STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-284
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:
Liz Vladeck, General Counsel, attorneys for respondent, by Toni L. Mincieli, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by EdZone, LLC (EdZone) for the 2023-24 school year. The district cross-appeals from the IHO's alternative finding that equitable considerations would not have warranted a reduction in the requested relief. 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
The parties' familiarity with the facts and procedural history of the case and the IHO's decision is presumed and will not be recited in detail.
Briefly, the student has received a diagnosis of an attention deficit hyperactivity disorder (ADHD) and exhibited difficulty with executive functioning related to attention, time management, organization, and self-monitoring skills; speech-language abilities including articulation, word retrieval, and metalinguistic skills; and reading comprehension and fluency, math problem solving, and written expression skills (Parent Ex. B at pp. 2-3). During the 2022-23 school year the student attended fourth grade at a nonpublic school and received four sessions per week of special education teacher support services (SETSS), and two sessions per week of speech-language therapy (id.).
A CSE convened on December 6, 2022 for the student's annual review, determined the student continued to be eligible for special education as a student with an other health impairment, and developed an IESP with an implementation date of December 6, 2022 (Parent Ex. B).[1] The CSE recommended that the student receive five periods per week of direct, group SETSS, one 30-minute session per week each of both individual and group speech-language therapy, two 30-minute sessions per week of group occupational therapy (OT), and one 30-minute session per week of individual counseling (id. at p. 10).[2]
In a letter dated May 15, 2023, the parent notified the district that she intended to enroll the student at a nonpublic school, Yeshiva Darchei Torah, and requested that the district provide the educational services her son was entitled to pursuant to his IESP (Parent Ex. E). On August 16, 2023, the parent executed an agreement with EdZone for the provision of special education services to the student for the 2023-24 school year (see Parent Ex. C).[3] In a "10-day notice," dated August 23, 2023, the parent notified the district that it had failed to assign a provider to deliver the student's services for the 2023-24 school year and that, if the district did not do so, the parent would seek the mandated services from a private provider at an enhanced rate (Parent Ex. D).
The student attended the nonpublic school for fifth grade during the 2023-24 school year and reportedly began receiving SETSS from EdZone on September 11, 2023, and speech-language therapy beginning February 6, 2024 (Parent Ex. F ¶ 2; Dist. Ex. 9 at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated July 16, 2024, the parent, through her advocate, alleged that the district denied the student a FAPE for the 2023-24 school year by failing to "supply" the special education services recommended in the student's December 2022 IESP (Parent Ex. A at p. 2). The parent alleged further that the district failed to notify her as to "how the services would be implemented" and asserted the district was shifting its responsibility for providing services (id.). The parent then asserted that she was unable to "procure a provider for the school year at the [district] rates" (id.). Therefore, she had "no choice but to retain the services of an agency to provide the mandated services at an enhanced rate"(id.). Likewise, the parent alleged that the district did not develop an updated program of services for the student for the 2024-25 school year, and that the annual review date for that school year had passed (id.). As such, the parent alleged that the district's failure to develop a program for the student was a denial of FAPE for the 2024-25 school year (id.).
For relief, the parent requested a pendency hearing and order, and a "declaratory judgment" that the district failed to offer the student a FAPE for the 2023-24 school year (Parent Ex. A at p. 3). Additionally, the parent requested that the IHO issue an order awarding the parent funding for the unilaterally obtained services provided to the student during the 2023-24 school year, and a bank of compensatory education to "make-up" any mandated services not provided by the district during the 2023-24 school year (id.). The parent included a request for the district to reconvene a CSE to develop a program for the student for the 2024-25 school year, with the directive that the district provide the same program of services included in the student's December 2022 IESP at the "enhanced" provider rate (see id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 12, 2025 and concluded the same day (Tr. pp. 1-33).[4] In a decision dated April 9, 2025, the IHO summarized the background and procedural history of the matter, noting in pertinent part, that the district's motion to dismiss for lack of subject matter jurisdiction was denied at the hearing and that the parent had withdrawn all claims with regard to the 2024-25 school year (IHO Decision p. 3). At the outset, the IHO determined that the district failed to implement the student's 2022 IESP and thus denied the student equitable services for the 2023-24 school year (id. at pp. 3-4, 5).
