STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-343
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 petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by N. Noelle Letcher Newhouse, 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 daughter's private services delivered by All Kidz R Star Kidz (All Kidz) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which required the district to reevaluate the student and reconvene a Committee on Special Education (CSE) meeting. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local 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
During the 2021-22 school year, the student was in sixth grade and attended a nonpublic school (Parent Ex. B at pp. 1, 3). On April 28, 2022 a CSE convened and found the student eligible for special education as a student with a speech or language impairment (id. at p. 1).[1] The CSE developed an IESP (2022 IESP) with a projected implementation date of May 5, 2022 and recommended that the student receive 10 hours per week of group special education teacher support services (SETSS) in Yiddish, and two 30-minute sessions per week of individual speech-language therapy in Yiddish (Parent Ex. B at p. 9).[2], [3]
On May 14, 2024, the parent signed a document to notify the district of her intent to place the student at a nonpublic school at her own expense and to request that the district continue to provide the student's special education services during the 2024-25 school year (Parent Ex. C). The letter additionally advised the district that the parent had "not yet received any notice that the [district] w[ould] be providing providers for [her] child's services" and that, therefore, she was "in the process of searching for [her] own providers" for which she would seek district funding (id.).
The parent entered into a contract on September 1, 2024 with All Kidz for the provision of 10 hours per week of SETSS to the student during the 2024-25 (ninth grade) school year at a rate of $225.00 per hour (Parent Ex. D).
A. Due Process Complaint Notice
In a due process complaint notice dated February 16, 2025, the parent alleged that the district denied the student a FAPE and equitable services for the 2024-25 school year (Parent Ex. A at p. 2). The parent asserted that the last program the district developed for the student was the 2022 IESP and that she had received no "other educational program" for the student for the 2024-25 school year (id. at p. 1). The parent claimed that the student was entitled to those services set forth in the 2022 IESP for the 2024-25 school year but that the district had not assigned providers to deliver the services to the student (id.). The parent further alleged that she had been unable to locate a provider willing to accept the district rates and consequently had no choice but to retain the services of an agency to provide the student with her mandated services at an enhanced rate set by the provider (id.).
The parent requested a pendency hearing and interim order establishing the student's "automatic entitlement to pendency" (Parent Ex. A at p. 2). As relief, the parent requested an order: requiring the district to provide the services recommended in the 2022 IESP for the 2024-25 school year including "any services that require adjustment to reflect [the] student's age to be adjusted accordingly"; direct funding paid to the student's providers for "the provision of all services awarded" based on the 2022 IESP; and compensatory relief due to the district's failure to provide equitable services to the student (id.).
B. Impartial Hearing Officer Decision
An IHO from the Office of Administrative Trials and Hearings (OATH) was assigned to hearing the matter. On April 18, 2025, the IHO issued a pendency order, determining that the basis for the student's pendency programming was the April 2022 IESP that provided for 10 periods per week of SETSS and two 30-minute sessions per week of individual speech-language therapy (IHO Ex. II). According to the IHO's pendency order, the district "objected to pendency on grounds of subject matter jurisdiction"; however, the IHO found "that subject matter jurisdiction d[id] exist to hear the matter" (id.).
An impartial hearing convened before the IHO on April 22, 2025 (see Tr. pp. 1-40). In a decision dated May 1, 2025, the IHO found that the district denied the student a FAPE on "an equitable basis" for the 2024-25 school year, but also that the parent failed to establish that the unilaterally obtained services through All Kidz were appropriate and denied the parent her requested relief (IHO Decision pp. 3, 6).
The IHO held that it was undisputed that the operative IESP was the April 2022 IESP and that the parent agreed with the recommended program (IHO Decision p. 6). The IHO noted that the evidence was "unclear" with regard to the actual services the student received from the provider, "the strategies or methodologies" used to address the student's needs, and whether the student was making progress due to the provider's efforts (id.). Likewise, the IHO also identified a lack of session notes, unsigned and undated invoices, and a progress report that outlined the student's deficits, goals and a recommendation for continued services, but provided no information about how the provider addressed the student's needs (id. at pp. 6-7). The IHO held that the evidence submitted by the parent did not substantiate her argument that the provider was meeting the student's individual special education needs and that those services were "reasonably calculated for [the student] to receive educational benefit" (id. at p. 7).
