STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-336
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's privately obtained speech-language therapy services for the 2023-24 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail. Briefly, a CSE convened on May 30, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 1, 2023 (Parent Ex. C at pp. 1, 7, 10).[1] The CSE recommended the student receive two 30-minute sessions per week of group speech-language therapy (id. at p. 7). The IESP reflects that, at that time, the student was in pre-kindergarten transitioning to kindergarten and was parentally placed in a nonpublic school (id. at pp. 1, 10).
The parent signed a contract with an individual to provide speech-language therapy to the student during the 2023-24 school year at a specified rate of $250 per hour (Parent Ex. D).
The contract did not indicate the number of sessions the provider intended to provide the student per week (Parent Ex. D). According to the provider's affidavit, during the 2023-24 school year she provided the student with two 30-minute sessions per week of speech-language therapy at the student's nonpublic school (Parent Ex. G ¶¶ 6, 8).
A. Amended Due Process Complaint Notice
In an amended due process complaint notice dated July 30, 2024, the parent alleged the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to implement the May 2023 IESP (Parent Ex. A at p. 2).[2] The parent alleged that she was unable to locate "SETSS providers" for the 2023-24 school year, that the district failed to implement its recommendations and that without the supports, "the parental mainstream placement [wa]s untenable"(id.). As relief the parent requested that the district fund the providers located by the parent for the 2023-24 school year at the provider's contracted for rate and provide compensatory education for services not provided to the student during the entire 2023-24 school year at the "prospective" provider's contract for rate (id. at p. 3).
In a response to the due process complaint notice, the district denied the material allegations contained in the due process complaint notice and raised several defenses (IHO Ex. I at pp. 1-2). The affirmative defenses raised in the district's response included, in relevant part, that the parent failed to send the district a written request for dual enrollment services by June 1, 2023 for the 2023-24 school year (id. at p. 1).
B. Impartial Hearing Officer Decision
A prehearing conference convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 27, 2024, and an impartial hearing convened on December 4, 2024 and concluded the same day (Sept. 27, 2024 Tr. pp. 1-15; Dec. 4, 2024 Tr. pp. 1-24).[3], [4]
In a decision dated April 29, 2025, the IHO found that the district properly raised a June 1 defense in its due process response and at the prehearing conference; that the creation of the May 30, 2023 IESP did not waive the June 1 notice requirement; and that the parent failed to submit the required notice for equitable services by June 1, 2023 (IHO Decision at pp. 4-5). Accordingly, the IHO dismissed the parent's due process complaint notice with prejudice (id. at p. 5).
IV. Appeal for State-Level Review
The parent appeals. The parties' familiarity with the issues raised in the parent's request for review and the district's answer is presumed and, therefore, the allegations and arguments will not be recited here in detail. Briefly, the parties dispute the following issues: whether the IHO erred in finding the district properly raised its June 1 defense; whether the IHO erred in finding the creation of the June 2023 IESP was not a waiver of the June 1 requirement; and whether the IHO erred in determining that the student was not entitled to equitable services for the 2023-24 school year based on the parent's failure to request equitable services by June 1, 2023. The parent also claims that the unilaterally obtained speech-language therapy was appropriate and the rate of $250 per hour was not excessive.
The district submits an answer to the parent's request for review asserting that the IHO correctly found that the parent failed to submit a request for equitable services by June 1, 2023.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[5] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[6] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. June 1 Deadline
The IHO determined that the student was not entitled to equitable services for the 2023-24 school year based on the parent's failure to request equitable services by June 1, 2023.
The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
The parent argues that the district did not properly raise a June 1 affirmative defense during the impartial hearing and did not actively pursue the defense. The district contends that once it raised the June 1 affirmative defense, it became "incumbent upon the parent[] to provide evidence refuting the affirmative defense" and that it was not required to produce any evidence to establish that the notice was not received (Answer ¶ 4).
