breaks, reminders, timers, and graphic organizers (Parent Ex. Q at p. 5). The IESP indicated the student had recently undergone surgery related to his medical condition (id. at p. 5).
Overall, as noted above, the April 2024 IESP recommended that the student receive seven periods per week of group SETSS in Yiddish delivered in the student's general education classroom, along with related services consisting of one 30-minute session per week of individual speech-language therapy in Yiddish; one 30-minute session per week of group speech-language therapy in Yiddish; two 30-minute sessions per week of individual OT; two 30-minute sessions per week of individual PT; one 30-minute session per week of individual counseling services in Yiddish, with all related services to be delivered in a separate location (Parent Ex. Q at pp. 12-13). The IESP further recommended that the student receive the support of full-time group paraprofessional services for assistance with medical needs (id. at p. 13).
2.Paraprofessional Services, SETSS, and Related Services
As set forth in further detail above, the parent alleges that the IHO erred by finding that the hearing record lacked sufficient evidence to prove that the unilateral services provided to the student during the 2023-24 school year were appropriate.
According to a March 2024 affidavit of the owner of Little Apple, the parent had procured 35 hours per week of paraprofessional services for the student from September 4, 2023 to June 28, 2024, for a total of approximately 38 weeks (Parent Ex. G; see Tr. pp. 109-110). The parent testified that the student required an individual paraprofessional due to his medical condition (Tr. p. 59). She further testified that the student had difficulty dealing with his condition physically and emotionally, that he needed help managing it throughout the day, and that, at times, the student's condition required him to leave the classroom (id.). The parent testified the student was on a strict diet as well, with which the paraprofessional assisted him (Parent Ex. C at p. 2; Tr. p. 59).
A June 23, 2024 provider report, bearing the name of the student's paraprofessional, asserted that Little Apple was "servicing [the student] for [medical] issues…" (Parent Ex. H; see Tr. p 111). The provider report further explained that the paraprofessional was "helping [the student]… by … reminding him to drink fluid," "to administer his vitamins and medication," and "prepare his food" (id.). The provider report explained that the student needed "someone on top of him to keep working on his [medical] issues and to support him," and it was "imperative… that he have a constant chaperone…" (id.). The owner of Little Apple echoed the provider report and testified that the paraprofessional assisted the student by reminding him to stay hydrated, administering vitamins and medications, monitoring the student's diet, and helping the student to manage his medical condition (Tr. pp. 134-137).
According to the April 2, 2023 affidavit by the chief executive officer of A&R (A&R CEO) and the A&R monthly invoices, A&R generally provided eight periods per week of SETSS to the student during the 2023-24 school year between the hours of 7:00 am to 9:00 am, or 9:00 am to 11:00 am in two hour blocks, at a rate of $205 per hour (Parent Ex. J ¶¶ 3, 4; L).[18] The A&R CEO confirmed that the agency provided the student with eight periods of SETSS per week rather than the seven periods mandated by the April 2024 IESP (Tr. at 92; see Parent Ex. Q at p. 12). He explained the agency provided the student with eight periods of SETSS per week because "[the student] needed it" and "his previous recommendation was eight" but "there was a cut on it" (Tr. pp. 92-93). In addition, the A&R CEO testified that the agency provided the student with SETSS during July and August 2024, as requested by the parent, to make up for services the student missed between November 8, 2023 to December 17, 2023 due to surgery (Tr. pp. 96-98).
The A&R CEO testified as to the individual who delivered SETSS to the student (Tr. pp. 68, 70, 72-73).[19] The A&R CEO testified that professional development for the SETSS provider was presented by "someone that explains the personality of the person… how [the student's] learning is involved with his personality and while learning how you could build up his personality..." (Tr. p. 73). According to the A&R CEO, the individual who provided the training, who notably possessed no known credentials in the area of education, researched an unidentified instructional method based on how the student's personality affected his learning (Tr. pp. 73-74). The A&R CEO stated that professional development was provided by the individual, who was not an employee of the agency, and whose own educational background consisted of "high school" (Tr. p. 74). The A&R CEO stated that the individual provided "guidance" to the SETSS provider on how to work with the student to "build up his personality" (Tr. p. 76).
The February 5, 2024 SETSS progress report described the student's present levels of performance, detailed above, and noted that the student had made "steady achievement," but his performance remained "substandard" (Parent Ex. M at p. 1). According to the report, the SETSS provider used numerous methods, described below, in order to help the student make progress (id.). The SETSS progress report noted that the SETSS provider used praise, prompts, cues, redirection, modeling, and reinforcements to enable the student to gain math skills (id.). In addition, the report indicated the SETSS provider used modeling and role-playing to help the student with his reading comprehension skills (id.). The SETSS provider was also reported as using "a lot of practice and redirection" in order to help the student "gain writing skills" (id. at p. 2). According to the report, the SETSS provider worked with the student to become more social through brainstorming social ideas, modeling, role-playing, and using various techniques to help him with his anxiety (id.).