Despite finding that the parent failed to demonstrate the appropriateness of the unilaterally obtained special education services, the IHO made alternative findings with regard to the equitable considerations (IHO Decision pp. 7-9). The IHO determined that there was no evidence that demonstrated the parent interfered with the district's obligation to offer the student a FAPE and that the parent submitted a "June 1st notice" to the district (id. at p. 9). However, the IHO noted that the parent failed to provide "any evidence of submitting the required" 10-day notice to the district, and cited deficient testimony on the part of the parent's sole witness as to the justification of the rate requested (id. at p. 9). Accordingly, the IHO determined that the "payment for services would be reduced to a reasonable market rate . . . were any award to be ordered" (id.). Ultimately, the IHO denied the parent's request for direct funding and ordered the district to implement the student's SETSS, conduct new evaluations in all areas of suspected disability, and reconvene to develop a new IEP or IESP for the student (id. at p. 10).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in determining that there was insufficient evidence to demonstrate that the unilaterally obtained SETSS were appropriate. The parent argues that the testimony of the All Kidz administrator included detail about the student's challenges, the tools and methods used to deliver services to the student, and the student's progress. The parent further argues that the All Kidz's December 2024 progress report was sufficient as it showed four months of SETSS had been provided by the time of its completion.
Next, the parent argues that, even if the unilaterally obtained services are not held to be appropriate, she is still entitled to an award of direct funding of SETSS at a rate of $225 per hour. The parent asserts that the district conceded that the SETSS and related services were recommended in the relevant IESP, and that the district failed to provide these services. Accordingly, the parent argues that a Burlington/Carter analysis is not required and that she is entitled to funding at the rates of her chosen private providers.
In an answer and cross-appeal the district argues that the IHO lacked subject matter jurisdiction to decide the matter, and, alternatively, that the IHO properly held that the unilaterally obtained services were inappropriate and the rate charged by the provider was excessive.[4] The district argues further that the IHO's order to reconvene was improper because it was both outside the scope of the due process complaint and the IHO did not properly give notice to the parties about this issue prior to the impartial hearing. Finally, the district argues that the pendency order issued by the IHO should be dismissed or clarified on the basis that the student did not receive services from the district.[5]
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[6] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[7] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
As an initial matter, I will address the district's cross-appeal that the IHO lacks subject matter jurisdiction in this case. Although the district did not raise the argument during the impartial hearing, it is permitted to raise subject matter jurisdiction at any time in proceedings, including on appeal (see U.S. v. Cotton, 535 U.S. 625, 630 [2002]). Indeed, a lack of jurisdiction "can never be forfeited or waived" (Cotton, 535 U.S. at 630).
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 that there is no federal right to file a due process claim regarding services recommended in an IESP and that parents never had the right to file a due process complaint notice with respect to a rate for services for implementation of an IESP (Answer & Cr.-Appeal ¶¶ 17-20).
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, 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]).[8]
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).[9] 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.[10]
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 3602-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.[11]
In its answer and cross-appeal, the district contends that, under the Education Law, parents do not have a right to bring a due process complaint for the implementation of either 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]).[12] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that 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 F. App'x 461, 465 (2d Cir. 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 p. 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 p. 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.).[13] 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 dismissal of the due process complaint notice and subsequent appeal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Unilateral Placement
Next, as neither party appealed the IHO's finding that the district denied the student a FAPE for the 2024-25 school year (see generally Req. for Rev.; see also Answer Cr.-Appeal), this finding has become final and binding on the parties and will not be further discussed (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]).
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from All Kidz for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[14] 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).
1. The Student's Needs (April 2022 IESP)
Although not in dispute, a discussion of the student's needs provides context to resolve the next issue on appeal, specifically, whether the 10 hours per week of unilaterally-obtained SETSS delivered by All Kidz for the 2024-25 (ninth grade) school year were appropriate to address the student's needs.
