STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-310
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:
Law Offices of Martin Marks, attorneys for petitioner, by Martin Marks, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied his request that respondent (the district) fund the costs of his son's special education and related services delivered by private providers for the 2024-25 school year. The district cross-appeals from the IHO's interim decision on pendency and raises additional grounds for denying the parent's 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 programming 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
On December 9, 2015, a Committee on Preschool Special Education (CPSE) convened, found the student eligible for special education services as a preschool student with a disability, and developed an individualized education program (IEP) (see Parent Ex. B). The December 2015 CPSE recommended that the student receive eight 60-minute sessions per week of special education itinerant teacher (SEIT) services, three 30-minute sessions per week of individual speech-language therapy, two 45-minute sessions per week of individual occupational therapy (OT), two 45-minute sessions per week of individual physical therapy (PT), and two 30-minute sessions per week of individual counseling services, on a 12-month basis (id. at p. 1). At the time of the CPSE meeting the student was attending a nonpublic school (id. at p. 4). It appears that the student has attended the same "mainstream" nonpublic school throughout elementary school and received a diagnosis of autism spectrum disorder (ASD) (see Tr. p. 61; Parent Exs. B at p. 4; G at p. 2; H at pp. 1, 2; Dist. Exs. 2 at p. 1; 8 at p. 1; 9 at p. 1).[1]
According to an IHO who presided over a prior matter, the parent had been "litigating about [the student's] program since he ha[d] turned [five]," without resolution, until March 3, 2021, when the IHO issued a findings of fact and decision that ordered the district to fund the costs of services delivered by private providers during the 10-month school year, including: eight 60-minute sessions per week of individual special education teacher services; three 30-minute sessions per week of individual speech-language services; two 45-minute sessions per week of individual OT; two 45-minute sessions per week of individual PT; and two 30-minute sessions per week of individual counseling services (Parent Ex. C at pp. 3, 7, 8).[2] The IHO also determined that the student was not eligible for special education on a 12-month basis (id. at p. 4).[3]
In a prior written notice dated September 13, 2021, the district informed the parent that the student was due for a re-evaluation and determined that neuropsychological and psychoeducational assessments were needed (Dist. Ex. 5 at p. 2). On December 8, 2021 a pediatric neuropsychologist conducted a neuropsychological and educational evaluation of the student and reported results on February 2, 2022, concluding that the student presented with an "attention deficit hyperactive disorder" and a specific learning disability in writing (Dist. Ex. 10). At that time the student was 10 years old and in fourth grade at the nonpublic school (id. at p. 1). Subsequently, the student's counselor, speech-language therapist, and an occupational therapist completed reports regarding the student's skills and needs (see Parent Ex. G; Dist. Exs. 7; 9).
A CSE convened on April 5, 2022, found that the student continued to be eligible for special education as a student with an other health impairment, and developed an IESP with a projected implementation date of April 19, 2022 (Dist. Ex. 2 at p. 1). The April 2022 CSE recommended that the student receive two 30-minutes sessions per week of group speech-language therapy; two 30-minute sessions per week of group counseling services; three 30-minute sessions per week of individual OT; and one 30-minute session per week of individual PT (id. at p. 11). Through a prior written notice dated May 12, 2022, the district informed the parent of the April 2022 CSE's recommendations for related services (Dist. Ex. 4 at p. 1). The prior written notice reflected that the April 2022 CSE used the following reports in developing the IESP: a counseling progress report dated January 20, 2022; a speech-language progress report dated February 14, 2022; an OT progress report dated March 22, 2022; a teacher report dated April 5, 2022; and a parent report dated April 5, 2022 (id. at p. 2).
In a letter dated May 11, 2023, the district notified the parent that, if he intended to place the student in a nonpublic school at his own expense for the 2023-24 school year, he was required to submit a written request for special education services from the district by June 1, 2023 (Dist. Ex. 6). On September 14, 2023, the district entered into a resolution agreement with the parent stemming from a prior dispute, reflecting that, for the 2023-24 school year, the student was to receive eight hours per week of 1:1 special education teacher support services (SETSS); three 30-minute sessions per week of individual speech-language therapy; two 45-minute sessions per week of individual OT; two 45-minute sessions per week of individual PT; and two 30-minute sessions per week of individual counseling services, all at a rate not to exceed $175 per hour (Parent Ex. E).
