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Special Education Law
OSRMixed ResultAppeal No. 25-354

Application of the New York City Department of Education

February 12, 2026·Sarah L. Harrington·New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-354

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability

Appearances:

Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.

Gulkowitz Berger LLP, attorneys for respondent, by Shaya M. Berger, 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 district) appeals from a decision of an impartial hearing officer (IHO) which ordered it to reimburse the parent for her son's private services delivered by Capture Success, LLC (Capture Success) for the 2023-24 school year.  The appeal must be sustained in part.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student was in preschool during the 2022-23 school year and at that time exhibited cognitive and speech-language delays and received preschool special education services (Parent Ex. B at pp. 1-2).  On February 5, 2023, a CSE convened, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for kindergarten with a projected implementation date of September 7, 2023 (see id. at p. 1).[1], [2]  The February 2023 IESP recommended that the student receive five periods per week of direct group special education teacher support services (SETSS) in Yiddish together with three 30-minute sessions per week of individual speech-language therapy in Yiddish and two 30-minute sessions per week of individual occupational therapy (OT) in English (id. at pp. 8-9).[3]  According to the February 2023 IESP, the student would be parentally placed in a nonpublic school (id. at p. 13).

On September 1, 2023, the parent signed an agreement for services with Capture Success for the provision of five 60-minute sessions per week of SETSS to the student at the rate of $195 per hour, which were implemented during the 2023-24 school year beginning on September 4, 2023 (Parent Exs. D; E; H).[4]

Next, on June 9, 2024, a CSE convened and developed an IESP for the student with a projected implementation date of June 23, 2024 (see Dist. Ex. 5).  The June 2024 CSE recommended five periods per week of direct group SETSS (Yiddish) and related services of three 30-minute sessions per week of group speech-language therapy (Yiddish) and two 30-minute sessions per week of individual OT (English) (id. at pp. 7-8).

A. Due Process Complaint Notice

In a due process complaint notice dated November 7, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2023-24 school year (see generally Parent Ex. A).  The parent asserted that the February 2023 IESP was the last IESP developed by the district with which the parent agreed and that, for the 2023-24 school year, the student required the "same special education services and the same related services" as recommended in the February 2023 IESP (id. at p. 1).  The parent claimed that the district failed to implement the recommended services for the 2023-24 school year and that she was unable to locate providers for the student at the district's standard rates (id.).  The parent requested pendency and an award of funding of five sessions per week of SETSS at the provider's rate for the 2023-24 school year (id. at p. 2).  Additionally, the parent sought either related services authorizations or direct funding for the recommended related services (id.).  Lastly, the parent requested compensatory education relief for those services the student did not receive from the district during the 2023-24 school year (id.).

In a due process response, the district generally denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and provided the prior written notice of recommendation dated June 23, 2024 as it related to the June 9, 2024 IESP (see Dist. Response to Due Process Compl. Not.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on May 7, 2025 (Tr. pp. 1-26).  In a decision dated May 8, 2025, the IHO found that the district denied the student a FAPE on an equitable basis for the 2023-24 school year and partially granted the parent's requested relief (IHO Decision at pp. 1, 6-7).[5]  Additionally, the IHO found no basis to dismiss the parent's claims based upon the district's asserted June 1st affirmative defense (id. at p. 6).

Turning to relief, at the outset, the IHO declined to use a Burlington/Carter analysis (IHO Decision at p. 3).  Instead, the IHO determined that the proper standard was a "compensatory services analysis" (id. at pp. 3-4).  The IHO found that the student should receive the SETSS recommended in the February 2023 and June 2024 IESPs for the 2023-24 school year (id. at p. 5).  The IHO held that the recommendations contained in both IESPs were appropriate and the student had made progress with the SETSS (id. at pp. 5-6).  Accordingly, the IHO found that the SETSS received by the student "[we]re necessary to place [the] [s]tudent in the position they would have been but for the [district's] failure to implement the IESP" (id. at p. 6).

As relief, the IHO ordered the district to fund five periods per week of SETSS by a provider of the parent's choice at a rate not to exceed $195 per hour (IHO Decision at p. 7).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO lacked subject matter jurisdiction to determine the parent's claims and that the IHO failed to properly assess the parent's case under a Burlington/Carter standard.  The district further asserts that the parent failed to provide evidence of how the unilaterally obtained SETSS were specially designed for the student to access the general education curriculum or make progress.  Furthermore, the district argues that the student was classified as a student with a speech or language impairment and "had significant speech issues" but Capture Success did not provide the student speech-language therapy services.  The district argued that based upon the totality of circumstances, the parent failed to meet her burden to prove that the services delivered by Capture Success were appropriate under a Burlington/Carter analysis.