Next, the IHO noted that in reviewing the hearing record before her, she did not find that the parent met her burden of showing that the unilaterally obtained services were appropriate, due to the lack of evidence in the hearing record (IHO Decision p. 6). With respect to speech-language therapy services, the IHO found that the hearing record "was devoid of any information" except for a February 2024 timesheet (id.). The IHO identified deficiencies with the evidence, namely, the lack of session notes, progress reports, or any information as to what the speech-language therapist was working on with the student (id.). Moreover, the IHO identified similar deficiencies with the evidence in regard to the SETSS provided to the student, noting that the hearing record only contained a single progress report that was undated, unsigned, and contained language that was "vague, overbroad and [could] apply to any [s]tudent" (id.). The IHO also determined that the only testimony was by an employee of EdZone in the financial services department and the IHO did not find her testimony credible (id.). The IHO noted generally, that the record was devoid of any baseline data or goals for either service, and held that the hearing record failed to demonstrate how the student had progressed or how the services were addressing the student needs (id.). The IHO concluded that both the speech-language therapy and SETSS, unilaterally obtained by the parent, were inappropriate and denied the parent's request for funding (id. at p. 7).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in holding that the parent failed to meet her burden of proving the appropriateness of the unilaterally obtained services. The parent argues that the IHO's holding that the hearing record lacked baseline information and goals incorrectly placed the burden of assessment and evaluation on the parent. The parent also asserts that the IHO erred in discounting the witness' testimony and the SETSS progress report, which the parent alleges establish the appropriateness of the services.
In an answer, the district argues that the IHO's decision regarding the appropriateness of the unilaterally obtained services should be affirmed and that the IHO erred in finding, in the alternative, that equitable considerations weighed in favor of awarding the contracted rate for the unilaterally obtained services. The district asserts that the rates charged by EdZone were excessive and that the evidence supports a reduction in the rates if any services are awarded.
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]).[5] "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.).[6] 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. Unilateral Placement
The crux of the dispute between the parties relates to the appropriateness of the parent's unilaterally obtained SETSS and speech-language therapy services delivered to the student during the 2023-24 school year and whether equitable considerations favor an award of direct funding of the unilaterally obtained services. Prior to reaching the substance of the parties' arguments, some considerations must be given to the appropriate legal standard to be applied.
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from EdZone for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[7] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student Needs
Although not in dispute on appeal, a brief discussion of the student's needs provides context to resolve the issue of whether the private SETSS and speech-language therapy unilaterally obtained by the parent were appropriate for the student for the 2023-24 school year.
The only evidence within the hearing record that was available at the time the parent contracted with EdZone to deliver services to the student was the evaluative information describing the student's needs contained in the December 2022 IESP, which reported the results and information from a November 2021 neuropsychological evaluation as well as reports from the student's teachers and speech-language provider and a December 2022 speech-language progress report (Parent Ex. B at pp. 1-4; Dist. Ex. 9 at pp. 3-4). According to the reported results from the November 2021 neuropsychological evaluation, the student obtained a full scale IQ of 96, in the 39th percentile, on the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V) and achievement scores of 88 (21st percentile) on the reading composite and 86 (18th percentile) on the math composite for the Wechsler Individual Achievement Test, Fourth Edition (WIAT-IV) (id. at pp. 1-2).
The December 2022 IESP also included information from the November 2021 neuropsychological evaluation that indicated the student had "normal intelligence," but areas of need related to speech and language, executive functioning, and word retrieval skills, and "long term retention of information" (Parent Ex. B at pp. 1-3).[8] According to the December 2022 IESP, the student was in fourth grade and the SETSS provider indicated that the student's reading and math skills were at a third grade level (id. at p. 2). The IESP also reflected SETSS provider reports that the student had difficulty with reading fluency and comprehension, made "careless mistakes" in math and had difficulty with math word problems, and had weak written expression skills characterized by difficulty putting ideas together, formulating cohesive paragraphs, and using correct spelling (id.). Additionally, the IESP indicated that the student "ha[d] difficulty processing new information," and had a "weak" attention span that "require[d] constant refocus and redirection" (id.).
The December 2022 IESP included information from the December 2022 speech-language therapy progress report (compare Parent Ex. B at p. 3, with Dist. Ex. 9 at p. 3). As reported in the IESP, the student's intelligibility was impacted by his "hoarse vocal quality" and distortion of "l" and "r" sounds, and that he demonstrated "belabored handwriting[,] . . . poor spelling," and "below grade level" decoding skills (Parent Ex. B at p. 3). The December 2022 IESP also indicated that the student had difficulty with "[i]ndependent work" that "impact[ed]" him "negatively in the classroom setting" (id.). According to the December 2022 speech-language therapy progress report the student was below grade level in decoding and written and verbal expression and "the gap between his performance and grade level [wa]s widening" (Dist. Ex. 9 at p. 4).
Socially, the December 2022 IESP indicated that the student "want[ed] to please and do his work" but demonstrated "signs of anxiety with assignments" (Parent Ex. B at p. 3). The December 2022 IESP included a statement that the student "benefit[ted] from constant redirection and focusing," although the IESP also noted that he "respond[ed] well to redirection" (id.). According to the December 2022 IESP's reporting of the 2021 neuropsychological evaluation, in addition to the diagnosis of ADHD, the student demonstrated "an element of anxiety and rigidity that c[ould] interfere with transitions and . . . avoidance of tasks of perceived [] or actual difficulty" (id.).
