Application of a Student with a Disability

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-321

Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education

Appearances:

Gulkowitz Berger, LLP, attorneys for the petitioner, by Shaya M. Berger, Esq.

Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund her daughter's paraprofessional services from Kids Domain Childcare Center (Kids Domain) for the 2024-25 school year.  The district cross-appeals the IHO's determination, asserting additional grounds for denying the parent's requested relief.  The appeal must be sustained in part.  The cross-appeal must be sustained in part.

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

When the student was in first grade, attending a nonpublic school at the parent's expense, a CSE convened on March 2, 2023, and developed an IESP for the student with a projected implementation date of March 16, 2023 (see Dist. Ex. 7 at pp. 1, 15).  Finding the student eligible for special education as a student with a speech or language impairment, the March 2023 CSE recommended the student receive three periods per week of special education teacher support services (SETSS) in a group, with related services consisting of two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), one 30-minute session per week of individual physical therapy (PT), and one 30-minute session per week of counseling in a group (id. at pp. 1, 12).^[1], [2]  The March 2023 CSE also recommended a daily behavioral paraprofessional in a group for 80 percent of the school day (id. at p. 13).

The hearing record includes a form, signed by a person identified as the student's "Parent/Guardian," which informs the district that, for the 2024-25 school year, the student would be attending a nonpublic school at the parent's expense and requesting that the district provide the student with special education services (see Parent Ex. B at p. 2).

On September 1, 2024, a person identified as parent of the student electronically signed a contract with Kids Domain for paraprofessional services for the student for the 10-month 2024-25 school year at a rate of $95 per hour (Parent Ex. C).^[3], [4]

The parties do not dispute that the district provided or funded the student's SETSS, speech-language therapy, OT, PT, and counseling services during the 2024-25 school year (see Tr. p. 10; Dist Exs. 8 at pp. 1-5; 10-11).^[5]  According to the director of Kids Domain, the agency started providing the contracted paraprofessional services to the student in "mid-December of 2024" (Tr. p. 13).

A. Due Process Complaint Notice

In a due process complaint notice dated December 17, 2024, the parent alleged that the district failed to provide the student a free appropriate public education or appropriate equitable services for the 2024-25 school year by failing to develop an appropriate educational program for the student and failing to implement the services set forth in the student's March 2023 IESP (Parent Ex. A at pp. 1-2).  The parent alleged that she had to arrange for private providers to deliver the student's services (id. at p. 1).  The parent requested a pendency hearing and argued that the March 2023 IESP formed the basis for the student's stay put placement (id. at p. 2, 3).  For relief, the parent requested that the district be required to fund the private services unilaterally obtained by the parent at the providers' rates (id. at p. 2).  Additionally, the parent requested compensatory education as appropriate based on the district's failure to provide services to the student (id.).

The district submitted a response to the due process complaint notice, dated January 15, 2025, in which the district generally denied the parent's allegations and stated its intention to pursue various defenses and challenge the relief sought by the parent (see Dist. Ex. 6).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on April 21, 2025 (see Tr. pp. 1-27).  In a decision dated April 22, 2025, the IHO found that the district failed to implement the paraprofessional services recommended in the March 2023 IESP during the 2024-25 school year (IHO Decision at p. 5).  Additionally, the IHO found no basis to dismiss the parent's claims based upon the district's asserted June 1 affirmative defense (id.).

Turning to relief, at the outset, the IHO declined to utilize a Burlington/Carter analysis (IHO Decision at pp. 3-5).  However, the IHO found that the parent's request for direct funding of the unilaterally obtained paraprofessional services was not supported by the evidence present in the hearing record, noting that the director of Kids Domain did not evaluate the student, provide services, or consult with the student's teachers; the paraprofessionals who delivered the services did not testify; there was no documentation about the services or evidence about the student's progress; and it remained unclear whether the paraprofessionals were "qualified or certified to meet the Student's behavioral needs" (id. at p. 6).  Accordingly, the IHO denied the parent's requested relief for the 2024-25 school year (id. at pp. 6-7).

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred in failing to issue an order on pendency, in finding that the parent's request for direct funding of the unilaterally obtained paraprofessional services was not supported by the evidence, and in denying the parent's requested relief.  The parent argues that the unilaterally obtained paraprofessional services were appropriate to address the student's behavioral needs and that equitable considerations weigh in favor of the parent's requested relief.  The parent argues in the alternative that, even if she did not prove that the unilaterally obtained paraprofessional services were appropriate, the IHO erred in failing to award compensatory education for the district's failure to provide the student with paraprofessional services for the 2024-25 school year.  The parent requests an award of pendency for all services set forth on the March 2023 IESP and funding for any services the district failed to provide under pendency.  Additionally, the parent requests direct funding to Kids Domain for 30 periods per week of paraprofessional services at a rate of $95 per hour or in the alternative a bank of 1,080 hours of compensatory paraprofessional services to be funded by the district.