In an answer, the parent argues that the IHO had jurisdiction to address her claims and that the IHO did not err in finding that the parent was entitled to funding for the SETSS delivered by Capture Success.  The parent also argues that the IHO correctly determined the rate for the awarded SETSS and that equitable considerations weighed in the parent's favor.  The district replies to the parent's answer, alleging that the answer fails to comply with the practice regulations.[6]

V. Applicable Standards

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

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

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

VI. Discussion

A. Preliminary Matters

1. Subject Matter Jurisdiction

As a threshold matter, it is necessary to address the district's appeal concerning subject matter jurisdiction.  The district argues that federal law confers no right to file a due process claim regarding services recommended in an IESP and that New York law confers no right to file a due process complaint notice regarding IESP implementation claims.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-296; Application of a Student with a Disability, Appeal No. 25-287; Application of a Student with a Disability, Appeal No. 25-224; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-079; 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 the New York City Dep't of Educ., Appeal No. 25-068; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

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

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

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

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

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

After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], available athttps://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 these recent years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[12]

In its request for review, the district contends that, under the Education Law, parents do not have and have never had a right to bring a due process complaint notice for the implementation of IESP claims or enhanced rate services.  Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

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

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

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief, available under § 4404, are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 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 use the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[14]  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the district's appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

2. Legal Standard

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

In this matter, the student has been parentally placed in a nonpublic school, and the parent did not seek tuition reimbursement from the district for the student's attendance.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Capture Success 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]).[15]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

Turning to the IHO's first point in her decision, that, in her opinion, Burlington/Carter, as applied to cases such as this, improperly places the burden on the parents to establish the appropriateness of unilaterally obtained services, when Education Law § 4404 indicates that such a burden was only intended for tuition reimbursement cases (IHO Decision at p. 3, citing Educ. Law § 4404[1][c]).  The IHO indicated that "[t]he plain meaning of the term tuition is the cost paid for enrollment in a school . . . [and that] the term 'placement' in IDEA cases has also meant a school, not services" (IHO Decision at p. 3).

However, State law defines tuition more broadly.  For example, Education Law § 4401(5) defines tuition as "the per pupil cost of all instructional services . . . as determined by the commissioner," and that qualifier is meant to give the Commissioner of Education discretion to determine allowable tuition rates for nonpublic schools with which the district may contract for the purpose of educating students with disabilities (Educ. Law § 4401[5] [emphasis added]; Org. to Assure Servs. for Exceptional Students, Inc. v. Ambach, 82 A.D.2d 993, 994, modified on other grounds, 56 N.Y.2d 518 [1982]).[16]  Additionally, State guidance pertaining to a school district's authority to contract for the provision of core instructional services defines "core instruction" as "those courses and instructional programs which are part of the regular educational program of the school district, and to which students are entitled as part of a free public education" including "both general and special education programs and related services which school districts are required by law to provide as part of a program of public education, and for which a certification area exists and to which tenure rights apply pursuant to Education Law and/or Commissioner's regulations" ("Updated Clarifying Information and Q and A related to Contracts for Instruction," Office of Instructional Support Educ. Mem. [Sept. 2024], available athttps://www.nysed.gov/memo/standards-instruction/updated-clarifying-information-and-q-and-related-contracts-instruction).  Although SETSS are not defined in the State continuum of special education services, similar services are included, such as consultant teacher or resource room services (8 NYCRR 200.6[d], [f]), and such services fall within the scope of this definition of instructional services.[17]

Moreover, in fashioning appropriate relief, courts have interpreted the IDEA as allowing reimbursement for the cost, not only of private school tuition, but also of "related services" (see Burlington, 471 U.S. at 369; Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 [1st Cir. 2006]; M.M. v. Sch. Bd. of Miami-Dade Cnty., Fla., 437 F.3d 1085, 1100 [11th Cir. 2006] [collecting authority]; see also Ventura de Paulino, 959 F.3d at 526 ["Parents who are dissatisfied with their child's education . . . can, for example, 'pay for private services, including private schooling'"] [emphasis added], quoting T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 [2d Cir. 2014]).  Under these broad definitions, I do not agree with the IHO's interpretation that funding for a unilateral placement means only the costs for a student's tuition at a private school, or that Burlington/Carter analyses are specifically intended only for cases involving tuition reimbursement.

