STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-289
Application of a STUDENT WITH A DISABILITY, by his parents, 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:
Shehebar Law PC, attorneys for petitioners, by Ariel A. Bivas, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, 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. Petitioners (the parents) appeal from the decision of an impartial hearing officer (IHO) which denied their request to be reimbursed for the costs of their son's unilaterally-obtained special education teacher support services (SETSS) delivered by Future Plus Services, LLC (Future Plus) for the 2023-24 school year. The 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[a]). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The evidence in the hearing record reflects that on December 9, 2020, a CSE convened and, having found that the student was eligible for special education as a student with a speech or language impairment, developed an IESP (December 2020 IESP) that included recommendations for the student to receive five periods per week of SETSS in a group (separate location, Yiddish), two 30-minute sessions per week of speech-language therapy services in a group (separate location at provider's discretion, Yiddish), and two 30-minute sessions per week of counseling services in a group (separate location at provider's discretion, Yiddish) to address his identified needs (see Dist. Ex. 3 at pp. 1, 6-7).[1], [2] In addition, the December 2020 IESP included approximately seven annual goals targeting the student's needs in the areas of mathematics, writing, reading comprehension, receptive language, attention and focusing, and social skills (peer interactions) (id. at pp. 3-6).[3]
With respect to the 2023-24 school year at issue, the evidence in the hearing record indicates that an email was sent on May 22, 2023, which attached and forwarded a completed, district form to three different CSEs within the district (see Parent Ex. H at pp. 1-2).[4],[5] According to the district form, which was dated May 20, 2023, the student was being placed in a nonpublic school for the 2023-24 school year at parent expense and it was requested that the district provide educational services to the student during the 2023-24 school year (id. at p. 2).
Evidence in the hearing record indicates that the student began receiving "services" from Future Plus on September 4, 2023 (Tr. p. 11). In addition, the evidence reflects that the student received "his services in a mainstream [religious, nonpublic school]" and that "[s]ervices [we]re typically provided outside of the classroom" (Parent Ex. D ¶¶ 15, 17).
On October 3, 2023, a special education teacher (evaluator) assessed the student's "academic, cognitive, and socio-emotional deficits to determine his ongoing eligibility" for SETSS and to "define the critical support necessary to address his substantial learning challenges" (Parent Ex. I at p. 1).[6]
On October 16, 2023, the parent signed a "Parent Service Contract" with Future Plus to deliver five hours per week of SETSS (Yiddish) and two 30-minute sessions per week of individual speech-language therapy (Yiddish) to the student during the 2023-24 school year (Parent Ex. C at pp. 1, 3).[7] According to the terms of the contract, the agency indicated that it would "make every effort to implement the recommended services mentioned-above with suitable qualified providers" for the 10-month, 2023-24 school year, and charged $195.00 per hour for SETSS and $225.00 per hour for speech-language therapy (id. at p. 2).
A. Due Process Complaint Notice
By due process complaint notice dated July 15, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at p. 1). According to the parents, the "CSE ha[d] set up a special education program for [the student] and strongly recommend[ed] that he continue in his current placement and program set forth on the IESP dated August 4, 2015," which included the following recommendations: five periods per week of SETSS, two 30-minute sessions per week of speech-language therapy, and two 30-minute sessions per week of counseling services (id. at pp. 1-2).[8] Next, the parents indicated that the district failed to implement the student's special education program set forth in the August 2015 IESP, and "[h]aving [had] no success securing a SETSS and related services provider at the [district] rate, the [p]arent unilaterally secured their own providers to work with the [s]tudent for an enhanced rate" (id. at p. 2). In addition, the parents requested pendency services based on the special education program set forth in the August 2015 IESP, and as relief for the alleged violations, the parents requested an order directing the district to directly fund or reimburse the parents for the SETSS and related services set forth in the August 2015 IESP at an enhanced rate (id.). The parents also reserved their right to seek compensatory educational services for any services not provided to the student by the district (id. at p. 3).
In a response to the parent's due process complaint notice, dated September 9, 2024, the district generally denied the parents' allegations, asserted the affirmative defense that the parents failed to comply with the requirement to request equitable services on or before June 1, and attached a "Supplemental Notice" of special education program recommendations related to the CSE meeting held on December 9, 2020 (Dist. Response to Due Process Compl. Notice at pp. 1, 3).[9]
B. Impartial Hearing Officer Decision
On February 10, 2025, the parties proceeded to, and completed, the impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-40).[10] At the impartial hearing, the district representative asserted in her closing statement that the "June 1st letter submitted in evidence [wa]s not actually signed by the parent" and was sent by the agency, rather than an attorney or the parent (Tr. pp. 26-27). For these reasons, the district representative argued that the parent had not complied with the statutory requirements of Education Law § 3602-c, and the parent should therefore be precluded from relief (Tr. p. 27).
As part of his closing statement, the parents' attorney stated that, in addition to seeking funding for the costs of the student's SETSS, the parents also requested a bank of compensatory educational services for the related services the student did not receive during the 2023-24 school year at a rate to be determined by the district's implementation unit (see Tr. pp. 30-31).