In an answer with cross-appeal, the district argues that the IHO correctly denied pendency and found that the parent did not prove that the paraprofessional services delivered by Kids Domain were appropriate.  However, the district argues that the IHO erred by failing to utilize a Burlington/Carter analysis.  Further, the district asserts that, even if the parent met her burden to prove the appropriates of the unilaterally obtained paraprofessional services, equitable considerations do not favor an award because the parent failed to provide the district with a ten-day notice of her intention to unilaterally obtain private paraprofessional services, the parent's contract with Kids Domain was ambiguous, and the rate charged for the paraprofessional services was excessive.  The district asserts that the parent is not entitled to award of compensatory education because the parent did not "explicitly" make this argument at the hearing and is therefore precluded from raising the issue on appeal and, further, that the parent had engaged in self-help and, therefore, elected a remedy and could not seek compensatory education as an alternative at this juncture.  Finally, the district argues that the IHO should have denied the parent's due process complaint notice for a lack of subject-matter jurisdiction.^[6]

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).^[7]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).^[8]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. Preliminary Matters

1. Subject Matter Jurisdiction

Initially, it is necessary to address the district's contention in its cross-appeal that the IHO lacked subject matter jurisdiction over this matter.  Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-298; Application of a Student with a Disability, Appeal No. 25-293; Application of a Student with a Disability, Appeal No. 25-459; Application of a Student with a Disability, Appeal No. 25-242; Application of a Student with a Disability, Appeal No. 25-300; Application of a Student with a Disability, Appeal No. 25-127; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137[a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).^[9]

Concerning students who attend nonpublic schools, Education Law § 3602-c provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).^[10]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.^[11]

After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("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 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago.  In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.^[12]

In its answer and cross-appeal, the district contends that, under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services.  Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).^[13]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 Fed. App'x 461, 465 [2d Cir. Nov. 12, 2009]; quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id. at p. 7).^[14]  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that, within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.

Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO lacked subject matter jurisdiction to determine the merits of the parent's claims must be denied.

2. Pendency

Turning to the parties' dispute over pendency, as the district's jurisdictional argument is without merit, its related contention that the IHO lacked subject matter jurisdiction to order the district to maintain the student's pendency services is also without merit (see Educ. Law § 4404[4]; 8 NYCRR 200.5[m]; see, e.g., Application of a Student with a Disability, Appeal No. 25-035 [rejecting "the district's argument that the student [wa]s not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c"]; Application of a Student with a Disability, Appeal No. 24-579 [rejecting the district's argument "that the student was not entitled to pendency services because the IHO . . . lacked subject matter jurisdiction to order the district to maintain the student's pendency services"]).

The parent argues that the IHO erred by not awarding "[a]ll services recommended on the 2023 IESP" as 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]).^[15]  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).

Here, the parties do not dispute overall that the March 2023 IESP would have formed the basis for the student's pendency during the instant administrative proceedings, which, among other things, recommended group paraprofessional services for 80 percent of the day (Dist. Ex. 7 at p. 13).  However, the district argues that, when the parent acted unilaterally in arranging for private paraprofessional services, she rejected pendency.  Indeed, the parent made clear in her due process complaint notice that she made unilateral arrangements to obtain services for the student from private providers (see Parent Ex. A).  This consisted of full-time individual paraprofessional services from a private company, Kids Domain (see Parent Ex. C).  Thus, at this juncture it appears that it is the parent, not the district, that altered the status quo for purposes of stay-put.

The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35)  The Court described that:

[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis.  To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.

(id. at 534).

In short, the parent's decision to unilaterally obtain the private paraprofessional services constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]).  The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parents had not been found appropriate in any administrative proceeding.  Accordingly, the parent is not entitled to the ultimate relief sought in this matter as the student's pendency placement.

3. Legal Standard

The district contends that the IHO erred in failing to evaluate the parent's request for relief under a Burlington-Carter framework.

In this matter, the student has been parentally placed in a nonpublic school, and the parent did not seek tuition reimbursement from the district for the student's attendance.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Kids Domain 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]).^[16]  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).