With respect to the burden being placed on the parent, in Burlington, the Supreme Court determined that if it was determined "that a private placement desired by the parents was proper under the Act," that the IDEA authorizes relief in the form of tuition reimbursement (Burlington, 471 U.S. at 369).  The Court went on to eventually hold that "[a]bsent some reason to believe that Congress intended otherwise, . . . the burden of persuasion lies where it usually falls, upon the party seeking relief" (Schaffer v. Weast, 546 U.S. 49, 57–58 [2005]).  Accordingly, placing the burden of production and persuasion on parents who seeks reimbursement or public funding of private services that they acquired from private companies without the consent of school district officials is consistent the objectives in the IDEA as well as with State law (Educ. Law § 4404[1][c]).

Moving to the second point in the IHO's proffered reasoning, the IHO indicated that this matter was distinguishable from the Burlington/Carter scenario because the type of violation by the district was different (i.e., a failure to provide services that the parties agreed to versus a disagreement over the adequacy of an IEP) (IHO Decision at pp. 3-4).

The fact that the Burlington and Carter cases were IEP disputes, that is, disputes over the adequacy of the programming design is of little consequence.  It just so happens that parties more often disagree about which type of programming is appropriate for a student with a disability, and the courts have explained that the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  However, a district's delivery of a placement and/or services must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]).  Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE.  Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]).  The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington-Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).

Nor has the approach been different in cases in which the parents have already obtained unilateral services in lieu of the public services and challenge the district's capacity to implement the student's programming.  In instances where a parent has alleged nonspeculative challenges to a district's implementation or capacity to implement the provisions in the IEP, courts have found parents entitled to relief in the form of tuition reimbursement applying the Burlington/Carter standard (see, e.g., W.W. & D.C. v. New York City Dep't of Educ., 160 F. Supp. 3d 618, 628-29 [S.D.N.Y. 2016]; B.R. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 679-80 [S.D.N.Y. 2012]; A.S. v. New York City Dep't of Educ., 2011 WL 12882793, at *17 [E.D.N.Y. May 26, 2011], aff'd, 573 Fed. App'x 63 [2d Cir. July 29, 2014]).

Next, the IHO opined that the application of a Burlington/Carter framework "forces the parent into a predicament . . . contrary to the purposes of the IDEA and [S]tate law" as the parent is forced to choose between paying for unilateral services (resulting in the student's special education to no longer be free) or to forego special education services for the student (IHO Decision at p. 4).  In addition, the IHO reasoned that the Office of State Review has been "inconsistent . . . about whether to apply" Burlington/Carter or apply a compensatory education analysis in these matters, as shown by Application of a Student with a Disability Appeal Number 23-065, where an "SRO used a compensatory services analysis in a Section 3602-c case" (id.).  The IHO also indicated that the Office of State Review thereby appeared to acknowledge "that there is flexibility regarding the appropriate test to use" (id.).

The Burlington/Carter framework was adopted in these matters to provide context, standards, and reasonable oversight over the proposed remedies.  For example, although the school district could not contract with a teacher who was qualified as a special education teacher but not certified in the State of New York, a parent could do so and seek reimbursement from the district (Application of a Student with a Disability, Appeal No. 20-087).  Further, in the earlier incarnations of these cases, the parents sought direct public funding and had not taken on any liability or financial risk that is required in a Burlington/Carter framework.  Without any requirement for parents to take the financial risk for such services, the financial risk was borne entirely by unregulated private schools and agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district; this has practical effects because the private school and agencies are incentivized to inflate costs for services for which parents do not have any financial liability and parents begin seeking the best private placements possible with little consideration given to what the child needs for a merely appropriate placement (or services) as opposed to "everything that might be thought desirable by 'loving parents'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998], quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]).  Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.

While acknowledging the distinctions and concerns identified by the IHO, the most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington-Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.[18]  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F., 746 F.3d at 76; R.E., 694 F.3d at 184-85).  Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

Thus, in light of the above, while I acknowledge the IHO's reasoning and concerns with respect to the proper standard to review implementation and reimbursement claims for unilaterally obtained services, I find that the IHO erred in the legal standard applied to assess whether the parent was entitled to the relief sought.  I now turn to examine the parent's requested relief using the Burlington-Carter standard.

B. Unilaterally-Obtained Services

Here, the district does not appeal the IHO's finding that it denied the student a FAPE for the 2023-24 school year or the IHO's finding that the June 1st affirmative defense raised by the district did not require dismissal of the parent's claims.  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.  A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. Student's Needs

While not in dispute, a discussion of the student's needs provides context for the issue to be resolved, namely, whether Capture Success delivered specially designed instruction to the student that addressed his unique needs during the 2023-24 school year.