At the time of the April 2022 IESP, the student was in sixth grade at a nonpublic school (Parent Ex. B at p. 3). Per report, the student spoke and understood Yiddish (id.). Evaluative information reflected in the IESP indicated that the student's general cognitive ability was in the very low range, and her verbal comprehension ability was in the extremely low range (id. at pp. 2-3). However, her visual spatial, fluid reasoning, and processing speed skills were in the low average range, and her working memory was in the average range (id.). Academically, the IESP indicated that the student's basic reading and math fluency skills were in the below average range (id. at p. 2). Results of academic testing reflected in the IESP indicated the student's reading comprehension and addition skills were in the low range; word reading, pseudoword decoding, spelling, and subtraction skills were in the below average range; and numerical operations and multiplication skills were in the average range (id.). The IESP reflected that "informal testing of Yiddish reading revealed that accuracy decrease[d] with increased speed" (id. at p. 3). Per parent report, the student struggled to read grade-level books, made mistakes when reading, and had difficulty applying basic skills and strategies to understand the text (id.). According to the IESP, the student had difficulty writing structured sentences, spelling, and writing ideas on paper (id.). In math, the student struggled to understand math and word problems (id.). Additionally, the IESP reported that the student needed repetition, prompting, and redirection to complete tasks, and she struggled with focusing, following multistep directions, and completing class assignments (id.). Further, the IESP indicated that the student needed class lessons broken down into simple steps to complete tasks and to keep up with the pace of the class (id.).
In the area of social development, the April 2022 IESP reflected that the student was cooperative throughout testing, and that she completed all tasks asked of her and maintained a pleasant, friendly manner (Parent Ex. B at p. 4). Per report, the IESP indicated that the student was able to interact appropriately with classmates and maintain appropriate behavior at school (id.). The parent reported that the student was aware she was performing very poorly in school and that she wanted to see a decrease in the student's frustration about her school performance (id.). The IESP reported no concerns in the area of physical development (id.).
2. SETSS From All Kidz
Turning to the unilaterally obtained services, the hearing record contained a SETSS progress report dated December 2024, and SETSS invoices for the months of September through December 2024 (Parent Exs. G; H). In addition, the evidence included certification information for the four providers who reportedly delivered the student's special education services (Parent Ex. F).
The SETSS report stated that the student was a bilingual Yiddish speaking girl in ninth grade, whose cognitive struggles hindered her ability to succeed in school (Parent Ex. H at p. 1). Per the All Kidz service contract and affidavit testimony from the All Kidz administrator, the student received 10 one-hour periods of SETSS per week that began on September 1, 2024 for the 2024-25 school year (Parent Exs. D; E ¶¶ 1, 4). The SETSS report identified the four providers named in the administrator's affidavit as those who delivered SETSS to the student (compare Parent Ex. E ¶ 2, with Parent Ex. H at p. 1). The administrator testified that she typed the information from the student's four providers into one cohesive document, the December 2024 SETSS progress report (Tr. p. 23; see Parent Ex. H). Although the report identified the providers by name, none of the providers signed the report (Parent Ex. H at pp. 1, 4).
According to the December 2024 SETSS progress report, the student's cognitive struggles included slow processing, weak comprehension skills, inability to focus for an extended period of time, and weak critical thinking skills (Parent Ex. H at p. 1). Additionally, the SETSS progress report indicated that the student presented with academic and language deficits that needed to be addressed to support appropriate functioning at school (id.).
The SETSS progress report stated that the student was reading at a fifth-grade level and had improved her reading comprehension to a fourth-grade level (Parent Ex. H at p. 2). According to the report, the student had made progress in her ability to understand words in context and she identified the differences among various forms of writing (id.). The SETSS providers reported that the student was "focusing on improving her comprehension of texts at her reading level," which included "learning how to analyze words for their figurative, connotative, and technical meanings while also increasing her vocabulary recognition and understanding" (id.). Reading goals included that the student would determine an author's point of view and analyze how the author distinguished their position from others; determine the meaning of words and phrases and analyze the impact of a specific word choice; and compare and contrast text to other mediums and analyze the different portrayals (id. at p. 3). The progress report identified that improvement in these areas would enhance her reading comprehension (id. at pp. 2-3).