During the 2024-25 (seventh grade) school year, the student attended a mainstream nonpublic school and, as relevant to this appeal, received unilaterally obtained SETSS, OT, paraprofessional, and Board Certified Behavior Analyst (BCBA)/Licensed Behavior Analyst (LBA) services (Tr. pp. 61-63; Parent Exs. H at pp. 2, 20; K ¶¶ 1, 2; L ¶¶ 2, 5; M ¶ 1).[4]
A. Due Process Complaint Notice
In a due process complaint notice dated October 9, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (Parent Ex. A at p. 1).[5] The parent requested an order of pendency pursuant to the December 9, 2015 IEP and alleged that the district failed to create a "proper IESP" for student or provide most speech-language, OT, or counseling services for the 2023-24 school year (id. at pp. 1-2). As relief, the parent requested an order directing the continuation of the student's SETSS and related services pursuant to the "last agreed upon IESP at enhanced rate," and the addition of applied behavior analysis (ABA)/BCBA services and full-time behavioral paraprofessional services to the student's IESP (id. at p. 2). The parent requested services to be delivered on a 12-month basis and an award of compensatory education for missed services (id.).
The district submitted a due process response on October 18, 2024, notifying the parent that the district would assert various defenses, including the June 1 affirmative defense, and intended to submit a motion to dismiss for lack of subject matter jurisdiction (Dist. Response to Due Process Compl. Not. at pp. 1-2). The district submitted a motion to dismiss for lack of subject matter jurisdiction on October 18, 2024 (IHO Ex. I at pp. 1, 5).
B. Impartial Hearing Officer Decision
The matter was assigned to an IHO with the Office of Administrative Trials and Hearings (OATH). After a prehearing conference on November 15, 2024 (Tr. pp. 1-19), a hearing date devoted to the student's pendency placement took place on November 27, 2024, at which the district failed to appear (Tr. pp. 20-27). The IHO signed the parent's proposed pendency order on November 27, 2024, directing the district to fund eight 60-minute sessions per week of individual SEIT services, three 30-minute sessions per week of individual speech-language therapy, two 45-minute sessions per week of individual OT, two 30-minute sessions per week of individual counseling, and two 45-minute sessions per week of individual PT, all on a 12-month basis, based on the "Unappealed Findings of Fact and Decision . . . Dated March 3, 2021" (IHO Ex. III). Two hearing dates devoted to the merits took place on December 23, 2024 and on January 30, 2025 (Tr. pp. 28-127).
In a decision dated April 17, 2025, the IHO noted that the parent withdrew his claims for the 2023-24 school year and confirmed that he was only seeking relief for the 2024-25 school year (Tr. p. 38; IHO Decision at pp. 3-4 & n.2). The IHO also indicated that, during the impartial hearing, he denied the district's motion to dismiss, and, further, that the district had not asserted an affirmative defense based on the parent's failure to submit a written request for equitable services to the district prior to June 1, 2024 (Tr. p. 53; IHO Decision at pp. 4, 7). The IHO found that the district failed to meet its burden to prove that it offered the student "a FAPE on an equitable basis" for the 2024-25 school year, noting that it was uncontested that the district failed to develop either an IEP or an IESP for the student for the 2024-25 school year (IHO Decision at pp. 3, 7).
With respect to the unilaterally obtained services, the IHO held that the parent met his burden of proving that the student required BCBA services and the services of a behavioral paraprofessional, but failed to meet his burden of proving that the unilaterally obtained SETSS and OT services provided to the student during the 2024-25 school year were appropriate to meet the student's unique needs (IHO Decision at pp. 8-10). Noting that the appropriateness of unilateral programming "is analyzed in the binary – the private school placement is either appropriate or not appropriate" and could not "be found partially appropriate," the IHO found that the BCBA and behavior paraprofessional services could not "make up for the shortfalls and lack of evidence relating to the SETSS and OT" (id. at pp. 8, 10).