At the time the February 2023 IESP was developed, the student was in preschool and was anticipated to begin kindergarten in September 2023 (Parent Exs. B at p. 1; I at p. 1).  The February 2023 IESP reported results from previous evaluations of the student conducted in 2020 (Parent Ex. B at pp. 1, 2).  The February 2023 IESP noted that administration of the Stanford-Binet Intelligence Scale-Fifth Edition (SBIS-5) yielded cognitive quotients within the borderline delayed range (id. at p. 1).  Results of the Developmental Assessment of Young Children, Second Edition (DAYC-2) indicated that the student's cognitive skills were "poor," and that his social/emotional skills were below average (id.).  On the Preschool Language Scales – Fifth Edition (PLS-5), the student was found to have decreased receptive and expressive language skills; on the Goldman-Fristoe Test of Articulation (GFTA) the student was noted to have "[r]educed intelligibility and misarticulations"; and on the apraxia profile the student demonstrated reduced oral motor/feeding skills (id.).

The February 2023 IESP reflected reports from the student's mother that, regarding daily living skills, the student experienced difficulty removing the front openings of coats and sweaters, was unable to pull up clothes with an elastic waistband, and experienced difficulty removing his socks and shoes (Parent Ex. B at p. 1).  He was, however, able to drink from a cup without spilling and feed himself with utensils and was toilet trained (id.).

In terms of the student's receptive language, the February 2023 IESP noted that he was unable to make inferences, understand analogies, understand negatives in sentences, identify colors, or understand "expanded sentences" (Parent Ex. B at p. 1).  The student had difficulty comprehending spatial concepts such as "under" and in "back of," and using pronouns such as "his" and "hers" (id.).  Expressively, the student was unable to use four-five word sentences or use plurals and "present progressive tense" (id.).  He was unable to answer "simple 'wh' questions," name objects when described, answer questions "logically," use possessives, or name an object's function (id.).  The student's articulation and phonology skills were said to be reduced "due to the presence of many misarticulations on several phonemes, including deletions and distortions of sounds," which contributed to his decreased intelligibility of speech (id.).  The student's oral motor/feeding skills as described in the IESP, indicated that he presented with decreased strength and range of motion of the articulators, an open mouth posture, and immature chewing and swallowing patterns (id. at p. 2).  Further noted in the February 2023 IESP, the parent had concerns about the student's delayed cognitive and speech-language skills (id.).  According to the parent, the student also had difficulty identifying shapes and required repetition of concepts and direct 1:1 support to understand concepts taught to him (id.).

Turning to the student's social development, the February 2023 IESP reported that the student was functioning in the below average range socially, as he was noted to have difficulty socializing with peers and adults and was "not really speaking" (Parent Ex. B at p. 2).  He was described as having difficulty sharing and usually played by himself (id.).  The February 2023 IESP noted that the student pushed his peers and had difficulty taking turns (id.).  Further, the student was described as self-directed, had a "fleeting attention span," and required a lot of repetition and redirection (id.).  Additionally, the February 2023 IESP indicated that the student did not show different emotions, or try to interact with others at school (id.).

Next, in terms of physical development, the February 2023 IESP noted that the student was able to run "smoothly," jump with both feet, ascend and descend stairs, and walk two blocks without support (Parent Ex. B at p. 2).  The February 2023 IESP indicated that the student demonstrated "significant delays in fine motor and graphomotor areas, and poor focusing," immature grasp patterns, and weak in-hand manipulation skills (id.).  The IESP noted that the parent reported that the student had difficulty with cutting and coloring (id. at p. 3).

The February 2023 IESP described numerous supports to address the student's management needs, including small group work; partner work; manipulatives such as cubes, counters, grids, and extra paper; visual aids; fine motor activities; articulation drills; leveled texts; redirection; repetition of material and directions; breakdown of material; verbal and gestural prompts; oral motor activities; positive reinforcements; multisensory learning approach; and letter sound identification through flashcards (Parent Ex. B at p. 3).

2. Unilaterally Obtained SETSS

During the 2023-24 school year the student attended kindergarten at a nonpublic school and received five hours per week of SETSS, after school, at the "home office" of Capture Success (Tr. pp. 10-11; Parent Ex. I at p. 1).

The hearing record included copies of invoices that indicated that the SETSS provider delivered five hours per week of SETSS to the student from September 1, 2023 through June 30, 2024 (see Parent Ex. H).  The SETSS provider indicated that the sessions with the student were individual and occurred after regular school hours, with all but one listed as being delivered from 4:00 p.m. to 5:00 p.m. (Tr. pp. 10-11, 13; see Parent Ex. H).