Consistent with the IHO's findings, the district properly raised a June 1 affirmative defense (see IHO Decision at p. 4). Here, the district raised the affirmative defense in its due process response and during the September 27, 2024 prehearing conference, thus sufficiently putting the parent on notice that she should have been prepared to timely disclose and offer evidence at the impartial hearing to prove she did, in fact, request equitable services prior to June 1, 2023 (see Due Proc. Response; Sept. 27, 2024 Tr. pp. 10-11). Contrary to the parent's assertion that the district did not maintain its defense during the impartial hearing, there is no requirement that the district must reassert the affirmative defense once it is raised during the proceedings. The IHO noted that during closing statements the parent argued that even if there was no evidence of the June 1 requirement being satisfied, the district carried the burden of proving its defense and waived the defense by creating the May 2023 IESP, thus "agreeing that it was still a live issue." (IHO Decision at p. 4; see Dec. 4, 2024 Tr. pp. 16-17). Accordingly, the IHO correctly determined that the June 1 defense was adequately raised.
Further, contrary to the parent's argument that the IHO improperly shifted the burden to her to provide documentary evidence of her compliance with the June 1 notice requirement, the IHO correctly noted that once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (IHO Decision at p. 4; see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]). Thus the parent's argument that the IHO improperly shifted the burden of proof to her is unfounded.
The parent contends that the district waived the June 1 requirement by developing an IESP for the student on May 30, 2023, two days prior to the June 1, 2023 deadline. The district argues that the development of an IESP alone does not constitute a clear and unmistakable waiver of the June 1 requirement.
A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088). The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing services special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[7] However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).
A "clear and unmistakable waiver" of the statutory requirement of a parent request for services before June 1 has been found to exist where the CSE decided to create an IESP for the student after the deadline and then began providing services at the student's nonpublic school (see Application of the Board of Education, Appeal No. 18-088).
Although the IHO found that the district's creation of the student's IESP in May 2023 IESP was not a waiver of the June 1 deadline for the 2023-24 school year, there are other factors at issue (see IHO Decision at p. 4).[8]
For one, the May 2023 IESP was developed with an implementation date of September 1, 2023 (Parent Ex. C at p. 1).[9] Review of the IESP also shows that the student was a preschool student at the time of the May 2023 CSE meeting, as the IESP noted the student was "transitioning to [k]indergarten CSE for September" (id.). Accordingly, the student would have first been eligible for equitable services through an IESP as a school aged student beginning in September 2023.
State guidance explains that section 3602-c "pertains only to parental placements in nonpublic elementary and secondary schools. It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary grade classrooms. These students would continue to be the responsibility of the district of residence through the CSE" ("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 at p. 13, VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students).
Without information leading up to how or why the May 2023 CSE meeting was scheduled, it can only be inferred that the district was aware the parent wanted special education for the student at the student's nonpublic school for the 2023-24 school year. The district could have provided such an explanation, as the district was required to provide the parent with notice of the meeting, including the purpose of the meeting (8 NYCRR 200.5[c][2][i]).
Under these circumstances, the IHO's conclusion regarding the lack of a parental request for equitable services must be reversed as the district developed the May 2023 IESP for the student for implementation commencing during the 2023-24 school year, the first year the student was eligible for equitable services through an IESP and the district has not presented a sufficient alternative explanation for development of an IESP for the 2023-24 school year other than a parental request.
B. Unilaterally-Obtained Services
Turning to the unilaterally obtained speech-language therapy services, in this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to offer or provide the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino, 959 F.3d at 526 [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
Despite the IHO's finding that the parent was "simply seeking the implementation of the recommended services" in the May 2023 IESP, and that it would be inappropriate to place the burden on a parent to show the appropriateness of the providers she selected when district had failed to offer any alternate providers, the parent's request for district funding of privately-obtained services must be assessed under this framework (see IHO Decision at p. 3).[10] Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[11] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
Initially, in order to address the appropriateness of the parent's unilaterally obtained services, it is first necessary to review the evidence regarding the student's needs, which are relevant to determining if the unilaterally obtained services provided the student with specially designed instruction reasonably calculated to enable the student to receive an educational benefit.