Although use of the Burlington-Carter framework for a matter involving an IESP developed pursuant to State Education Law § 3602-c, rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district.  I also note that IHOs have not approached the question with consistency.  While the IHO may disagree with the use of the Burlington-Carter standard, I find the alternative approaches adopted by some IHOs insufficient to address the factual circumstances in these cases.

While acknowledging the distinctions and concerns identified by the IHO, the most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington-Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.

In this instance, although the IHO found that the Burlington/Carter framework did not apply, he nevertheless went on to assess the evidence presented by the parent regarding the unilaterally obtained services.  Accordingly, the IHO's legal analysis is not reversible error.  I now turn to examine the parent's requested relief using the Burlington/Carter standard.

B. Unilaterally Obtained Services

Here, the district does not appeal the IHO's finding that it failed to deliver the student's paraprofessional services for the 2024-25 school year or the IHO's finding that the June 1 affirmative defense raised by the district did not require dismissal of the parent's claims.^[17]  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.  A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see 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 at 364; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. Student Needs

Although not in dispute, a brief description of the student's needs is necessary to determine the issue presented; namely, whether the services provided by the unilaterally obtained paraprofessionals were appropriate to meet the student's needs.  For the period of time leading into the 2024-25 school year, the only description of the student's needs included in the hearing record is found in the March 2023 IESP (see Dist. Ex. 7).

According to the March 2023 IESP, testing completed in December 2022 indicated the student demonstrated at or above grade level expectations in "several areas of cognitive functioning" (Dist. Ex. 7 at pp. 1-2).  Further, her visual spatial processing skills were "well-developed," her receptive and expressive language skills were age-appropriate, and her quantitative reasoning was within the normal range (id.).  However, the IESP reported that the student demonstrated "significant weaknesses in attention and executive functioning" as well as poor word reading accuracy and fluency and difficulty with rapid naming and phonemic awareness (id.).

The March 2023 IESP included information from a teacher report that indicated the student had difficulty with completing math classwork but seemed to understand addition and subtraction (Dist. Ex. 7 at p. 2).  The teacher noted that the student could read accurately but did so at a slow pace due to distractibility and that she had difficulty writing her letters "neatly and correctly" (id.).  According to the teacher, the student learned best through visual presentation and repetition (id.).  The teacher reported that the student struggled to follow directions and required prompts from adults to complete assignments (id.).  The teacher also reported that the student "often touch[ed] the other students" and she was "not aware of her surroundings and [could] be disorganized" (id. at p. 4).

According to a speech-language report referenced in the March 2023 IESP, the student exhibited delays in the area of attention and the ability to complete a task without distraction in a timely manner (Dist. Ex. 7 at p. 3).  The speech-language pathologist reported that the student "had trouble following multistep directions that contain[ed] specific details for [each] step of the direction" and stated that the student presented with auditory listening delays (id.).  Further, the therapist noted that the student had difficulty comprehending figurative and literal language and making appropriate inferences with a paragraph or story (id.).  The speech-language report also indicated that the student's "significant weaknesses in [s]ocial pragmatic skills" affected her ability to use appropriate voice intensity and recognize body awareness with proximity to others (id.).

In terms of physical development, the March 2023 IESP summarized an OT report, which indicated that the student demonstrated difficulty attending to and completing a task and filtering out auditory and visual distractions (Dist. Ex. 7 at p. 5).  The therapist reported that the student had difficulty with writing mechanics, specifically writing letters of appropriate size and height and maintaining a "functional sitting position" when writing (id.).  The therapist also reported that the student had difficulty coloring within boundaries and applying appropriate pressure (id.).  In the area of sensory processing, the therapist indicated that the student needed to develop more age-appropriate processing, stating the student was unaware when she needed to blow her nose or when her face was dirty as examples (id.).  The IESP also included information from a PT report that the student continued to exhibit weakness of her trunk and lower extremity muscles and deficits in balance and coordination but had shown improvement (id.).  Also, the physical therapist reported that the student had shown greater control during line-walking activities, while moving both forward and backward (id.).  According to the parent, the student had a weak core, fell frequently, and was unable to ride a bike due to difficulty with the pedals (id. at p. 6).  The parent reported that the student was generally in good health, had tubes in her ears, and had been on medication for approximately a month "to treat ADHD and [was] being treated by a psychiatrist" (id.).  The parent also indicated that the student did not wear glasses and her hearing appeared to be within normal limits (id.).