In a decision dated March 24, 2025, the IHO found the district's June 1 defense dispositive because the IHO did not "find credible that the [p]arent, or someone in a parental relationship to the student, submitted a timely written request for equitable services by June 1, 2023" (IHO Decision at p. 15). The IHO found that the district timely raised the June 1 defense, and the evidence demonstrated that the agency sent the June 1 letter to the district, which the parent confirmed at the impartial hearing (id.). The IHO concluded however that, even if the agency sent the June 1 letter at the parent's request, "it did not come directly from the parent or a person in a parental relationship to the student, as required by the statute" (id.). In support of this conclusion, the IHO indicated that there was no legal authority for the proposition that an agency could communicate on the parent's behalf, in contrast to attorneys who had a different relationship with clients and who were often authorized to communicate on their clients' behalf (id. at pp. 15-16). Additionally, the IHO noted that the hearing record lacked evidence that the parent authorized the agency to act on her behalf at the time the June 1 letter was sent to the district because the parent had not entered into a contractual relationship with the agency until signing the contract for services in October 2023 (id. at p. 16). Moreover, the IHO opined that it would "not be appropriate to allow an agency to act on the parent's behalf in this manner" because the agency had a "personal interest in the private provision of equitable services," creating a conflict of interest when it came to the "[district] fulfilling its obligations" (id.). According to the IHO, the agency ultimately stood to gain if the district did not "see the request letter or provide the necessary equitable services" (id.). For these reasons, the IHO did not find that the "request for equitable services sent by a private service agency and not directly from the parent (or their attorney) complie[d] with the statutory June 1st requirements" (id.).
Next, the IHO found that, even if the June 1 notice was sufficient, the parents failed to sustain their burden to establish the appropriateness of the SETSS delivered by Future Plus during the 2023-24 school year (see IHO Decision at p. 16). The IHO found that, although the hearing record included "limited" evidence regarding the "services and general skills the SETSS worked on, there [wa]s insufficient information about how the sessions were individualized to meet the student's needs" (id.). For example, the IHO noted that the hearing record did not include any evidence about the "goals" the SETSS provider worked on with the student, the SETSS provider was "not appropriately qualified to teach this student's grade," and the student's "language needs" were "not met by the private services" (id.). The IHO indicated that, while Future Plus was "contractually obligated" to provide speech-language therapy services to the student, the agency failed to deliver such services and the hearing record lacked any explanation for that failure (id.). As a result, the IHO opined that she could not "say they were meeting all areas of the student's needs" (id.). In addition, the IHO noted that the hearing record lacked evidence concerning the "student's general education curriculum or how the SETSS sessions were designed to allow the student to access the curriculum" (id.). As a final point, the IHO noted that the hearing record contained "wildly conflicting evidence" about the student's progress, and it appeared that, although the student received SETSS the "entire year," he continued to function "at or below the levels he was at more than three years prior" (id.). Thus, the IHO concluded that the parents failed to sustain their burden of proof (id.).
Next, the IHO found that the agency owner (owner) was not a credible witness because his testimony "added nothing substantive about the [SETSS] sessions" (see IHO Decision at p. 16).[11] Additionally, the IHO noted that his direct testimony, which was submitted via affidavit, was a "template contain[ing] boilerplate information that made no sense in the context of this case, such as the continued need for services for a student who ha[d] graduated" (id.). The IHO further noted that the owner's direct testimony was "at times misleading by omission, such as omitting information about the qualifications of the SETSS [p]rovider and the expenses included in the [a]gency's rate" (id.). The IHO found that, although the owner "knew they paid the attorney fees as part of their business expenses," the owner "failed to include that" in his direct testimony, and the IHO found it "incredible to believe that the [a]gency's owner and executive director would not know if they were paying the attorney fees in this case" (id.). Moreover, the IHO did not "credit the claim that attorney fees [we]re not calculated into the hourly rate" charged by the agency, and opined that "if it is a business expense and the expenses [we]re paid from the income generated from services, then it [wa]s factored into the rate" (id.). The IHO then indicated that "other inconsistencies" existed in the owner's testimony and reiterated that she did not find the owner was a credible witness (id).
Finally, the IHO examined equitable considerations, noting that if "relief were otherwise warranted [she] would have reduced any funding" based on the "lack of candor" by the owner (IHO Decision at p. 16). The IHO explained that, because attorney fees could not be awarded within the instant forum, it was not "appropriate to order funding for services which incorporate[d] those costs" (id. at pp. 16-17). Additionally, the IHO found that the agency's hourly rate for SETSS was excessive because it included "indirect costs well above what was reasonable, but it also included 1:1 services which were not recommended, and which went beyond what was necessary for a FAPE" (id. at p. 17). The IHO found that the "only reason" SETSS was not delivered to the student in a group was because the parents "requested services in the evening when there could be no group formed" (id.). The IHO also found that the parents failed to provide a 10-day notice of unilateral placement, "even after signing a contract for private services" (id.). For these reasons, the IHO indicated that she would have reduced the contracted rate to "$171.96 per hour," and would have denied compensatory educational services (id.). On this point, the IHO noted that no relief should be awarded for the agency's failure to deliver speech-language therapy services; the student had graduated and there was "no need for compensatory education"; and, with respect to extended eligibility, there was no gross violation of a FAPE in this matter to justify relief (id.). In light of the foregoing, the IHO dismissed the parents' due process complaint notice with prejudice (id.).