The May 2023 IESP's present levels of performance included reporting from the student's classroom teacher, and a May 2022 psychological evaluation report, that the student was able to identify simple objects but was "not yet able" to label higher level words and that he had difficulty labeling simple objects suggestive of word retrieval difficulty (Parent Ex. C at pp. 1-2). It was found that the student was able to make associations but had difficulty formulating a cohesive sentence which suggested that the student's understanding of practical knowledge and his ability to verbalize meaningful concepts was not adequately developed (id.). Also, the student's overall conversational skills and responses to open-ended questions were "immature and underdeveloped" (id. at p. 1). The IESP stated the student did not demonstrate an understanding of possessives, was unable to define words, was inconsistent when asked to describe the scenes in pictures, had difficulty retelling details of the story, and was unable to identify basic emotions in pictures (id. at pp. 1-2). According to the results of the May 2022 psychological evaluation, the student scored below average in the areas of retaining and retrieving general factual knowledge and had difficulty answering questions about "general principles and social situations" suggesting that his understanding of practical knowledge and his ability to verbalize meaningful concepts was delayed (id. at p. 2).
In terms of academic performance, the May 2023 IESP indicated that the student's quantitative concepts were age-appropriate, he could count to ten and count ten items using one to one correspondence, recognized number symbols, and could identify colors and shapes (Parent Ex. C at p. 2). The IESP identified that the student could not match number symbols to quantities and did not understand the "zero concept" (id.).
The May 2023 IESP included reporting from a May 2022 speech evaluation which stated the student presented with delayed receptive and expressive language skills (Parent Ex. C at p. 3). Receptively the student had difficulty with auditory directives, syntax (grammar), critical thinking, and linguistic concepts and expressively the student presented with difficulty with vocabulary, "wh" questions, and "syntax" (id.). The IESP also noted that articulation errors and "use of phonological processes" reduced the student's speech intelligibility during single word productions and connected speech (id.). In addition, oral motor skills were reduced by "decreased jaw, labial and/or lingual strength and/or coordination; feeding development was reduced by immature chewing, cup drinking, and tongue extension while swallowing; and speech intelligibility was further reduced by increased nasal resonance (id.).
In the area of social development, the May 2023 IESP stated that the student could engage in elaborate pretend play sessions, share toys and possessions, and follow the rules of a game; attended "nicely" to the lesson and participated in discussions; and sought attention from his peers in a positive manner (Parent Ex. C at p. 3). Further, the IESP stated that the student was not consistently understood by his peers as he presented with poor articulation and that his language delays impair the development of adequate peer relationships and social interactions (id.).Turning now to the privately obtained speech-language therapy, a review of the private speech-language pathologist's affidavit testimony and progress report supports a conclusion that the unilaterally obtained speech-language therapy provided to the student during the 2023-24 school year was appropriate.
The student's private speech-language pathologist described him as a Yiddish speaking six-year-old male who presented with a mild receptive language disorder and a moderate expressive language disorder (Parent Ex. F at p. 1). The speech-language pathologist testified that the speech-language progress report was an accurate representation of what the student worked on, including how the speech-language services were addressing the student's specific delays, during the 2023-24 school year (Parent Ex. G ¶ 7).[12] The speech-language pathologist also testified that the goals indicated in the speech-language progress report were being worked on over the course of the 2023-24 school year (id.).
A review of the speech-language progress report reveals similar student needs as identified within the May 2023 IESP's present levels of performance (compare Parent Ex. F, with Parent Ex. C at pp. 1-3).
As part of her affidavit testimony, the student's private speech-language pathologist indicated that for the 2023-24 school year, the student received his services which included two 30-minute sessions per week of speech-language therapy in his "mainstream school" (Parent Ex. G ¶¶ 6, 8; see Dec. 4, 2024 Tr. p. 12). The speech-language pathologist testified that the student's speech-language therapy sessions were individual sessions (Dec. 4, 2024 Tr. p. 12). When referred to the May 2023 IESP recommendation for group services, the speech-language pathologist testified that group services could consist of one student (Dec. 4, 2024 Tr. pp. 12-13). According to the speech-language pathologist's affidavit testimony, the student's "progress [wa]s measured through quarterly assessments and consistent meetings with teachers and school staff" (Parent Ex. G ¶ 9).