Socially, the March 2023 IESP indicated that the student demonstrated some immaturity in her social skills but that her ability to "understand how other people think and feel" was within normal limits (Dist. Ex. 7 at p. 4).  However, because of inattention and impulsivity, the student sometimes failed to attend to social cues and distractibility interfered with her ability to maintain age-appropriate conversation and play (id.).  According to a counseling report referenced in the IESP, the student had improved her ability to express her needs verbally when feeling distressed and had learned to better assert herself (id.).  However, the counselor indicated that the student was unable to remain on task during unstructured time or to initiate and maintain social interactions with peers (id.).  The student reportedly needed to "develop age-appropriate skills in transitioning from activities and us[e] appropriate eye contact in face to face situations" (id.).  The parent reported that the student enjoyed pretend play, art, and making up games for herself and her peers to play (id.).

In terms of the effect of the student's needs on involvement and progress in the general education curriculum, the March 2023 IESP noted that the student presented with attention span and auditory listening deficits as well as sensory seeking behaviors and a weak core and balance immaturity (Dist. Ex. 7 at p. 6).  She had difficulty staying on task and completing assignments, which impacted her ability to understand and apply new concepts taught in the classroom setting (id.).  The IESP indicated that the student benefited from extra support related to executive functioning in the classroom including limiting distractions, re-engaging her attention with prompts, visual cues, reminders, and breaking down tasks into smaller steps (id.).  Management needs listed in the March 2023 to support the student included structured routines, repetition, tasks broken down, scaffolding of information, movement breaks, focusing prompts, preferential seating, redirection, graphic organizers, positive reinforcement, and verbal praise (id.).  In addition to the student's recommended services of SETSS, counseling, OT, PT and speech-language therapy, the March 2023 IESP recommended support of a part-time (80 percent) group behavior paraprofessional to address the student's behavioral concerns (id. at p. 13).

2. Paraprofessional Services from Kids Domain

As noted above, for the 2024-25 school year, the district provided or funded the student's SETSS, speech-language therapy, OT, PT, and counseling services (see Tr. p. 10; Dist Exs. 8 at pp. 1-5; 10-11).  With respect to the unilaterally obtained paraprofessional services, relevant evidence in the hearing record appears in the testimony of the Kids Domain director (see Tr. pp. 11-19; Parent Ex. D).  Taking into account the totality of the circumstances, additional information about the student's programming overall, found in an IESP developed on March 6, 2025, is also informative (see Dist. Ex. 8).

In her affidavit testimony, the director stated that Kids Domain provided various special education services to students and that she had served as director since 2016 (Parent Ex. D ¶¶ 1-2).  She indicated that the student was provided paraprofessional services by two individuals, who she identified by name, and that, generally, before working with a student, providers reviewed a student's IESP to "gain a better understanding of the student's abilities, needs and deficits" (id. ¶¶ 4, 6).  She stated that Kids Domain provided 30 hours per week of paraprofessional services to the student during the 2024-25 school year and that the services began sometime in mid-December 2024 (Tr. p. 13; Parent Ex. D ¶ 7).^[18]  She indicated that the services were provided in the student's classroom, as well during lunch, recess, and transitions (Tr. p. 17).

The director testified that, according to the paraprofessionals, the student's "ADHD diagnosis . . . necessitate[d] extensive support throughout her daily activities and routines" and the student struggled with hyperactivity and focus (Parent Ex. D ¶ 8).^[19]  According to the director, the paraprofessionals shared that the student exhibited oppositional behaviors, including disregarding instructions and leaving the classroom without permission (id.).  The student needed assistance when going to and from the bathroom as there was a risk of her not returning to the classroom (id.).  In describing the role of the paraprofessionals, the director indicated that they guided the student through tasks such as retrieving and organizing her belongings, ensuring she was on the correct page, and "writing down answers" (id.).  The student benefited from "clear step-by-step auditory instructions," which she needed to be repeated multiple times in order to complete a task (id.).  The paraprofessionals assisted the student with reminders of the steps necessary to ensure assignments were completed properly and on time (id.).  The student required "frequent prompts" to manage her personal belongings, which was said to help reduce confusion and allowed the student to stay organized throughout the day (id.).  The director also indicated that the student required assistance during transitions such as going to or from recess and the bathroom as she could become distracted and the paraprofessionals offered "gentle redirection and support" to assist her to the location (id.).  The director indicated that the student needed "ongoing reminders and guidance to understand expectations and appropriate behavior" during peer interactions (id.).  She also required consistent support of verbal cues on initiation and maintenance of conversations, and reinforcement of positive social behaviors which assisted her to understand social cues and navigate peer relationships (id.).