IV. Appeal for State-Level Review
The parents appeal, alleging that the IHO erred in finding that neither the parents nor a person in a parental relationship submitted a timely request for equitable services by June 1, 2023 for the 2023-24 school year. The parents further disagree with the IHO's determination that they failed to sustain their burden to establish the appropriateness of the SETSS delivered to the student by Future Plus during the 2023-24 school year. Additionally, the parents assert that the IHO erred in finding that the agency owner was not a credible witness. The parents also disagree with the IHO's findings with respect to equitable considerations, which were based, in part, on the agency owner's lack of credibility, the reasonableness of the hourly rate charged by the agency, and the failure to provide the district with a 10-day notice of unilateral placement. As relief, the parents seek an order directing the district to fund the costs of five periods per week of SETSS at the provider's contracted rate.
In an answer, the district responds to the parents' allegations, generally argues to uphold the IHO's decision in its entirety, and further asserts that the parents' appeal should be dismissed for failure to comply with the practice regulations.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[12] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[13] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Preliminary Matters
1. Compliance with Practice Regulations
The district argues that the parents failed to timely file the request for review with the Office of State Review and that this is not the first time that the parents' attorney has been delinquent or late in serving or filing the request for review. In addition, the district contends that the request for review fails to comply with practice regulations because the parents fail to state grounds for reversal or modification of the IHO's findings and, instead, only broadly assert that they disagree with the IHO's finding with regard to the June 1 notice. As a result, the district asserts that the parents' request for review must be dismissed.
Consistent with the district's argument, State regulation requires that a petitioner must personally serve the opposing party with the notice of intention to seek review no later than 25 days after the date of the IHO's decision and with the request for review no later than 40 days after the date of the IHO's decision (8 NYCRR 279.2[b]). Thereafter, the "notice of intention to seek review, notice of request for review, request for review, and proof of service [must be filed] with the Office of State Review . . . within two days after service of the request for review is complete" (8 NYCRR 279.4[e]). Here, the district acknowledges in its answer that the parents served the request for review upon the district on May 1, 2025, which was accurately reflected in the attorney affirmation of service accompanying the request for review; also, the district does not assert that the parents failed to timely serve the request for review (see Answer ¶ 4). Upon review, the request for review—which, pursuant to State regulation, should have been filed with the Office of State Review within two days after service, to wit, May 5, 2025—was not filed with the Office of State Review until May 20, 2025.[14] Additionally, the district was granted an extension of time to respond to the request for review after it was served on the district. Notably, the timeline for rendering a decision by the Office of State Review does not commence until the petitioner files the request for review. Based on the foregoing, I decline to exercise my discretion to dismiss the parents' appeal as the district suffered no prejudice as a result of the untimely filing of the request for review with the Office of State review, and there was minimal disruption of the State Review procedures.
With respect to the district's argument that the parents did not state a grounds for reversal or modification of the IHO's findings, but instead, disagreed with the findings, State regulations provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]). Additionally, the request for review "must conform to the form requirements in section 279.8 of this Part" (8 NYCRR 279.4[a]).
Section 279.8 of the State regulations requires that a request for review shall set forth:
(1) the specific relief sought in the underlying action or proceeding;
(2) a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review; and
(3) citations to the record on appeal, and identification of the relevant page number(s) in the hearing decision, hearing transcript, exhibit number or letter and, if the exhibit consists of multiple pages, the exhibit page number.
(8 NYCRR 279.8[c][1]-[3]).
Upon review, and notwithstanding the parents' rather succinct statement of their disagreement with the IHO's findings, I decline to dismiss the request for review on these grounds given that the parent identified the IHO's conclusion with which they took exception and, moreover, the district was able to respond to the allegations raised in the request for review in an answer and there is no indication that the district suffered any prejudice as a result (see Application of a Student with a Disability, Appeal No. 18-053; Application of a Student with a Disability, Appeal No. 17-101; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040; Application of a Student with a Disability, Appeal No. 15-069; Application of a Student with a Disability, Appeal No. 15-058).
In this instance, although the parents' failure to comply with certain aspects of the practice regulations will not ultimately result in a dismissal of the appeal, the parents—and the parents' attorney—are cautioned that, while a singular failure to comply with the practice requirements of Part 279 may not warrant an SRO exercising his or her discretion to dismiss a request for review or reject a memorandum of law (8 NYCRR 279.8[a]; 279.13; see Application of a Student with a Disability, Appeal No. 16-040), an SRO may be more inclined to do so after a party's repeated failure to comply with the practice requirements (see Application of a Student with a Disability, Appeal No. 18-010; Application of a Student with a Disability, Appeal No. 17-101; Application of a Student with a Disability, Appeal No. 16-060; see also Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040). However, in light of the foregoing, the district's arguments regarding the form of the parent's request for review are dismissed.
2. June 1 Deadline
The parents argue on appeal that they disagree with the IHO's determination that they failed to properly submit a written request for equitable services by June 1st. In addition, the parents contend that, contrary to the IHO's finding, the hearing record contained sufficient evidence to conclude that they asked the agency to send the June 1 notice on their behalf.
The district, in seeking to uphold the IHO's finding regarding the June 1 notice, argues that it timely raised the June 1 defense. In addition, the district asserts that it was improper for the agency to send the June 1 notice to the district—as opposed to an attorney representing parents or the parents directly sending the notice—and the June 1 notice did not include a signature.
The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
Here, it is undisputed that the district properly and timely raised the June 1 defense at the impartial hearing; thus, the parties' dispute focuses on whether the absence of an actual signature on the June 1 notice complied with the statutory requirements and whether it was proper for the agency to send the June 1 notice to the district.