The speech-language progress report noted the student was working on long term goals which focused on his ability to improve his receptive language, expressive language, and articulation skills; and to increase his oral motor strength and awareness (Parent Ex. F at p. 1). On cross-examination, the private speech-language pathologist testified that the student's annual goals were obtained from "[h]is "IEP," and also from assessing and reassessing him to see "exactly what goals made sense in order to help him at that stage" (Dec. 4, 2024 Tr. p. 13). According to the speech-language progress report, short-term objectives targeted the student's ability to follow four-step directions involving prepositional phrases; to answer simple "wh" questions based on age appropriate stories and pictures; to provide eight-to-ten "category members" per category; to retell six-step sequences; to produce final consonants in words; to produce lingual alveolar phonemes in the initial position of words; and to perform mandibular, lingual and labial resistance exercises (Parent Ex. F at p. 1).
According to the report, the student's private speech-language therapy services commenced on September 7, 2023 (Parent Ex. F at p. 1). The speech-language pathologist noted that the student, "ha[d] made significant progress since the beginning of the year" and could then-currently label common objects belonging to a single category with moderate clinician modeling (id. at p. 2). With regard to focusing, the student's behavior was reported as being "inconsistent and therefore imped[ing] upon his progress" (id.). The progress report indicated the student benefited from oral motor exercises such as jar and tongue resistance and stability exercises (id.). The progress report further noted the student could then-currently produce the "sh" phoneme at the syllable level with clinician modeling (id.). The speech-language pathologist testified that the student, "ha[d] already shown signs of progress," with his speech-language therapy; however his academic and social delays warranted the need for continued services (Parent Ex. G ¶ 10).
Based on the totality of the circumstances, the unilaterally obtained speech-language services addressed the student's identified needs and, therefore, the hearing record supports finding that they were appropriate for the student for the 2023-24 school year.
C. Equitable Considerations
The final criterion for a reimbursement award is that the parent's' 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"]).
The parents argue that the IHO erred in not making a finding regarding equitable considerations and that they favor the parents. The parent further argues that the hearing record supports the $250 per hour rate charged by the private speech pathologist for speech-language therapy and that the district did not put forth any evidence that demonstrated that the rate was excessive. The parent also argues that the contract with the private speech-language pathologist shows that she had a financial obligation to pay for the unilaterally obtained speech-language services and that the district did not raise a dispute regarding the parent's inability to pay during the impartial hearing.[13] Accordingly, the parent argues equitable considerations favor her.
In the answer, the district did not make any arguments regarding equitable considerations, nor did it make any arguments regarding equitable considerations during the impartial hearing.
Accordingly, review of the hearing record supports the parent's contention that equitable considerations weigh in favor of granting the requested relief.[14]
D. Compensatory Education
Turning to the parties' arguments regarding compensatory education, the parent requests an award of compensatory education for any speech-language therapy sessions the student did not receive during the 2023-24 school year at the contracted rate. The district argues the parent is not entitled to compensatory education because, in its view, the parent rejected the May 2023 IESP and engaged in self-help by privately obtaining speech-language therapy.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]). Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).
In this case, the parent's amended due process complaint notice raised the matter of compensatory education as relief "for any periods [of speech-language therapy] not provided during the 2023-24 school year" (Parent Ex. A at pp. 2-3). The parties do not dispute that the student was entitled to speech-language therapy services as recommended in the May 2023 IEP (see Dec. 4, 2024 Tr. p. 16; Parent Exs. A at pp. 1-2; B at p. 7; IHO Ex. I at p. 3). Nor do the parties dispute the district's failure to deliver the services to which the student was entitled.
The parent's service contract with the private speech pathologist stated that she "[wa]s requesting that [the private speech pathologist] provide the recommended services [] to whatever extent possible for the 2023-24 school year" and the speech pathologist represented that she would "make every effort to implement the recommended services [] with suitably qualified providers for the 2023-24 school year," and "intended to provide" speech-language therapy at a rate of $250 per hour for the 2023-24 school year (Parent Ex. D). Accordingly, under the particular circumstances of this matter where the parent engaged in self-help and unilaterally obtained private services for the student, I agree with the district and find no basis for an award of compensatory education to, in effect, remediate gaps in the unilateral programming arranged for by the parent, especially absent specific evidence regarding any difficulties she encountered obtaining the services (see generally Application of a Student with a Disability, Appeal No. 24, 625; Application of the Dep't of Educ., Appeal No. 22-139).