In the area of writing, the SETSS progress report indicated that student showed improvement in her ability to express her ideas in a clear manner and described the student as more active in using reading materials to support her analyses (Parent Ex. H at p. 3). The report stated that the student "occasionally s[ought] guidance from her peers and adults" but noted the student took more initiative in planning and revising her writing independently (id.). According to the report, the student had been working on understanding the difference between possessive nouns and plural nouns and was "beginning to grasp these concepts" which was reflected in her writing (id.). Goals to improve the student's writing included that she would draw evidence from texts to support analysis, reflection, and research; use planning, revising, editing, rewriting, or trying a new approach to strengthen writing; and write an informative/explanatory test to examine a topic and convey ideas and information while incorporating specific essay components (i.e. use of clear topic introductions, appropriate transitions, and concluding statements) (id. at pp. 3-4).
In math, the SETSS progress report stated that the student had skills at a mid-seventh grade level and had learned to add fractions and convert them into numbers with "prompts and coaching" (Parent Ex. H at p. 1). The report identified the student's challenges with processing speed and comprehension and noted that "[o]vercoming hurdles with multi-step word problems and finding percents show[ed] she [wa]s working towards generalizing concepts" (id.). The progress report included three goals with numerous short-term objectives to improve the student's ability to recognize and represent proportional relationships between quantities; extend the domain of trigonometric functions using the unit circle; and extend the properties of exponents to rational exponents (id. at pp. 1-2).
As related to language needs, the SETSS progress report identified that the student was working on improving her vocabulary and that "[s]he ha[d] been participating in activities that introduce[d] her to new words and their meanings" (Parent Ex. H at p. 4). Additionally, the progress report stated that the student had practiced "conversations to enhance her ability to select appropriate words in different situations" noting that she had demonstrated progress in her communication skills with "consistent effort" (id.). Goals and short-term objectives reflected in the progress report were designed for the student to: demonstrate understanding of figurative language, word relationships, and nuances of word meanings; and choose language that expresses ideas precisely and concisely to reduce wordiness and redundancy (id.). According to the SETSS progress report, the student was hardworking, eager to please peers and teachers, and had a positive nature; however, could get frustrated at times when she did not understand something "in her academics," which caused "her to start to stress" (id.). To support the student's social/emotional needs, the report identified one goal for her to "[u]se one method to decrease her frustration level" and a second goal to "[u]se one method to decrease her stress level" (id.).
In relation to interventions, the SETSS progress report indicated that the student had been given preferential seating to decrease distractions and enable the teacher to assist the student when needed (Parent Ex. H at p. 5). When asked how the SETSS providers addressed some of the student's deficits, the administrator stated that she did not have "a specific list of activities and things that [wer]e done" (Tr. p. 17). She stated that providers received training that incorporated comprehension, higher order thinking, and task initiation skills, and gave an example of a strategy to help a student maintain focus on a reading passage (Tr. pp. 17-18). The SETSS providers recommended that the student continue receiving her current SETSS mandate "to enable her to receive a proper education" (Parent Ex. H at p. 5).
The All Kidz administrator testified that she did not know whether the student's SETSS were delivered in Yiddish, but indicated that the student received services on a 1:1 basis and that sessions took place "[a]t the provider's place of business or the agency center" (Tr. p. 8). In relation to providing 1:1 SETSS rather than group SETSS as recommended in the April 2022 IESP, the administrator testified that the agency currently did not have any students in a group, and that the student's cognitive needs were such that it would have been "difficult or impossible to teach her while teaching other students" (Tr. p. 14). According to the administrator, the student needed individual lessons broken down into individual steps, which would not benefit other students, who would also be "much younger" than the student (Tr. pp. 14-15).
Review of the invoices show they included the session dates and times from September through December 2024, along with the names of the four providers listed in the administrator's affidavit (compare Parent Ex. G, with Parent Ex. E ¶ 2). Of note, the majority of the student's SETSS sessions occurred after 5:00 p.m., with some sessions provided between 8:00 p.m. to 10:00 p.m. (see Parent Ex. G at pp. 3, 5). The administrator testified that her agency spoke with the teachers from the student's nonpublic school "from time to time" and touched base with them (Tr. p. 16). In relation to how the student's SETSS fit into the nonpublic school curriculum, the administrator testified that the student "c[ame] with her homework assignments" as provided by the school, and that "the providers work[ed] with her on . . . helping her complete them," while at the same time incorporating "as many skill building lessons as possible" (id.).