The February 2024 SETSS progress report included what were described as "unmet and new annual IEP/IESP goals" that targeted the student's ability to read grade level text fluently and accurately; answer higher-level questions without cues; compute multiplication, division, and fractions without errors; compute word problems without assistance; complete a writing activity within the time frame allotted to him; follow teacher's orders within the time frame allotted; and increase his receptive and expressive language skills (Parent Ex. M at p. 4). In addition, the SETSS progress report included a goal directed at improving the student's attention span and focusing skills needed for academic and social functioning (id.). Specifically, the goal targeted the student's ability to complete tasks independently, formulate his own ideas on completing tasks and follow through with them and follow multistep related and unrelated verbal directions (id.). Further, the goals addressed skills related to choosing tasks, filtering out auditory and visual distractions, and concentrating during group lessons (id.). An additional goal was directed at improving the student's social interaction skills to participate appropriately in the community environment by increasing his expression of verbal and nonverbal feelings and thoughts, initiating conversation with peers and adults participating in group conversations, and maintaining eye contact during conversations (id.).
Turning back to the IHO's determinations, the IHO found that there was no evidence in the hearing record that the SETSS obtained by the parent was specially designed to address the student's identified needs (IHO Decision at pp. 8-13). More specifically, the IHO found that the A&R CEO's affidavit was devoid of any specific information regarding the SETSS the student received or his needs, goals, or progress (id. at pp. 9-10). The IHO noted that on cross-examination the CEO "testified repeatedly" that he was not involved in the student's instruction, had not met the student, nor observed any of his SETSS sessions (id.; see Tr. pp. 77-79). The IHO further noted that the CEO did not know what books or texts the SETSS provider used, what methodology was used to assess the student's reading competency or how many hours per week the SETSS provider worked on reading and mathematics with the student (IHO Decision at p. 10; see Tr. pp. 89-90) The IHO found the A&R CEO did not provide a credible explanation for the basis of the eight periods of SETSS being provided to the student during the 2023-24 school year (IHO Decision at p. 10).[20] In addition, the IHO noted a lack of evidence regarding the student's general education program such as the instruction and curriculum provided, specifically finding that services were supposed to assist the student in accessing his general education program but there was no evidence as to what class the student was in while SETSS was being provided in the mornings (IHO Decision at p. 11).
The parents allege that the IHO erred by finding there was insufficient evidence in the record to show the SETSS and paraprofessional services obtained by the parent were appropriate and by holding the lack of evidence of regarding the student's general education program against the parent.
Upon review, the hearing record supports the IHO's decision that the parent did not meet her burden to prove that, under the totality of the circumstances, the unilaterally obtained services were specially designed to meet the student's unique needs. Specifically, there was insufficient evidence in the SETSS progress report to show how the provider adapted the content, methodology, or delivery of the services in conjunction with the general education program to meet the student's unique needs that resulted from his disability. The IHO found that there was no evidence in the hearing record regarding the student's general education program in his nonpublic school, as neither the parent nor the CEO offered any information regarding the student's schedule, coursework, or curriculum on which the SETSS was based (IHO Decision at p. 12; Tr. pp. 53-54, 77).
Indeed, absent from the hearing record is evidence regarding the curriculum at the nonpublic school, the student's non-SETSS instruction, and how SETSS would have been connected to the instruction provided by the nonpublic school during the 2023-24 school year (see generally Parent Exs. F; G; I; J; M; R). Accordingly, although the hearing record identifies the times when SETSS were delivered to the student and there is general information as to strategies included in the progress report, the hearing record does not provide any information as to whether SETSS were an individual or group service, what classes the student was in at the time the SETSS were being delivered, whether services were actually delivered in the student's classroom, or how SETSS assisted the student in accessing his school program.
Moreover, it is not clear from the hearing record if or how the student's needs related to speech-language therapy, OT, PT, and counseling were being addressed. With regard to the student's speech-language skills, the student's November 2020 IESP indicated the student had a moderate receptive-expressive language disorder and auditory processing difficulties and the April 2024 IESP indicated the student grappled with a restricted vocabulary and word retrieval challenges (Parent Exs. P at p. 2, Q at p. 2). The April 2024 IESP noted the parent's concern that the student's language skills "were not up to par" (Parent Ex. Q at p. 3). In terms of social development, both the November 2020 IESP and February 2024 A&R SETSS report noted the student's low self-esteem (Parent Ex. M at p. 2; P at p. 3). The IESP indicated the student was easily frustrated and the SETSS report indicated the student had difficulty finding alternate solutions to a problem (Parent Exs. M at p. 3; P at p. 2). The April 2024 IESP stated that the student had difficulty forming and maintaining interpersonal relationships (Parent Ex. Q at p. 2). Turning to the student's motor development, the November 2020 IESP noted the student's difficulties with bilateral coordination, velocity of movement, and body awareness as well as his difficulties with attending, sensory processing, motor planning, visual perceptual motor skills, and handwriting deficits (Parent Ex. P at p. 3). Similarly, the April 2024 IESP indicated the student struggled with visual discrimination and memory, motor planning and organization skills, muscle strength and body awareness, and sensory processing (Parent Ex. Q at p. 4). Consequently, review of the evidence in the hearing record does not show that the student's speech-language, motor or counseling needs were addressed during the 2023-24 school year (see Parent Exs. F; G; I; J; M; R). Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quotingRowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.