Initially, there is no explicit prohibition set forth in Education Law § 3602-c against parents authorizing a third-party to deliver a June 1 request for dual enrollment services to a school district on the parents' behalf. Nor is there a requirement in the statute that the parent must use a particular type of signature or is precluded from the use of a conformed signature (see Educ. Law § 3602-c[2]). However, the statute does indicate that services shall be provided to students who attend nonpublic schools within the district "upon the written request of the parent or person in parental relation" (id.).
At the impartial hearing, the parent testified that she authorized the agency to send the June 1 notice to the district (see Tr. pp. 23-25; Parent Ex. H at pp. 1-2). Therefore, to the extent that the IHO's finding was based on the fact that the agency, rather than the parents themselves, sent the June 1 notice to the district, the IHO overlooked the evidence in the hearing record and improperly relied on this rationale as a basis for finding that the parents failed to comply with the statutory requirement to provide the district with notice by June 1, 2023. As a result, this portion of the IHO's decision must be vacated.
With regard to the signature, the district contends that the parents failed to explain the notation at the bottom of the June 1 notice and the parents did not claim at the impartial hearing that they had signed the June 1 notice. However, contrary to the district's assertions, the parent testified at the impartial hearing that she signed the June 1 notice "online" and then sent the signed document to the agency to forward to the district (Tr. p. 25, see Parent Ex. H at p. 2). A review of the June 1 notice reflects that, although the document includes the parent's typed name in the space allocated for the parent to print her name, the signature line remains blank but the notation at the bottom of the page reflects that the document was signed "via email with [the parents' email address]" (Parent Ex. H at p. 2).[15] In the instant matter, the district asserted at the impartial hearing that the absence of an actual signature on the June 1 notice established noncompliance, the parent's own attorney had asked her about whether she had authorized the agency to forward the notice to the district, and the IHO questioned the parent with regard to signing the June 1 document (see Tr. pp. 23-26). Of note, the IHO did not mention the absence of the parents' signature on the June 1 notice as a basis for finding that they had not complied with the statute (see IHO Decision at pp. 15-16).
Therefore, based on the evidence in the hearing record, and absent any evidence or assertion that the district did not receive the June 1 notice or, upon its receipt, reach out to the parents to question the blank signature line, the June 1 notice was sufficient to effectuate the purpose of the June 1 notice, which was to inform the district of the parents' desire to have special education services delivered to the student at his nonpublic school during the 2023-24 school year. For these reasons, the IHO's finding that the parents failed to timely seek equitable services for the student for the 2023-24 school year must be vacated.[16], [17]
B. Unilateral Placement
In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parents 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, the parents unilaterally obtained private services from Future Plus 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 parents' 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]).[18] 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 v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). 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 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 207 [1982). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student Needs
While the student's needs are not in dispute, a review thereof facilitates the discussion of the issue to be resolved, namely, whether the parents sustained their burden to establish the appropriateness of the SETSS delivered to the student by Future Plus during the 2023-24 school year.
Overall, the hearing record is devoid of any evaluative information describing or identifying the student's needs through standardized assessments; therefore, the student's needs will be gleaned from his December 2020 IESP and the SETSS provider's October 2023 assessment.[19]
According to the December 2020 IESP, the student had "significant delays in reading," and based on a "Fountas & Pinnell assessment, [he wa]s performing on level Q and c[ould] decode 100 words per minute with 75 percent accuracy" (Dist. Ex. 3 at p. 1).[20] It was reported that he could read familiar, multisyllabic words, but had difficulty with blending unfamiliar, multisyllabic words (id.). At that time, the student demonstrated "difficulty with words with an r controlled vowel," his reading accuracy was "poor," and he read "slowly" with a "stilted" fluency, which affected his reading comprehension skills (id.). The student also had difficulty sequencing when summarizing a story, had difficulty comparing characters, and typically required prompting to identify the theme of a story (id.). He also had difficulty, at times, with "answering to higher order thinking questions" (id.).
In mathematics, the December 2020 IESP reflected that the student could multiply and divide "two digit numbers" and he understood "decimals"; however, the student had difficulty with "comprehending word problems, writ[ing] accurate numerical expressions and multiply[ing] and divid[ing] fractions" (Dist. Ex. 3 at p. 1).
With respect to language, the December 2020 IESP noted that the student had "limited" expressive abilities, spoke in "choppy sentences," used grammatically incorrect sentence structures, and demonstrated "poor" spelling and vocabulary skills (Dist. Ex. 3 at p. 2). In addition, the IESP indicated that the student had "delayed" receptive language skills and had difficulty "following through with multi-step directions," which could also have been affected by his "poor focusing skills" (id.).
Socially, the December 2020 IESP described the student as "determined and responsible," albeit a "bit rigid" (Dist. Ex. 3 at p. 2). The December 2020 IESP included that the student "converse[d] appropriately with his teachers and peers," but that the student's "difficulties l[aid] in his stubborn nature and inability to verbally negotiate when he [wa]s upset as he ha[d] difficulty seeing another's point of view" (id.). The December 2020 IESP did not identify any difficulties with the student's motor functioning or physical development (id.).
In light of the student's needs, the December 2020 CSE recommended strategies to address his management needs, such as group activities, repetition and review, positive reinforcement and incentives, scaffolded lessons, multisensory activities, graphic organizers to aid in writing, visuals when presenting new concepts, breaks, differentiated instruction, and testing accommodations (i.e., extended time in a separate location to minimize distractions) (see Dist. Ex. 3 at p. 3). As noted previously, the CSE also recommended SETSS, speech-language therapy, and counseling services, together with annual goals, to address the student's needs (id. at pp. 4-8).