Initially, to the extent the IHO cited the lack of information about the paraprofessionals' credentials, I note that it is well-settled that a parent unilaterally placing their child need not engage the services of a certified special education teacher—or, as here, a certified paraprofessional—in order to qualify for reimbursement or direct funding of those services (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]).  Moreover, depending on the role of the paraprofessional, there may not have been a particular credential required even under State standards.  State regulations no longer define the term "paraprofessional," as the term "paraprofessional" was replaced with the term "supplementary school personnel" (see NY Reg., June 25, 2014, at pp. 85-86).  Supplementary school personnel "means a teacher aide or a teaching assistant" (8 NYCRR 200.1[hh]).  State certification requirements for teaching assistants initially require, depending on different circumstances, the attainment of a high school diploma and satisfactory performance on a certification examination, with more education/experience required for additional professional certification (8 NYCRR 80-5.6[c][2]).  A teacher aide, however, does not require certification to perform non-instructional duties (see 8 NYCRR 80.5.6[b]).

With respect to the IHO's concerns about the sufficiency of the evidence, both the parent and the district agree that the student required paraprofessional to address her behavior and attention concerns within the classroom (see Dist. Exs. 7 at pp. 4, 14; 8 at pp. 3, 16).  While the director did not work directly with the student, she was able to describe approximately when services began, how many sessions of paraprofessional services the agency had delivered, and the interventions used by the paraprofessionals to assist the student, and indicated that she was the liaison between the parent and providers as well as between the providers and the nonpublic school (Tr. pp. 12-13).  Moreover, with respect to documentation, there is no indication in the hearing record that a paraprofessional—unlike a teacher or related service provider—would document services through progress reports or sessions notes.^[20]

Indeed, a paraprofessional would not be independently tasked with delivering specially designed instruction to a student and instead would provide support to a student under the supervision of or to assist a certified teacher.  Such a role is described in State regulations and guidance.  A teaching assistant may provide "direct instructional services to students" while under the supervision of a certified teacher (8 NYCRR 80-5.6 [b], [c]; see Educ. Law § 3009[2][b]; see also 34 CFR 200.58 [a][2][i] [defining paraprofessional as "an individual who provides instructional support"]).  A "teacher aide" is defined as an individual assigned to "assist teachers" in nonteaching duties, including but not limited to "supervising students and performing such other services as support teaching duties when such services are determined and supervised by [the] teacher" (8 NYCRR 80-5.6 [b]; see Educ. Law § 3009[2][a]).  State guidance further indicates that a teacher aide may perform duties such as assisting students with behavioral/management needs ("Continuum of Special Education Services for School-Age Students with Disabilities," at p. 23, Office of Special Educ. [updated Nov. 2013], available athttps://www.nysed.gov/sites/default/files/programs/special-education/continuum-of-special-education-services-for-school-age-students-with-disabilities.pdf).

Thus, in addition to the testimony of the Kids Domain director, the appropriateness of the paraprofessional services are demonstrated by examining the benefit the student was able to receive from her general education classroom in the nonpublic school, as well from the SETSS and related services provided or funded by the district, which the CSE documented in the March 2025 IESP (see Dist. Ex. 8).  The March 2025 IESP indicated that the CSE reviewed the following: January 2025 progress reports from the student's counselor, occupational therapist and speech-language pathologist, February 2025 progress reports from the nonpublic school teacher, SETSS provider, and physical therapist, and an undated third grade report card from the nonpublic school (see id. at p. 1; see also Dist. Exs. 10; 11).^[21]

The March 2025 IEP makes reference to the fact that, during OT sessions, the student benefited from the redirection provided by the paraprofessional (Dist. Ex. 8 at p. 4).  In addition, more generally, the March 2025 IESP reflected the student's continued challenges, as well as her progress across various areas (see Dist. Ex. 8 at pp. 2-4).  The IESP indicated that the student struggled with class demands, requiring adult facilitation and simplified instructions, and showed significant difficulty in math, though some improvement in reading comprehension and writing was noted (id. at p. 2).  The IESP included reports from the student's teachers and providers that the student benefited from prompts and redirection to stay focused (id. at pp. 2-4).  As reported in the IESP, the student's SETSS provider shared that the student demonstrated understanding of foundational math concepts but struggled with fluency, recall and sustained attention (id. at p. 2).  According to the 2025 speech-language report, as summarized in the March 2025 IESP, the student had made "notable progress in auditory listening and expressive/receptive language skills" but continued to demonstrate difficulties with "attention span, voice modulation and social pragmatics that impact her academic performance and social functioning" (id.).  In counseling, the provider reported that the student showed progress in social interactions, though distractibility remained a concern (id. at p. 4).  The OT report noted improvements in handwriting and task completion with support, while the PT report highlighted progress in physical skills but raised concerns about endurance (id. at pp. 4-5).