Having determined that the parent did not meet his burden to prove the appropriateness of the unilaterally obtained services, the IHO did not perform an analysis of equitable considerations (see IHO Decision). The IHO denied the parent's request for funding of the unilaterally obtained services for the 2024-25 school year (id. at p. 10). However, the IHO directed the district to "seek [p]arent's consent to reevaluate [s]tudent and," if it received such consent, to "reevaluate [s]tudent in all areas of suspected disabilities" and reconvene the CSE to review the student's records and develop an IESP "based on [s]tudent's current needs" (id. at pp. 10-11).
IV. Appeal for State-Level Review
The parent appeals, asserting that the IHO erred in determining that the parent failed to meet his burden to prove that the services provided by the student's SETSS and related service providers were appropriate to meet the student's unique needs. In addition, the parent asserts that, because the district made no arguments regarding equitable considerations during the impartial hearing, and because the IHO failed to render a decision on the equities, the district should be precluded from raising any such issues on appeal. As relief, the parent seeks funding for the SETSS as related services and addition of ABA/BCBA and behavior paraprofessional services to the student's IESP on a 12-month school year basis.
In an answer with cross-appeal, the district asserts that the IHO correctly found that the parent failed to meet his burden to prove the appropriateness of the unilaterally obtained services but, as an additional basis for denying relief, argues that equitable considerations do not favor the parent's request because the hearing record lacked evidence of a 10-day notice or of the parent's financial obligation to pay for the unilaterally obtained services. The district also argues that the IHO's November 27, 2024 pendency order should be vacated because the parent effectively rejected pendency by unilaterally obtaining services not recommended by the district.
In a reply and answer to the district's cross-appeal, the parent argues that the district should be deemed estopped from asserting that equitable considerations warrant a denial of relief or that the pendency order should be reversed because it failed to raise such issues during the impartial hearing.
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]).[6] "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.).[7] 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. Pendency
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[8] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
Here, the district appears to argue that the student's pendency was comprised of "[district]-recommended services" (Answer & Cr.-Appeal ¶ 16); however, the district states no basis for its position. Instead, the IHO correctly determined (and the district subsequently concedes) that the unappealed March 3, 2021 IHO decision, awarding funding for unilaterally obtained services, provided the basis for the student's pendency program (see IHO Ex. III; see also Parent Ex. C; Answer & Cr.-Appeal ¶ 18). Although it is true that, generally, the district is entitled to determine how the student's pendency services are to be provided (see Ventura de Paulino, 959 F.3d at 536), where, as here, the unappealed IHO decision upon which pendency is based awards district funding of unilaterally obtained private services, the district's obligation under pendency is to continue to fund such services arranged for by the parent (M.W. v. New York City Dep't of Educ., 2026 WL 504593, at *4-*6 [S.D.N.Y. Feb. 24, 2026] [noting that the district's obligation "turns on the precise language in each student's administrative order"], quoting Donohue v. Banks, 2023 WL 6386014, at *1 [S.D.N.Y. Sept. 30, 2023]). This is distinguishable from matters in which a student's pendency placement lays in the educational plan (IEP or IESP) developed by the district, which contemplated public delivery of special education services (see Application of a Student with a Disability, Appeal No. 24-619).
As pendency, the IHO directed the district to fund eight 60-minute sessions per week of individual SEIT services, three 30-minute sessions per week of individual speech-language therapy, two 45-minute sessions per week of individual OT, two 30-minute sessions per week of individual counseling, and two 45-minute sessions per week of individual PT based on the unappealed March 3, 2021 IHO decision (Tr. pp. 20-27; IHO Ex. III).[9] At the time of the impartial hearing in this matter, the student was receiving unilaterally obtained SETSS, OT, BCBA, and paraprofessional services (Tr. pp. 61-63; Parent Exs. H at pp. 2, 20; K ¶¶ 1, 2; L ¶¶ 2, 5; M ¶ 1). There is also some indication that the student received speech-language therapy and counseling (Tr. pp. 62-63, 82).