Turning to the SETSS provider's October 2023 assessment, the evaluator measured the student's functioning by administering the "Fountas [&] Pinnell Reading Assessment" and the "Rachel Carlton Math Placement Assessment" to the student, as well as by conducting classroom observations, soliciting parent and teacher input, and reviewing work samples (Parent Ex. I at p. 1). Based on the Fountas & Pinnell testing results, the evaluator noted that the student was performing "well below grade level" at a "level L," which had shown "only minor improvement despite intensive interventions" (id. at p. 1).[21] In addition, it was noted that the student's fluency rate remained "severely deficient at 60 words per minute," which, according to the evaluator, made it "nearly impossible for him to keep pace with classwork" (id.). The evaluator further noted that the student continued to "struggle significantly" to decode multisyllabic words, "frequently guessing instead of applying phonetic strategies" (id. at pp. 1-2). The evaluator indicated that the student had "weak" comprehension skills and could not consistently recall "key details from a passage" with the assistance of "visual aids" (id. at p. 2).
With regard to the student's writing skills, the evaluator found that he had "pronounced" deficits, including "disorganized" sentence structure and difficulty writing "basic coherent paragraphs" (Parent Ex. I at p. 2). According to the evaluator, the student's spelling was "unreliable, with frequent omissions of vowels and incorrect letter sequences" (id.). Although the student's handwriting had "improved slightly," it remained "inconsistent and difficult to read at times" (id.). In addition, the evaluator noted that, even if provided with graphic organizers, the student "remain[ed] unable to independently formulate and expand his thoughts in writing" (id.).
In mathematics, the October 2023 assessment reflected that the student's "skills [we]re critically below expected standards," with a "fundamental lack of proficiency in multi-step calculations" (Parent Ex. I at p. 2). In addition, the student reportedly "struggle[d] to apply basic addition and subtraction consistently and continue[d] to have major difficulties grasping multiplication and division" (id.). The evaluator also noted that "[f]ractions, decimals, and word problems remain[ed] virtually inaccessible to him without step-by-step guidance," and the student demonstrated a "minimal" ability to "apply problem-solving strategies" (id.). According to the evaluator, the student required "constant prompting and the use of manipulatives to complete even simple operations" (id.).
Turning to the student's processing speed and working memory, the October 2023 assessment noted "profound deficits" in both areas, as the student "frequently forg[ot] instructions within moments of hearing them, requiring multiple repetitions and constant redirection" (Parent Ex. I at p. 2). The evaluator also noted that the student's "inability to retain newly learned information greatly hinder[ed] his academic progress" and that he required "excessive time to complete tasks that his peers finish with ease" (id.). Additionally, the student's "struggles with executive functioning prevent[ed] him from maintaining focus, transitioning between tasks, and completing assignments independently" (id.). Finally, with respect to social/emotional functioning, the October 2023 assessment revealed that the student engaged in positive peer interactions but demonstrated "persistent difficulty in regulating his frustration when confronted with academic challenges" (id.). The evaluator indicated that the student would "shut down when tasks bec[a]me too difficult" and that this behavior had become "increasingly problematic, leading to frequent disengagement" (id.). Additionally, the student's "resistance to authority figures [wa]s more pronounced than before, requiring continued behavioral support to improve his compliance and adaptability in structured learning settings" (id.).
In light of the assessment results, the evaluator recommended that the student continue to receive five hours per week of SETSS with an emphasis on the following: intensive reading intervention focusing on phonetic strategies, decoding, and comprehension; one-to-one structured writing support to develop sentence construction, coherence, and organization; scaffolded mathematics instruction with reliance on the use of manipulatives and step-by-step guided problem-solving; explicit instruction in executive functioning skills; and behavioral interventions targeting task avoidance, frustration tolerance, and compliance with instructional directives (see Parent Ex. I at p. 3).
2. Specially Designed Instruction
The parents disagree with the IHO's finding that they failed to establish the appropriateness of the SETSS delivered by Future Plus during the 2023-24 school year. The parents specifically assert that the IHO erred in finding that all of the student's needs were not being met because Future Plus did not deliver speech-language therapy to him. The parents also argue that the owner's direct testimony provided the necessary information to support their claims, and both the IHO and the district had the opportunity to cross-examine the witness at the impartial hearing.
As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).
Overall, an independent review of the hearing record demonstrates that the weight of the evidence supports the IHO's findings. Initially, the owner's testimony—whether on direct or during cross-examination—yielded little, if any, information about the substance of the SETSS delivered to the student. For example, the owner testified that the agency provided the student with five hours per week of SETSS during the 2023-24 school year; the SETSS provider was bilingual, certified to teach students with disabilities, and "trained and experienced to teach literacy and comprehension to school aged children and adolescents"; the student received SETSS in a one-to-one setting, and the SETSS provider "prepare[d] for sessions, create[d] goals, wr[ote] progress reports, and m[et] with teachers and parents" (Parent Ex. D ¶¶ 12-14).[22] The owner also testified that the student's services, which "include[d] a great deal of specialized instruction," were "provided outside of the classroom" but within his "mainstream school" (id. ¶¶ 15, 17). In addition, the owner testified that "[g]oals were created" for the student to work on and the goals were "reviewed quarterly" (id. ¶ 16). The owner further testified that the student's "progress [wa]s measured through quarterly assessments, consistent meetings with the provider and support staff, observation of [the student] in the classroom, and daily session notes" (id. ¶ 18). The owner generally testified that the student had "already shown signs of progress" with SETSS, but he continued to require services at the same frequency and duration (id. ¶ 19).