During the March 2025 CSE meeting, the committee discussed phasing out the paraprofessional services as of the end of the 2024-25 school year (see Dist. Ex. 8 at pp. 3, 16).  The parent expressed concerns about removing the behavior paraprofessional, sharing her view that the student benefited from someone providing individual support and redirection (id. at p. 3).

Based on the foregoing, including the unrebutted testimony of the Kids Domain director, the type of service at issue, and the evidence of the student's progress during the 2024-25 school year, I find that the totality of the circumstances supports a finding that the parent met her burden to prove that the unilaterally obtained paraprofessional services were appropriate.

C. Equitable Considerations

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Initially, the district argues that the parent's failure to provide 10-day notice to the district of their intent to unilaterally obtain paraprofessional services should preclude an award of funding therefore.  Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger, 348 F.3d at 523-24; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

Here, the district correctly notes that the hearing record does not include evidence that the parent provided the district with 10-day written notice stating the parent's intent to unilaterally obtain private services.  However, the district made no argument during the impartial hearing regarding the lack of 10-day notice (see Tr. pp. 19-21; Dist. Ex. 5).  Given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record on this point, it would be imprudent at this juncture to reduce the award of district funding for the unilaterally-obtained services based solely on the absence of a 10-day notice.

Next, the district argues that the parent's contract with Kids Domain is ambiguous and that, therefore, the parent did not establish that she carried a financial obligation to pay for the services.  Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seeking funding based on "nothing more than their say-so" (Moonsammy v. Banks, 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]).  The Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that, in the case before it, "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement," and that, therefore, it could not be said that "the contract, read as a whole, [wa]s so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]).  In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).

Principally, the district argues that the parent's first name on the contract appears differently than other instances in the hearing record.  The parent's last name is consistent in the hearing record; however, the first name for the parent that appears on the June 1 letter and the contract with Kids Domain is different than the first name appearing on the due process complaint notice and appeal documents in this matter (compare Parent Exs. B-C, with Parent Ex. A at p. 1, and Req. for Rev.).  During the impartial hearing, the parent's representative indicated that the contract was signed by the student's other parent who had not been named in the due process complaint notice (see Tr. p. 23).  In this instance, given that the student's name is identified in the contract and the last name is consistent, the hearing record is not sufficiently developed to conclude that an individual who was not the student's parent signed the contract (see Parent Ex. C).^[22]  The district also claims that the contract failed to identify the frequency of paraprofessional services; however, the intent of the parties was sufficiently clear by the terms of the agreement and, in any event, the missing term is objectively discoverable via the evidence about the delivery of the service for approximately 30 hours per week (Parent Exs. C; D ¶ 7).

The final equitable consideration raised by the district gains more traction.  That is, the district argues that the rate charged by Kids Domain for the paraprofessional services was excessive.  Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.

Here, the parent entered into an agreement with Kids Domain by which the agency would provide the student with paraprofessional services for the 2024-25 school year at a rate of $95 per hour (Parent Ex. C).  The director of Kids Domain testified that the student's provider received $40 per hour (Tr. pp. 17-18).

On the question of reasonable market rates, during the impartial hearing, the district submitted an October 2023 report by the American Institutes for Research (AIR report), an undated document titled "Related Services – Independent Provider Rate Schedule," and May 2023 data from the United States Bureau of Labor Statistics (USBLS) (see Dist. Exs. 1-3).  With respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report and USBLS data and the district's arguments on appeal offer some basis to conclude that the rates charged by Kids Domain for paraprofessional services was excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Kids Domain.^[23]

First, the AIR report draws data published by the USBLS, a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 [N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education providers are paid in the New York City metropolitan region in a given year in which the data is published.^[24]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers and providers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2024 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available athttps://www.bls.gov/oes/current/ oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

The AIR report appears to develop "an approach to using data from the [USBLS] to calculate hourly rates for independently contracted providers" (Dist. Ex. 1 at p. 4).  If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.

However, a parent facing the failure of the district to deliver his or her child's IESP services and who is left searching for a unilaterally selected self-help remedy would be unable to hire teachers or providers already employed by the district (unless a teacher or provider is "moonlighting" and thus dually employed), and the parent facing that situation would therefore not be able to negotiate for private services with the same bargaining power that the district holds.  Thus, while the AIR report's reliance on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose⸺they are designed to ensure fair treatment among union members who are operating in public employment.  But the fair treatment among district employees is of little or no interest to a parent who is trying to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees, and thus the district negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.