Overall, the evidence in the hearing record does not support a finding that the parent met her burden to prove that the services she unilaterally obtained for the student constituted appropriate instruction specially designed to address the student's unique educational needs, particularly in light of the lack of evidence as to how the student's needs in the areas of speech-language, OT, PT, and counseling were met or how the services that were provided supported the student in the general education curriculum. As noted above, by definition, specially designed instruction is the adaptation of instruction to allow a student to access the student's general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1 [vv]; see 34 CFR 300.39 [b][3]). However, the hearing record does not include any evidence of the instruction that the student received while attending the general education classroom during the 2023-24 school year in terms of the structure, instruction, and curriculum provided, methodologies, or modifications within the core educational program. As a result, it is not clear from the hearing record how the student fared in the general classroom. For example, it is not possible to ascertain from the evidence presented whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the services from A&R supported his functioning in the classroom. The lack of evidence about what the general curriculum entailed or how the SETSS supported the student's access to that curriculum makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). The absence of such information means that the services could not be evaluated in the context of the setting in which the student was purportedly being educated.
Under the totality of the circumstances, the parent failed to prove that the unilaterally obtained SETSS and paraprofessional services were appropriate to meet the student's special education needs (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]).
Accordingly, there is insufficient reason to disturb the IHO’s finding that the parent failed to sustain her burden to show that A&R and Little Apple provided services which constituted specially-designed instruction to meet the student's identified needs.
VII. Conclusion
Having found that the evidence in the hearing record supports the IHO’s determination that the parent failed to sustain her burden to establish the appropriateness of the unilaterally-obtained services delivered to the student during the 2023-24 school year, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The February 2018 prior written notice directed the parent to download a copy of the procedural safeguards notice from the district website and gave a phone number to call to request a copy (Parent Ex. C at p. 12).
[2] The April 2024 prior written notice directed the parent to download a copy of the procedural safeguards notice from the district website and included contact information for assistance in understanding the special education process, requesting a meeting or further information, or to request a copy of the procedural safeguards notice (Parent Ex. E at p. 2).
[3] A prehearing conference was held on December 3, 2024 (Tr. pp. 1-12).
[4] The district did not enter any exhibits into the hearing record (see IHO Decision at p. 20).
[5] The parent’s attorney presented the September 29, 2020 IHO decision as proposed Parent Exhibit B, but the district objected to its admittance arguing that it related to a prior school year (Tr. pp. 21-22). The IHO gave the parent's attorney the opportunity to respond to the district's objection and, having heard the parties' arguments, sustained the district's objection and did not admit the proposed exhibit into the hearing record (Tr. pp. 22-23).
[6] Having considered the arguments presented by the district as to the parent's pleadings, and the circumstances presented, dismissal of the parent's request for review is not warranted.
[7] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[8] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[9] Additionally, recent decisions from federal district courts, addressing whether parents who parentally place their children in nonpublic schools may bring actions in federal court, have noted that "'Plaintiffs were able to file a complaint through the two-tier administrative review process because New York law has gone above the floor set by the IDEA and extended that specific mechanism to private school students with IESPs'" (S.C., v. New York City Dep't of Educ., 2026 WL 947995, at *4 [S.D.N.Y. Apr. 8, 2026], citing Manos v. New York City Dep't of Educ., 2026 WL 587792, at *6 [S.D.N.Y. Mar. 3, 2026]).
[10] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[11] The district did not seek judicial review of these decisions.
[12] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[13] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SROs in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068; Application of a Student with a Disability, Appeal No. 23-121). The guidance document is no longer available on the State's website; however, it has been added to the administrative hearing record.
[14] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review, that one or both of the parties and/or the IHO characterize as an enhanced rate dispute, involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student. Pertinently, in this matter although the IHO only made findings as to implementation, the parent asserted that the recommendations made by the district for the 2023-24 school year were insufficient because they only included seven sessions per week of SETSS (IHO Decision at pp. 7-8; Parent Ex. A at p. 1).
[15] The teacher reports referenced in the November 2020 IESP were not included in the hearing record and the IESP did not identify when the teacher reports were completed (see Parent Ex. P. at pp. 1-2).
[16] The teacher report referenced in the April 2024 IEP was not included in the hearing record.
[17] There is no information in the hearing record regarding who was providing the student with OT services or who produced the report, although the report seemed to have been completed shortly before the CSE meeting based on the student's reported age at the time of the report (see Parent Ex. Q at p. 4)..
[18] The invoices and testimony do not appear to differentiate between sessions, periods, and hours for SETSS.
[19] Review of the hearing record shows that the provider had a credential labeled "Students With Disabilities (Grades 1-6), Emergency COVID-19" that expired on January 31, 2024 and another credential labeled "Students With Disabilities (Grades 1-6), Transitional B Certificate" issued on August 1, 2024 (Parent Ex. K).
[20] The parent testified that a 2021 IESP was developed which included seven hours per week of SETSS, however, the 2021 IESP was not included in the hearing record (Tr. pp. 37).