During cross-examination, the owner explained that the student received individual SETSS because a group could not be formed to provide services "later on in the day," during "after school hours" (Tr. pp. 12-13). When the owner was referred to his direct testimony, which indicated that the student received SETSS at his school, the owner clarified that the student received SETSS in the agency's "office" for part of the school year, and when the SETSS provider could deliver services "earlier," the student received SETSS in the agency's office at school (Tr. p. 13; see Parent Ex. D ¶¶ 11, 15). The owner further clarified that, when the student received SETSS after school hours, it took place at the agency's office for the "first three months"; thereafter, the student received SETSS at school in a "private room" (Tr. pp. 13-14). The owner also testified that, initially, the parents requested that the student receive SETSS in the "evening," but the services were then changed to 4:30 p.m. in the afternoon, when school was still in session (Tr. p. 14). However, he also testified that Future Plus provided SETSS in a group, but that no group could be formed to include this student due to the parents' request to provide the student with services during the evening (see Tr. pp. 14-15).
Therefore, when the IHO concluded that the owner's testimony offered no substantive information about the SETSS sessions, the evidence in the hearing record supports that finding. The owner's testimony offers no insight into the content of the SETSS sessions delivered to the student by Future Plus during the 2023-24 school year.[23]
Next, although the student's SETSS provider did not testify at the impartial hearing, the parents entered two progress reports, dated February 2024 and June 2024, purportedly drafted by the SETSS provider during the 2023-24 school year (see generally Parent Exs. F-G). According to the February 2024 progress report, the student—a 12th grader—received SETSS on a "pull-out" basis and had "delays in reading comprehension, math, and language skills" (Parent Ex. F at p. 1). In reading, the progress report reflected that the student was then-currently reading at a Fountas & Pinnell "level N," which represented "minimal progress from last year when he was at [a Fountas & Pinnell] level L" (id.). The February 2024 progress report indicated that the student "read[] 70 words per minute" in comparison to his peers, who read "over 250 words per minute," and that his "decoding skills ha[d] shown slight improvement" (id.). The progress report reflected that the student could "now read basic sight words and the r-controlled vowel but still struggle[d] with multi-syllable words and dipthongs like 'down'" (id.). According to the progress report, "Orton Gillingham" had been introduced to the student, and focused on "practicing consonant blends and helping him recognize prefixes and suffixes" (id.). In the area of comprehension, the February 2024 progress report indicated that the student "struggle[d] with answering basic Wh-questions" notwithstanding the use of visual aids (i.e., story maps and sequence charts" to help him "organize and retain narratives better" (id.).
In writing, the February 2024 progress report noted the student's continued struggles in this area, with his performance falling "below expectations" (Parent Ex. F at p. 1). Although the student's handwriting was "more consistent and neater" and his spelling had "improved slightly," he demonstrated difficulty "composing coherent paragraphs and maintaining a consistent train of thought" (id.). According to the report, "[f]lowcharts ha[d] been introduced" in order to assist the student with organization of his writing, and the student was "encouraged to read his writing aloud to identify necessary punctuation" (id.).
In math, the February 2024 progress report noted that the student had made "some progress in solving fundamental math operations," but he demonstrated "significant challenges with double-digit multiplication and division, fractions, decimals, and basic equations" (Parent Ex. F at pp. 1-2). According to the progress report, the provider used "counting tiles, multiplication cubes, and fraction tiles to enhance his understanding and improve his math skills" (id at p. 2). Word problems continued to prove difficult for the student, especially given his "limited vocabulary and reading comprehension skills," and the provider used "scaffolding techniques and highlighters" to help "simplify steps and identify keywords" (id.).
As for the student's language skills, the February 2024 progress report indicated that the student had difficulty "processing language input," including "difficult[y] following" multistep instructions and trouble with concentration after he "bec[ame] overwhelmed" (Parent Ex. F at p. 2). The SETSS provider used "timers and list-format instructions" to assist the student with time management and focus (id.).
Finally, the February 2024 progress report included that the student "sometimes" had difficulty "comply[ing] with authority figures," although the report also indicated that the student "demonstrate[d] a high level of responsibility for his age" (Parent Ex. F at p. 2). Overall, the SETSS provider recommended that the student's services "continue as present" so that he could "function appropriately in the classroom" (id.).
Turning to the June 2024 progress report, it was noted that the student demonstrated improvement in each of the areas identified in the February 2024 progress report (compare Parent Ex. F at pp. 1-2, with Parent Ex. G at pp. 1-2). The June 2024 progress report included that the student demonstrated "noticeable progress in his reading," improved his ability to answer "basic Wh-questions," made "steady progress" in writing, and made "significant progress in solving fundamental math operations" and was "beginning to grasp double-digit" arithmetic (Parent Ex. G at p. 1). In addition, the June 2024 progress report indicated the student was "better at solving word problems," demonstrated an "improvement in processing language input," was "more independent" with task completion, and had "ma[de] progress in complying with authority figures" (id. at p. 2).