In the area of OT, the December 2022 IESP indicated that therapy addressed "decreased graphomotor skills, as well as motor planning[,] and executive functioning" (Parent Ex. B at p. 4). The December 2022 IESP noted that the student exhibited a "generally slow" pace of work, and that "he benefit[ted] from exercises that work[ed] on overall endurance" (id.). The December 2022 IESP further indicated that, in the classroom, the student had difficulty following a multistep activity and with "focus[] and following directions" (id.).
The December 2022 IESP included a variety of supports to address the student's management needs, such as consistency in routines, clear expectations, simplified instructions, checks for understanding, encouragement of requests for clarification, preferential seating, positive reinforcement, cues and prompts, small group instruction for reading, a multi-modal approach, high-interest materials, and short and varied tasks (Parent Ex. B at pp. 4-5).
2. Unilaterally Obtained Services from EdZone
The hearing record indicates that the parent signed a contract with EdZone, dated August 16, 2023, for the provision of services to the student (Parent Ex. C). According to an affidavit provided by EdZone's financial department employee, EdZone provided "services to [the student]" beginning "[September 11, 2023], and these services continued throughout the entire school year" (Parent Ex. F ¶ 2). The employee testified that EdZone offered a range of special education services, including SETSS, speech, OT, physical therapy (PT), and para-educator services (id. ¶1). The employee further testified that "[t]he [s]tudent [was] entitled to [five] hours per week of SETSS, [and] [one] hour of [s]peech" (id.). The employee included in her affidavit the names of the student's SETSS and speech-language therapy providers, along with their credentials (id. ¶¶ 3-5).
Upon review, the hearing record included a time sheet and a progress report for speech-language therapy (Parent Ex. H; Dist. Ex. 9). The time sheet for speech-language therapy indicated services were delivered from February 2024 through June 2024 (Parent Ex. H). Based on the hours referenced in the time sheet, speech-language therapy was provided to the student in the evening hours, with the exception of three dates in May and one date in June when the service was provided before 8:00 a.m. (id.).
The speech-language therapy progress report, dated September 24, 2024, indicates that the student's services began February 6, 2024, and according to the therapist, the student received two 30-minute sessions of individual speech-language therapy per week (Dist. Ex. 9 at p. 1).[9] Further, the therapist clarified that the student was provided services "for [the] last [five] months [of] the school year, from February-June at [the] clinician's home office after school" (id.). The September 2024 progress report did not include an explanation as to why services did not begin until February 2024 (see id. at pp. 1-2).
The September 2024 speech-language therapy progress report indicated that the materials used to improve the student's "independent work," and ability to predict, make inferences, "stat[e] the main idea[,] and retell[] stories [were] all at the [third] [grade] level"; noting that with fourth grade level materials, the student "had great difficulty answering the questions correctly" (Dist. Ex. 9 at p. 1). The therapist included that the student "dictate[d]" sentences of summarized stories to the clinician because of his "writing issues" (id.). According to the September 2024 progress report, the student's progress toward meeting his goals was "slow as he only received services in February," and the therapist recommended an increase of speech-language therapy to three sessions per week (id. at p. 2).
Comparing the September 2024 speech-language therapy progress report with the December 2022 speech-language therapy progress report shows that three out of the four goals the provider was working with the student on during the 2022-23 school year were still being worked on as of the September 2024 report (compare Dist. Ex. 9 at pp. 1-2, with Dist. Ex. 9 at pp. 3-4). Accordingly, with the speech-language provider identifying the student's slow progress in December 2022, noting the student's gap between his performance and grade level as widening, and recommending additional support in and out of the classroom for the student (Dist. Ex. 9 at p. 3), without an explanation as to why speech-language services were not provided to the student during the 2023-24 school year until February 2024, the services do not appear to have been sufficient.
Additionally, while the September 2024 speech-language therapy progress report included goals addressed in therapy, as well as newly recommended goals, there was little information about specially designed instruction the therapist used to facilitate the student's progress (see Dist. Ex. 9 at pp. 1-2). Accordingly, there is not sufficient evidence in the hearing record to find the limited speech-language therapy provided to the student during the 2023-24 school year appropriate or specially designed to meet his needs.
In addition to the information about speech-language therapy, the hearing record included a progress report dated "[s]chool [s]emester 2023-2024" completed by the student's SETSS provider (Parent Ex. G). The SETSS progress report indicated that the student "receive[d] four hours of SETSS" and "one-on-one speech therapy sessions" (Parent Ex. G at p. 1).[10] The SETSS progress report included a statement that the student "benefit[ted] from structured intervention in a combination of group and one-on-one settings" to address "peer interaction and collaboration" as well as "his specific needs" identified as delays in reading, writing, and math (id.). The SETSS progress report also indicated that the student's speech therapy addressed his "articulation and language development issues" (id.).