Fortunately, the USBLS data is not limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers and providers from across the spectrum including private schools, charter schools, and district special teachers.  The USBLS indicated that in May 2024 data annual salaries for "Teaching Assistants, Except Postsecondary" ranged from $31,200 in the 10th percentile, $33,520 in the 25th percentile, $37,070 in the median, $45,070 in the 75th percentile, to $49,230 in the 90th percentile.^[25]

In my view, consideration of a range of wages is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC) – June 2023, available athttps://www.bls.gov/news.release/archives/ecec_09122023.pdf).^[26]

The undersigned has little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.  I will take this into account when ordering equitable relief.^[27]

Here, Kids Domain charged $95 per hour, with $40 being paid to the student's specific providers (see Tr. pp. 17-18; Parent Ex. C).  A rate of $40 per hour annualized is approximately $46,800, a figure falling between the 75th and 90th percentiles.  Thus, the $40 per hour portion of the rate is not excessive.  However, the amount of indirect costs above the provider's hourly wage is $55 per hour or 58 percent of the $95 (see Tr. pp. 17-18; Parent Ex. C).  This falls far above the 27.7 percent identified in the USBLS data.

 Considering that the Kids Domain director only identified general categories of indirect costs that factored into the hourly rate charged (i.e., training, computer system, rent, insurances, utilities) without providing the actual overhead costs applied to the rate charged for the student or explaining why such expenses would justify the amount of indirect costs included in the hourly rate charged (see Parent Ex. D ¶ 10), the evidence in the hearing record leads me to the conclusion that the parents arranged for paraprofessional services from Kids Domain at an excessive cost, as the district argues, and that it is more than what the district should be required to pay.  On the other hand, some indirect or overhead cost is reasonable.  Calculating for overhead costs equating to 27.7 percent of the overall rate, and the provider's wage as a known factor, the total rate computes to $55 per hour.  Accordingly, the district will be ordered to fund the student's paraprofessional services for the 10-month 2024-25 school year, at a rate of $55, subject to the parent providing the district with proof of delivery of the student's services and invoices from Kids Domain.

VII. Conclusion

Based on the foregoing, the IHO had subject matter jurisdiction to hear this matter, the student is not entitled to an award based on pendency, the evidence in the hearing record supports the conclusion that the paraprofessional services delivered by Kids Domain to the student for the 2024-25 school year were appropriate, and equitable considerations support a partial award of funding for the costs of those services.

I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated April 22, 2025, is modified by reversing that portion which found that the evidence did not support a finding that the paraprofessional services delivered by Kids Domain were appropriate to meet the student's needs; and

IT IS FURTHER ORDERED that the district shall directly fund/reimburse the costs of the student's paraprofessional services delivered by Kids Domain during the 2024-25 school year at a rate to not exceed $55 per hour upon presentation of proof of delivery.

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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] SETSS are not defined in the State continuum of special education services (see 8 NYCRR 200.6).  As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.

[3] Kids Domain 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).

[4] The person who signed the form requesting services from the district and the contract with Kids Domain is not the parent who is named in the due process complaint notice and in this appeal (compare Parent Exs. B-C, with Parent Ex. A at p. 1, and Req. for Rev.).

[5] The service start date on the January 2025 speech-language therapy and counseling progress reports (September 2013) is an apparent typographical error (see Dist. Exs. 10 at p. 1; 11 at p. 1).  The reports as a whole indicate that the services were being provided during the 2024-25 school year when the student was in the third grade (Dist. Exs. 10; 11).

[6] The district also argues that the parent's appeal should be rejected for failing to comply with the practice regulations.  I have reviewed the pleading, and I decline to reject the parent's request for review on the grounds stated by the district.

[7] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).

[8] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students).  The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.).  The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.

[9] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).

[10] In 2004, the State Legislature amended subdivision two of the Education Law § 3602-c, effective June 1, 2005 (see L. 2004, ch. 474 § 2 [Sept. 21, 2004]).  Prior to such date, the subdivision read, in part, as follows:

Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.  Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section.  The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.