More specifically, the June 2024 progress report indicated that the student was then-currently reading at a Fountas & Pinnell level P, which had increased from a "level N in February" 2024 (Parent Ex. G at p. 1). Further, the June 2024 progress report indicated that the student could then-currently read "100 words per minute," which represented an improvement from February 2024 when he could read 70 words per minute (compare Parent Ex. G at p. 1, with Parent Ex. F at p. 1).
In contrast to the owner's testimony, while the February 2024 and June 2024 progress reports provide some information about the student's academic, language, and social/emotional functioning during the 2023-24 school year, the progress reports offer little more than a glimpse into what the SETSS provider used with the student as far as specially designed instruction, such as introducing the Orton Gillingham approach, visual aids, and flowcharts to the student; using a multisensory approach and providing positive reinforcement; having the student read his writing aloud; and using various manipulatives in mathematics (see generally Parent Exs. F-G). However, the progress reports do not provide any information about the actual skills the SETSS provider worked on, as the hearing record is devoid of any evidence about the goals the student worked on during the 2023-24 school year (see generally Tr. pp. 1-40; Parent Exs. A; C-I; Dist. Exs. 1-4; IHO Ex. I).
In determining that the evidence in the hearing record did not support finding that the SETSS were appropriate, the IHO also pointed out in the findings of fact that the student's reading and mathematics skills—as reported in the October 2023 assessment, the February 2024 progress report, and the June 2024 progress report—were far below his reading and mathematics skill levels reported in the December 2020 IESP and the hearing record provided no explanation for these discrepancies (see IHO Decision at pp. 6-7). A review of the evidence in the hearing record supports the IHO's findings. For example, in the December 2020 IESP, the student was reading at a Fountas & Pinnell level Q, he read 100 words per minute, understood decimals, and multiplied and divided two-digit numbers (see Dist. Ex. 3 at p. 1). The October 2023 assessment indicated that the student read at a Fountas & Pinnell level L, read 60 words per minute, "struggle[d]" with "basic addition and subtraction," "ha[d] major difficulties" with "multiplication and division," and that decimals "remain[ed] virtually inaccessible to him" (Parent Ex. I at pp. 1-2). Then, in the February 2024 progress report, the student was reading at a Fountas & Pinnell level N, read 70 words per minute, could not perform two-digit multiplication or division, and had difficulty with decimals (see Parent Ex. F at pp. 1-2). The June 2024 progress report indicated that the student was reading at a Fountas & Pinnell level P, read 100 words per minute, and had "beg[un] to grasp double-digit multiplication and division" and "decimals" (Parent Ex. G at p. 1). The parents did not provide any explanation as to the student's apparent loss of skills between those reported in the December 2020 IESP and the student's skills reported during the 2023-24 school year.
Moreover, the hearing record—as the IHO pointed out—failed to include any information about the goals developed or addressed by the SETSS provider, nor did the SETSS provider describe how the student accessed the general education curriculum, despite a statement in the October 2023 assessment indicating that the student's "fluency . . . ma[de] it nearly impossible for [the student] to keep pace with classwork" (Parent Ex. I at p. 1). With respect to the latter point, regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). However, as the IHO observed, 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. 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 Future Plus supported his functioning in the classroom. Without evidence regarding the school-based programming, the unilaterally-obtained services were described in isolation as was any progress made by the student. 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.
Given the totality of the circumstances, there is no reason to disturb the IHO's finding that the parents failed to establish the appropriateness of the SETSS delivered to the student by Future Plus during the 2023-24 school year.
VII. Conclusion
Having found that the evidence in the hearing record supports the IHO's determination that the parents failed to sustain their burden to establish the appropriateness of the SETSS delivered by Future Plus, the necessary inquiry is at an end. I have considered the parties' remaining contentions and find that, in light of my determination herein, I need not address them.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district, a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the 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] The December 2020 IESP included a projected implementation date of January 4, 2021 and a projected annual review date of December 9, 2021 (see Dist. Ex. 3 at p. 1). At the time of the December 2020 CSE meeting, the student was 18 years old and based on his date of birth, would have been considered to be a 12th grade student (id.).
[4] The parent's typed name appears on the district form, but it lacks an actual signature (see Parent Ex. H at p. 2). For the purpose of clarity, the term parent will be used when solely referring to the student's mother (id.).
[5] Except for the due process complaint notice, the remainder of parents' exhibits were not paginated; for the purposes of this decision, the pages of the parents' exhibits will be cited by reference to their consecutive pagination with the first page as page one, where required.
[6] The special education teacher who evaluated the student was the SETSS provider from Future Plus who delivered services to the student during the 2023-24 school year (compare Parent Ex. H at p. 1, with Parent Ex. E, and Parent Ex. F at pp. 102, and Parent Ex. G at pp. 1-2). The evidence in the hearing record indicates that when the SETSS provider delivered services to the student during the 2023-24 school year, he held initial certificates to teach early childhood education (birth to grade 2) and students with disabilities (birth to grade 2) (see Parent Ex. E). The SETSS provider thereafter received an initial certificate to teach students with disabilities (all grades) in July 2024, after the conclusion of the 2023-24 school year (id.).
[7] Future Plus, a limited liability company, has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[8] According to the August 2015 IESP, the student had been "promoted to [seventh] grade as of September 2015" (Dist. Ex. 4 at p. 1). In the July 2024 due process complaint notice, the parents noted that the student was 21 years old (see Parent Ex. A at p. 1). According to the parent, by the time the impartial hearing was held in February 2025, the student was "not in school anymore" and had graduated and aged-out of eligibility to receive special education under the IDEA as of June 2024 (see Tr. pp. 24-25).