As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). However, here, the evidence in the hearing record does not describe the general education programming at the student's nonpublic school or how the SETSS supported the student within the school setting. From review of the invoices, the majority, around 70 percent of dates of services, occurred during non-school hours (Parent Ex. G). The SETSS report reviewed above indicated the student had been given preferential seating to decrease distractions and enable the teacher to assist the student (Parent Ex. H at p. 5). However, aside from this accommodation, there is no description of the specially designed instruction the SETSS provider used to address the student's needs in the classroom, rather, it appears that the SETSS providers worked on homework with the student after school hours (Tr. pp. 8, 16; Parent Ex. G).
As described in detail above, the December 2024 progress report provided little information regarding the supports or specially designed instruction All Kidz used to address the student's needs. Additionally, the evidence in the hearing record provided little information about how the SETSS providers addressed the student's deficits within the classroom setting.[15] Accordingly, there is no reason to disturb the IHO's decision that the parent failed to meet her burden to prove that the unilaterally-obtained SETSS was specially designed to address the student's identified needs.
C. CSE Reconvene
Next, I will address the district's cross-appeal from the IHO's order directing the district to reevaluate the student in all areas of suspected disability and her order for the district to reconvene a CSE within 30 days of the date of the decision (see IHO Decision at p. 10).
An IHO generally has broad authority to fashion appropriate equitable relief (see, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011]; see Forest Grove v. T.A., 129 S.Ct. 2484 [2009]); however, an IHO should ensure that equitable relief awarded is designed to remedy an issue that was raised.
Here, the district is reminded of its obligations in that generally it must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303 [a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; 34 CFR 300.303[b][1]-[2]).
The district is further reminded that the CSE is obligated by law and regulation to conduct an annual review for the student and there is no evidence that, as of the filing of the due process complaint notice in this matter, the CSE has conducted such review since its April 2022 meeting. Moreover, the IESP from that meeting does not indicate when the last time the district conducted an evaluation of the student. Accordingly, while the parent did not seek a reconvene of the CSE as a remedy in this instance, the district nonetheless is required, even absent an order to do so, to fulfill its obligation to convene for the student's annual review in accordance with the aforesaid statutory and regulatory framework.
It was within the IHO's broad authority to order that the district fulfill its obligation to reevaluate the student and convene a CSE meeting as a form of appropriate equitable relief. Thus, I find no reason to disturb the IHO's order that the district shall reevaluate the student and convene a CSE meeting to develop the student's educational program.
VII. Conclusion
Based on the foregoing, the IHO was correct in determining that the parent failed to sustain her burden to show that the unilaterally obtained services from All Kidz were appropriate.
I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] 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 is 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] The hearing record contains duplicative exhibits. For purposes of this decision, except where otherwise indicated, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[4] The district cites various documents in its answer and cross-appeal (i.e., referring to State Education Department memorandums as "B" and "C"; however, such documents are not included with the hearing record on appeal and were not submitted with the district's answer and cross-appeal. Nevertheless, to the extent State guidance documents are a matter of public record, they will be discussed as necessary below.
[5] The IHO's pendency order does not address whether the student's services were to be delivered by a private provider, therefore the district is not aggrieved by the interim order and there is no need to address the matter on appeal (IHO Ex. II).
[6] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[7] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[8] 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]).
[9] 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.
[10] 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 at https://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[11] 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.
[12] 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; thus, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.
[13] 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.
[14] 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 All Kidz (Educ. Law § 4404[1][c]).
[15] Further, the April 2022 CSE determined that the student needed speech-language therapy services in addition to SETSS to address her needs, and the hearing record does not include any information regarding whether speech-language services were provided to the student at the nonpublic school (see Parent Ex. B at p. 9; see generally Parent Exs. A-I; Dist. Exs. 1-4).