(L. 1990, ch. 53 § 49 [June 6, 1990] [emphasis added]).  The amendments that took effect on June 1, 2005, removed the last sentence of subdivision two relating to the review of a board of education's failure or refusal to provide equitable services by the Commissioner (L. 2004, ch. 474 § 2).  A review of the statute's history and the New York State Assembly Memorandum in Support of Legislation shows that the Legislature intended to remove the language that an appeal to the Commissioner of Education under Education Law § 310 was the exclusive vehicle for review of the refusal or failure of a board of education to provide services in accordance with Education Law § 3602-c, as the earlier sentence in subdivision two of such section authorized review by an SRO from a district CSE's determination in accordance with Education Law § 4404 (Sponsor's Memo., Bill Jacket, L. 2004, ch. 474).  The Memorandum further explained:

The language providing for review of a school district's failure or refusal to provide services ONLY in an appeal to the Commissioner of Education under Education Law § 310 is unnecessary, confusing and in conflict with the earlier language authorizing review by a State review officer pursuant to § 4404(2) of the Education Law of a committee on special education's determination on review of a request for services by the parent of a nonpublic school student.  At the time it was enacted, the Commissioner of Education conducted State-level review of an impartial hearing officer's decision under § 4404(2) of the Education Law in an appeal brought under § 310 of the Education Law, but that is no longer the case.  The Commissioner has jurisdiction under Education Law § 310 to review the actions or omissions of school district officials generally, so it is unnecessary to provide for such review in § 3602-c and, now that a State review officer conducts reviews under section 4404 (2), it is misleading to have the statute assert that an appeal to the Commissioner is the exclusive remedy.

(Sponsor's Memo., Bill Jacket, L. 2004, ch. 474).  Thus, the legislative amendments were intended to clarify the forum where disputes could be brought, not to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404.

[11] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1.  For example:

Questions and Answers

1. What does "dual enrollment" mean?

Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.

("Dual Enrollment Programs," available athttps://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).

[12] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf).  Ultimately, however, the proposed regulation was not adopted.  In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however, enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.

[13] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom.  There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs, resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).  The guidance document is no longer available on the State's website; however, it has been added to the administrative hearing record.

[14] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.

[15] 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).

[16] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case was the unilaterally obtained paraprofessional services (Educ. Law § 4404[1][c]).

[17] Although the IHO did not say specifically, given that he went on to consider the parent's relief, it appears that he found the district's failure to deliver paraprofessional services amounted to a denial of a FAPE or a denial of equitable services for the 2024-25 school (see generally IHO Decision). As the district has not argued that the decision is ambiguous or otherwise challenged the IHO's decision in this regard, I will not further discuss the issue.

[18] The director testified that the provider's qualifications were being submitted as exhibits in the impartial hearing, but they are not included in the hearing record (Parent Ex. D ¶ 5).

[19] The IHO found the evidence insufficient, in part, because the director did not deliver services to the student and the paraprofessionals did not testify (IHO Decision at p. 6).  However, the director did relay information from the paraprofessionals, and the district did not object to this testimony (see Parent Ex. D).

[20] The director testified that providers inputted their start and end times for services delivered in a database for purposes of invoicing (see Tr. p. 15); however, there is no evidence that the paraprofessionals completed progress reports or session notes.

[21] The hearing record includes the January 2025 speech-language and counseling progress reports but not the other reports relied upon by the March 2025 CSE (see Dist. Ex. 10-11).

[22] In its answer and cross-appeal, the district alludes to district "records" that identify the parent by yet a third name; however, the district did not offer such "records" for consideration either by the IHO or on appeal.

[23] It appears that the "Rate Schedule" offered by the district lists rates that the district pays to independent providers (see Dist. Ex. 2); however, there is no indication that a parent could access such rates when obtaining services from private companies on the private market.  Accordingly, I do not find this evidence persuasive.

[24] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year.  The AIR report in evidence used May 2022 data and the district submitted May 2023 data (Dist. Exs. 1; 3), both of which preceded the 2024-25 school year at issue in this proceeding and would be relevant thereto (seehttps://www.bls.gov/oes/tables.htm).  However, I note that May 2024 data is the most relevant annual data published by the USBLS to the 2024-25 school year at issue in this matter.  While the AIR report presented a snapshot in time, the USBLS data is updated annually, which is particularly relevant when considering due process claims under IDEA and Article 89 are almost always related to a specific annual time period.

[25] The teaching assistant wage data for New York City is located in the same USBLS Excel data file as described above for special education teacher wage data (see, e.g., https://www.bls.gov/oes/special-requests/oesm24ma.zip).

[26] The ECEC covers the civilian economy, which includes data from both private industry and state and local government.  One could make an argument that a company like Kids Domain should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation.

[27] Using 6.5 hours per day results in approximately 1170 hours of instruction time for students during a school year, and similar to teachers, paraprofessional services are typically provided to students on a similar schedule during the school day.