[9] The supplemental notice reflected the following special education program recommendations for the student: five periods per week of SETSS, two 30-minute sessions per week of speech-language therapy, and two 30-minute sessions per week of counseling services (see Dist. Response to Due Process Compl. Notice at p. 3). The Supplemental Notice also reflected supplementary aids and services recommended for the student, which would have been implemented from January 2021 through June 2021 (id.). The aforementioned recommendations are consistent with those set forth in the student's December 2020 IESP (see Dist. Ex. 3 at pp. 1, 6-8).
[10] The district submitted a written motion to dismiss for lack of subject matter jurisdiction dated December 30, 2024 (see generally Dist. Mot. to Dismiss). The IHO denied the district's motion on the record at the impartial hearing held on February 10, 2024 (see Tr. p. 5), and the IHO's ruling on subject matter jurisdiction has not been appealed and therefore will not be further addressed in this decision.
[11] The agency owner was also the agency's executive director (see Parent Ex. D ¶ 4).
[12] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[13] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[14] In a letter to the Office of State Review dated May 1, 2025, the parents' attorney requested an extension of time, from May 1, 2025 to May 15, 2025, to serve and file the request for review in this matter. The Office of State Review responded to the parents' attorney in a letter dated May 1, 2025, indicating that an SRO was unable to grant a letter request for an extension to serve a request for review as it contravened State regulations and additional guidance with respect to relevant State regulations.
[15] In a recent appeal, another SRO found that the evidence in the hearing record minimally weighed in favor of finding that the parent timely provided the district with a June 1 notice that included the use of a conformed signature because the district had not otherwise challenged or asserted any noncompliance with the June 1 notice at the impartial hearing (see Application of a Student with a Disability, Appeal No. 25-144). In that appeal, evidence reflected that the parent was copied on the agency's email forwarding the June 1 notice to several CSEs in the district; in this matter, the agency email forwarding the June 1 notice to the district also sent it to more than one CSE in the district, but the agency's email did not appear to copy the parents in that communication (see Parent Ex. H at pp. 1-2).
[16] To be clear, normal practice would be for the June 1 notice to include the parents' physical signature, whether done in person or electronically, in order to avoid any appearance of impropriety.
[17] To the extent that the district argues that the absence of a contractual relationship between Future Plus and the parents at the time the agency sent the June 1 notice to the district in May 2023 makes it "highly unlikely" that the parents would have authorized Future Plus to send the June 1 notice, this argument is unpersuasive. Contrary to the district's arguments, the agency's delivery of the June 1 notice prior to any contractual relationship with the parents does not directly inure a benefit to the agency, as the district could move forward at any time after receiving the June 1 notice to implement the student's special education program, which is all the June 1 notice seeks to accomplish.
[18] 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 Future Plus (Educ. Law § 4404[1][c]).
[19] Although the hearing record includes a copy of the student's August 2015 IESP when he was about to enter seventh grade, the present levels of performance and individual needs section of the IESP provides little, if any, information about the student's academic, social, or physical development and needs (see Dist. Ex. 4 at pp. 1-2). For example, with respect to the student's academic achievement, functional performance, and learning characteristics, the August 2015 IESP reflects that, as reported by the parent, the student performed "below grade in English reading, comprehension, and math" (id. at p. 1). Additionally, the IESP reflects that the student was "stronger in math, compared to reading skills"; the student put "more efforts in Hebrew studies"; and the parent expressed concern about the student's "academic difficulties" and "want[ed] him to put efforts and learn English subjects as well because in order to succeed he need[ed] to be good in English also and not only Hebrew" (id. at p. 1). The August 2015 IESP indicated that the student had been diagnosed as having an attention deficit hyperactivity disorder (ADHD) and refused to wear his prescription eye glasses (id. at p. 2).
[20] While not described in this hearing record, a Fountas & Pinnell level Q has been characterized in other State-level appeals as a fourth-grade reading level (see, e.g., Application of the Dep't of Educ., Appeal No. 24-176; Application of a Student with a Disability, Appeal No. 23-197; Application of a Student with a Disability, Appeal No. 22-116; Application of a Student with a Disability, Appeal No. 22-109).
[21] While not described in this hearing record, a Fountas & Pinnell level L has been characterized in other State-level appeals as a second-grade reading level (see, e.g., Application of a Student with a Disability, Appeal No. 24-321; Application of a Student with a Disability, Appeal No. 24-072; Application of a Student with a Disability, Appeal No. 22-109).
[22] To be clear, while a provider's qualifications are generally not dispositive when assessing the appropriateness of services delivered, the hearing record in this matter does not include any evidence to establish that the SETSS provider held a bilingual extension in Yiddish—or that the student received SETSS in Yiddish, as recommended in the December 2020 IESP—or that the SETSS provider held any additional certifications in literacy (see Parent Ex. E).
[23] The parents also dispute the credibility findings made by the IHO with respect to the owner's testimony. While the IHO's credibility findings reflect a mix of what might be construed as more traditional credibility elements – e.g. the plausibility of certain factual statements in light of their context – with considerations that are perhaps more properly construed as the IHO's determination as to what weight should be afforded the owner's testimony, I note that I need not consider such arguments here as the IHO explicitly limited his credibility determinations to that portion of the owner's testimony relevant to the issue of equitable considerations, a factor that I do not reach in this decision.