Although the parent obtained services for the student above and beyond the pendency placement (i.e., BCBA and paraprofessional services), he does not seek district funding of these services under pendency, and, contrary to the district's position, the delivery of such services does not affect a forfeiture of the students right to pendency. With respect to the parent arranging for programming that did not include certain services to which the student was entitled, under the factual circumstances, I do not find that this amounted to a change in placement such that the overall programming no longer reflected the pendency placement to which the student was entitled.[10] Unlike the matters cited by the district, the parent here did not unilaterally transfer the student from the nonpublic school the student was entitled to attend pursuant to pendency to another nonpublic school (see Application of a Student with a Disability, Appeal No. 24-233; Application of the Dep't of Educ., Appeal No. 23-023). Further, while there is no indication that the student received PT during the pendency of the proceedings, the evidence is less clear with respect to speech-language therapy and counseling (Tr. pp. 62-63, 82), and, during the impartial hearing, the district did not pursue any inquiry into the circumstances of the pendency services ceasing or the reasons therefor.
Accordingly, there is no basis to disturb the IHO's interim decision on pendency in this matter.
B. Unilaterally Obtained Services
Turning to the unilaterally obtained services, 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 offer or provide the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, he unilaterally obtained private services 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, 959 F.3d at 526 [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]).[11] 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 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; 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).
Here, the hearing record shows that the student presents with delays in cognitive, academic, fine and gross motor, social/emotional, and behavioral skills (Parent Ex. H; Dist. Ex. 2 at pp. 1-6; 10). For the 2024-25 school year, the student received unilaterally obtained SETSS, OT, BCBA/LBA, and paraprofessional services (Tr. pp. 61-63; Parent Exs. H at pp. 2, 20; K ¶¶ 1, 2; L ¶¶ 2, 5; M ¶ 1). Evidence in the hearing record regarding such programming includes documentation of the licenses held by the student's LBA and occupational therapist; testimony from the LBA providing the BCBA/LBA services and supervising the behavioral paraprofessional services, the special education teacher providing SETSS, and the occupational therapist providing OT services; as well as an October 20, 2024 reassessment and care plan prepared by the LBA (see Tr. pp. 56-85, 104-20; Parent Exs. H-M).
As summarized above, the IHO noted the student's behavioral and special education needs, finding that, while the evidence in the hearing record "establishe[d] that the BCBA services and behavioral paraprofessional services provided to [the s]tudent sufficiently address[ed] and me[t] [the s]tudent's behavioral needs, the record fail[ed] to show that the SETSS and OT provided to [the s]tudent . . . me[t] [the s]tudent's individual special education needs" (IHO Decision at pp. 8-10). Regarding SETSS and OT, the IHO held that the parent "failed to submit any documentation [or testimony] regarding the short-term or annual goals [the s]tudent worked on with [the] SETSS [or OT] Direct Provider[s] during the 2024-2025 school year" or any session or progress notes or "evidence regarding the specific techniques and methodologies" used by the providers during their sessions with the student (id. at pp. 9-10). The IHO found that the testimony of the SETSS and OT providers "to be both vague and lacking in specificity" (id.).
According to the October 2024 reassessment and care plan, the student "present[ed] with significant delays across all areas of development" related to his autism diagnosis (Parent Ex. H at pp. 3-16). The BCBA who prepared the report indicated that the student's autism severity level was considered moderate (level II) requiring substantial support with core deficits in verbal and nonverbal communication, specifically reporting that the student often resorted to "problem behavior to express his wants and needs, rather than using language" (id. at p. 4). The targeted goals addressed the student's adaptive behavior, communication, and social/emotional deficits and were designed to address the core ASD symptoms (id. at pp. 4-10). The BCBA further indicated that, due to these skill deficits, "it [wa]s medically necessary for the [student] to receive ABA treatment at this time in order to attain the necessary skills to function within his/her family and alongside his/her peers" (id. at pp. 1, 10). The treatment was to utilize ABA methodology and technology to "assist the [student] in reaching the treatment goals set forth in this plan" (id.).