VII. Conclusion
Having found that the evidence in the hearing record supports a determination that the IHO erred by finding the district was not required to deliver equitable services due to a lack of a parental request, that the speech-language services unilaterally obtained by the parent were appropriate for the 2023-24 school year, and that equitable considerations do not weigh against the parent's request for relief, the necessary inquiry is at an end.
I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision dated April 29, 2025, is modified by reversing those portions which found that the parent did not properly request equitable services by June 1, 2023; and
IT IS FURTHER ORDERED that the speech-language therapy services which were unilaterally obtained by the parent and provided by a private speech-language pathologist to the student for the 2023-24 school year were appropriate;
IT IS FURTHER ORDERED that upon proof of delivery of services, the district shall fund the costs of up to one hour per week of speech-language therapy services delivered to the student by the private speech-language pathologist during the 2023-24 school year at the rate of $250 per hour.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] The parent filed an initial due process complaint notice on July 14, 2024 (Parent Ex. B at pp. 1, 4).
[3] The transcripts are not consecutively paginated. For purposes of this decision, the transcripts will be cited by date and corresponding page number.
[4] The district filed a motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction and ripeness on August 27, 2024 (see IHO Ex. II). The IHO denied the motion during the prehearing conference (see Sept. 27, 2024 Tr. p. 10).
[5] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[6] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[7] The statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the June 1 deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Frequently Asked Questions About Legislation Removing Non-Medical Exemptions from School Vaccination Requirements" Follow-Up, at p. 4 [DOH/OCFS/SED Aug. 2019], available at https://www.health.ny.gov/prevention/ immunization/schools/school_vaccines/docs/2019-08_vaccination_requirements_faq.pdf).
[8] This is due, in part, because the district is required to navigate requirements that are in tension with one another. On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("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" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services. Additionally, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]). Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]).
[9] According to the May 2023 IESP, the student was then-currently receiving speech-language therapy twice a week in a small group during the 2022-23 school year; the parent reported there was an interruption in the service and that the student had not been receiving speech-language therapy "consistently throughout the school year" (Parent Ex. C at p. 1).
[10] The district does not cross-appeal from the IHO's finding that it would be inappropriate to place the burden of proof on the parent to show the appropriateness of the unilaterally obtained speech-language services for the student for the 2023-24 school year but rather argues that the parent is not entitled to compensatory education as relief (see Answer). Accordingly, there is no argument raised by the district that the unilaterally obtained speech-language services provided to the student during the 2023-24 school year were inappropriate. However, since the IHO did not apply the correct legal standard when analyzing the parent's unilaterally obtained speech-language services, it will be addressed here.
[11] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from private providers (Educ. Law § 4404[1][c]).
[12] The speech-language pathologist's June 2024 written testimony indicates that the "progress report entered into evidence" addressed the 2023-24 school year (Parent Ex. G ¶¶ 6-8). Therefore, it appears that the progress report, which included a service commencement date of September 7, 2023, is incorrectly dated May 1, 2023 (see Parent Ex. F at pp. 1-2). Additionally, the student's age, as reported in the speech-language progress report is consistent with the report being completed in 2024, rather than 2023 (compare Parent Ex. C at p. 1, with F at p. 1).
[13] The parent also argues that the district's failure to implement services constitutes a "de facto delegation" of its responsibilities to the parent and that the cost of services should not be a permissible reason for the district to avoid its obligation.
[14] I note that the hearing record does not contain a 10-day notice letter submitted by the parent stating that she intended to obtain private services and seek direct funding or reimbursement from the district. 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 v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; 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). Ultimately, there was no argument or allegation during the impartial hearing regarding the lack of 10-day notice. While the hearing record does not include a 10-day notice from the parent, given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record, it would be imprudent to reduce the award of district funding for the unilaterally-obtained services based solely on the absence of a 10-day notice.