To address the student's reading needs, the SETSS progress report indicated that the provider used "strategies such as using context clues to decode unfamiliar words and summarizing key details from texts," "repeated readings, reading aloud," and "vocabulary building" (Parent Ex. G at p. 1). For writing, the SETSS provider reported focusing on building writing stamina and generating ideas using "graphic organizers," prompts, and "brainstorming" (id. at p. 2). Regarding math, the SETSS progress report indicated that "hands-on tools and step-by-step strategies," as well as frequent redirection, were used to address the student's attention and difficulty processing multi-step word problems (id.). Additionally, the SETSS progress report included information that the student thrived in structured environments where he could engage in visual learning activities, use manipulatives and repetitive drills, and receive redirection to stay on task (id.). Further, the SETSS provider reported that "[t]he following strategies ha[d] been particularly effective: [s]tructured learning environments with clear expectations," "[f]requent use of graphic organizers and visual aids," "[r]epeated practice and hands-on learning tools," and "[c]onsistent redirection and positive reinforcement" (id. at p. 3).
In terms of progress, the SETSS progress report indicated that the student demonstrated "steady improvement throughout the year" (Parent Ex. G at p. 1). Areas of improvement noted within the SETSS progress report included the student's ability to "self-correct[] during reading tasks," "form[] basic sentences with appropriate punctuation and spacing" and "respond[] to prompts or organizing thoughts using graphic organizers" in writing, and to use "computation skills" in math (id. at pp. 1-2). The SETSS progress report also noted that the student's "[s]peech therapy ha[d] helped him improve his articulation and confidence in expressing himself" (id. at p. 3).
Finally, while the December 2022 IESP described significant needs related to the student's fine motor, executive functioning, and social/emotional skills and recommended the student receive two 30-minute sessions per week of group OT and one 30-minute session per week of individual counseling, the record did not include information about how such needs were addressed. In fact, review of the parent's contract with EdZone indicates that EdZone agreed to deliver services to the student "in accordance with the last agreed upon . . . IESP" (Parent Ex. C at pp. 2, 3). In turn, the December 2022 IESP, the only educational planning document included in the hearing record, recommended that the student receive five hours per week of SETSS, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of OT, and one 30-minute session per week of counseling (Parent Ex. B at p. 10). However, while the EdZone employee testified that the agency offered SETSS, speech, and OT services, and that the agency had the capacity to deliver five hours per week of SETSS and one hour per week of speech-language therapy services, the hearing record shows that the student only received speech-language therapy from February 6, 2024 through the end of the 2023-24 school year, only received four hours per week of SETSS, and received no OT or counseling services (Parent Exs. F ¶¶ 1, 2; G; H).
Given the totality of the circumstances in this case, including the limited information about the services the student did receive, there is insufficient basis presented on appeal to overturn the findings of the IHO.
VII. Conclusion
In light of the above, the hearing record supports the IHO's determination that the parent did not meet her burden of proving that the services provided to the student by EdZone during the 2023-24 school year were appropriate to meet his needs and the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).
[2] 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 and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer 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 (Application of a Student with a Disability, Appeal No. 19-047).
[3] According to the agreement, services would be provided "in frequency and duration agreed to by the parents and EdZone and at rates detailed" in an addendum attached to the agreement, which further indicated services would be provided "in accordance with the last agreed upon . . . IESP" and identified hourly rates for a number of services (Parent Ex. C at pp. 2, 3). An EdZone employee testified that EdZone was providing the student with five hours per week of SETSS and one hour per week of speech-language therapy services during the 2023-24 school year (see Parent Ex. F ¶ 2).
[4] The hearing record includes an undated omnibus standing order that was issued by a different IHO (IHO Omnibus Standing Order).
[5] 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]).
[6] 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.
[7] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Always A Step Ahead Inc. (Educ. Law § 4404[1][c]).
[8] The hearing record included duplicate exhibits of the student's December 2022 IESP (see Parent Ex. B; Dist. Ex. 8). For purposes of this decision, the parent exhibit will be cited.
[9] The provider who delivered the student's speech-language therapy services during the 2023-24 school year is the same provider who delivered the student's speech-language therapy services during the 2022-23 school year (compare Dist. Ex. 9 at p. 1, with Dist. Ex. 9 at p. 3). The hearing record does not explain why the student's speech-language therapy services were discontinued at some point and then reinitiated in February 2024.
[10] In comparison, the EdZone financial department employee's affidavit indicated that the student was "entitled" to five hours of SETSS (Parent Ex. F ¶ 2).