The October 2024 reassessment and care plan included a behavior intervention plan targeting the student's aggression, non-compliance, eloping, and socially inappropriate behaviors (Parent Ex. H at pp. 11-13). Next, the reassessment and care plan indicated that the BCBA would "coordinate[] care with all medical and behavioral health providers, specialists and other practitioners involved in a member's care in order to ensure consistency in treatment and promote generalization in learning when appropriate" (id. at p. 13). Further, the BCBA described the processes for team training, parent or guardian involvement, clinical emergency or crisis plan, and fading/discharge criteria and transition plan (id. at pp. 13-18). The BCBA made the following recommendations for the student: 12 hours of reassessment per authorization period; 29 hours per week of adaptive behavior treatment by protocol, administered by a technician (face to face with one patient); two hours per week of adaptive behavior treatment with protocol modification (face to face with one patient); two hours per week of direction of technician (face to face with one patient); and two hours per week of family adaptive behavior treatment guidance (with or without the patient present) (id. at p. 19).
The special education teacher testified in an affidavit that he had provided SETSS to the student since September 2018, and that the student's "significant academic, emotional, and behavioral challenges . . . require[d] intensive intervention" (Parent Ex. M ¶¶ 1, 2). At the hearing, the special education teacher testified that, during summer 2024 and the 2024-25 school year, he provided eight hours per week of SETSS in English to the student, "mainly in school, but some outside of school as well," on both a push-in and pull-out basis, and that the student made progress in his mainstream classroom with those services (Tr. pp. 57-61). After describing the student's academic needs and behavioral challenges, the special education teacher indicated that the student required nine hours per week of direct SETSS "to provide individualized instruction, review the daily academic material, re-teach key concepts, and assist with assignments," and two hours per week of indirect SETSS "to collaborate with his teacher, principal, and related service providers" (Tr. pp. 60, 63-65; Parent Ex. M ¶¶ 3-5). The special education teacher identified the neuropsychological evaluation findings and his professional observations as further support for the recommendations (Tr. p. 60; Parent Ex. M ¶ 6).
In an affidavit, the student's occupational therapist testified that she had provided OT services to the student since October 2020, and, according to March 2022 evaluation results, the student "demonstrate[d] significant motor delays" in the areas of fine motor control, manual dexterity and upper limb coordination, balance, bilateral coordination, and strength (Parent Ex. K ¶¶ 1-4). The occupational therapist testified that she provided individual sessions to the student in a "therapy office" in a "rented space" (Tr. pp. 104, 110). According to the occupational therapist, the student presented with distractibility, fatigue and poor core strength, and sensory processing deficits, requiring the need for 45-minute sessions rather than 30-minute sessions typical of students his age (Parent Ex. K ¶¶ 5-6). Sessions would also address the student's fine motor control and bilateral coordination, postural endurance and body awareness, and self care/activities of daily living skills needed for the classroom (id. ¶ 7). To assist the student during the 2024-25 school year, the occupational therapist testified that she "purchased med balls, scooter boards, different sensory equipment to help with attention in the classroom, such as resistive bands for the legs to help provide some input, to increase the focus, different kinds of paper to help with . . . focusing and writing within the lines," as well as sensory bins, "weighted balls, games, [and] software" (Tr. pp. 117-18). The occupational therapist identified the results of her OT evaluation of the student, her observations over the course of working with the student, and her expertise as the basis for her recommendations (Parent Ex. K ¶ 8).
On appeal the parent relies on the October 2024 reassessment and care plan, in conjunction with the special education teacher's and occupational therapist's testimony, to explain how the SETSS and OT delivered to the student met his needs. However, as described above, the evidence does not indicate that the special education teacher implemented the supports and goals outlined in the October 2024 reassessment and care plan (compare Parent Ex. H, with Tr. pp. 56-70 and Parent Ex. M). Review of testimony shows that the special education teacher stated that he spoke to the BCBA "relatively often . . . maybe every week or every other week," and that at times he observed the "ABA" paraprofessional to see what he was working on (Tr. pp. 63, 64). The BCBA testified that she did not "spend as much time with the SETSS provider" as with other teachers and related service providers who worked with the student and could not recall how many times she spoke with the special education teacher during the 2024-25 school year (Tr. pp. 71, 82-83). While the special education teacher may have had some communication with the BCBA and the student's paraprofessional, his testimony did not provide information regarding how, if at all, he implemented the reassessment and care plan. Nor does review of the evidence show how the special education teacher delivered specially designed instruction to the student to meet his unique academic needs during the 2024-25 school year (see Tr. pp. 56-70; Parent Ex. M). Regarding OT, the evidence does not indicate that the occupational therapist implemented the supports and goals outlined in the October 2024 reassessment and care plan, and, other than relaying equipment she used with the student, does not show how she delivered specially designed instruction to him during the 2024-25 school year (compare Parent Ex. H, with Tr. pp. 104-20 and Parent Ex. K).
Accordingly, there is insufficient basis in the hearing record to disturb the IHO's finding that, based on the totality of the circumstances, the parent did not meet his burden to prove that the unilaterally-obtained programming met the student's needs. Although the IHO found the evidence sufficiently established the appropriateness of the BCBA/LBA services, he correctly noted that that the analysis of the unilateral placement was "a binary inquiry" and that the parent was required to prove the appropriateness of the unilateral placement taking into account the totality of the circumstances (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]).
VII. Conclusion
Having found insufficient basis in the hearing record to disturb the IHO's interim decision on pendency or the IHO's determination that the parent failed to meet his burden of proving that the unilaterally obtained services were appropriate to meet the student's unique needs, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of tuition reimbursement (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] According to an October 20, 2024 reassessment and care plan, the student had received a "most recent" diagnosis of ASD on December 8, 2021 (Parent Ex. H at pp. 1, 20). The student did not receive an ASD diagnosis following the February 2, 2022 neuropsychological and educational evaluation (see Dist. Ex. 10).
[2] The IHO in the prior matter specifically ordered the individual special education services to be delivered at the student's school by "a duly-licensed special education teacher" rather than as a continuation of SEIT services, which the IHO determined was a "preschool service" (Parent Ex. C at p. 4).
[3] The parent pursued an impartial hearing in yet another matter involving the student, and, on July 27, 2021, the parent and the district agreed that the student's stay-put placement during the pendency of that proceeding consisted of a "[c]ombination" of the services recommended in the student's December 2015 IEP and the March 2021 IHO decision; namely, eight sessions per week of individual "SEIT Direct" services ("from a duly-licensed special education teacher"), three 30-minute sessions per week of individual speech-language services, two 45-minute sessions per week of individual OT services, and two 45-minute sessions per week of individual PT services, all on a 12-month basis (Parent Ex. D). The pendency agreement also provided two 30-minute sessions per week of individual counseling services but did not indicate whether they were to be implemented on a 12-month basis (id. at p. 2).
[4] Both the student's SETSS provider and the student's LBA testified that they believed that during the 2024-25 school year the student also received speech-language therapy and counseling (Tr. pp. 58, 62-63, 73, 82).
[5] A corrected due process complaint was submitted on October 9, 2024 (see Corrected Due Process Compl. Not.).
[6] 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]).
[7] 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.
[8] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[9] The IHO's pendency order does diverge from the March 2021 unappealed IHO decision in some respects. For example, the March 2021 IHO decision did not award services on a 12-month basis, yet the pendency order reflects that the services would be provided for the extended 12-month school year (compare Parent Ex. C at pp. 3, 7, with IHO Ex. III). In addition, the March 2021 IHO decision expressly declined to award SEIT services, opting instead to "convert the mandate" to one for "1:1 services at the student's school by a duly-licensed special education teacher" (compare Parent Ex. C at pp. 4, 7, with IHO Ex. III). The district does not, however, challenge the IHO's pendency order on these grounds.
[10] The hearing record is not developed as to the providers or company delivering the private services found appropriate in the March 2021 unappealed IHO decision and the decision itself does not specify; however, the student's special education teacher indicated he worked with the student since first or second grade (Tr. p. 61) and the occupational therapist testified that she began providing the student with OT services in October 2020 (Tr. p. 106).
[11] 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 private providers (Educ. Law § 4404[1][c]).