The one piece of evidence relied upon by the parent to show the appropriateness of the unilaterally obtained SETSS is an undated SETSS progress report (see Parent Ex. I).[19]  As memorialized in the SETSS progress report, the SETSS provider stated the student was unable to write any numbers and could not consistently identify numbers up to 10, but was able to "identify and name most of the Hebrew" alphabet letters and some sounds (id. at p. 1).  The progress report indicated that the student required "extra thinking" before producing vowel sounds, had difficulty segmenting sounds in words, and that he needed "much repetition" to gain knowledge and remember what was being taught to him (id.).  According to the SETSS provider, the student had "very minimal knowledge of the English" alphabet letters and was unable to "identify or name any letters yet" (id.).

Further, the SETSS provider noted that the student had difficulty focusing, remaining on task without getting distracted, and remaining seated, and indicated that he displayed a short attention span (Parent Ex. I at p. 1).  She described that the student "often" swung his chair, climbed around, and "touched everything in his surroundings" (id.).  According to the progress report, the student also had difficulty following directions, listening to rules, and asking permission before touching others' belongings (id.).  In her testimony during the impartial hearing, the SETSS provider stated that the student was a "behavioral kid," and he had a "very hard time remaining seated," and he "needed a lot of redirection" (Tr. p. 15).  The SETSS progress report noted that, when the student was presented with problems or difficult tasks, he became upset and did not express himself in an age-appropriate manner (Parent Ex. I at p. 1).  It was further noted that the student could not communicate his feelings and exhibited "extremely inappropriate" behavior (id.).

The SETSS progress report also indicated that the student's speech was "very unclear, which ma[de] him very difficult to be understood by others," and he "mis-use[d] pronouns" (Parent Ex. I at p. 1).  Additionally, the student exhibited receptive language delays including difficulty answering "wh" questions after listening to a story, as well as having difficulty verbally expressing a scene depicted in pictures (id.).

The SETSS progress report included several goals to address the student's needs in reading, writing, and math (Parent Ex. I at p. 2).  However, it appears that the goals were developed for the 2024-25 school year and, therefore, do not reflect what skills the provider targeted with the student during the 2023-24 school year (id.).  Nor were there goals to address the student's behavioral and speech-language deficits as described in the report, or references to other services the student was receiving to address those needs (id. at pp. 1-2).  Overall review of the progress report shows that while the SETSS provider identified the student's needs, there was no description or explanation of the specially designed instruction she may have delivered to the student during the 2023-24 school year to support a finding that the SETSS was appropriate to meet those needs (see Tr. pp. 10-16; Parent Exs. E; H: I). 

Review of the other evidence in the hearing record shows that it does not include information about how the SETSS the student received was specially designed to meet his needs (see Parent Ex. I).  For example, while the SETSS provider testified that she created handwritten session notes for the student, those were not included in the hearing record (Tr. pp. 11-12; see Parent Exs. A-J; Dist. Exs. 1-5).  The February 2023 IESP noted that the SETSS were to be delivered to the student in Yiddish and the SETSS provider testified in her direct affidavit testimony that services were provided as set forth in the February 2023 IESP (Parent Exs. B at p. 8; E ¶ 6).  However, although the SETSS provider held a professional bilingual education extension, the hearing record failed to indicate whether the SETSS were delivered in Yiddish or English, and the SETSS progress report refers to needs in both languages (Parent Ex. G at p. 2).

Furthermore, with respect to the IHO's statement that the student had been making progress as a result of receiving SETSS, a review of the February 2023 IESP and SETSS progress report shows that, while the student showed some progress in certain cognitive and academic skills (math and letter and sound recognition in Hebrew), he continued to exhibit considerable challenges across language, attention, task persistence, social, behavioral, and writing domains (IHO Decision at pp. 5-6; compare Parent Ex. B, with Parent Ex. I).[20]

Included with the SETSS progress report was a recommendation for the student to continue to receive five hours per week of SETSS (Parent Ex. I at p. 2).  The basis for the continued recommendation was the student's difficulty focusing and short attention span which impeded his ability to learn (id.).  However, the hearing record did not provide any information regarding any communication/coordination that the SETSS provider may have had with the student's classroom teacher regarding his attention and behavioral needs in the classroom, and how to address them (see Tr. pp. 10-16; Parent Exs. A-J; Dist. Exs. 1-5).

Indeed, absent from the hearing record is evidence regarding the curriculum at the nonpublic school, the student's non-SETSS instruction, and how SETSS would have been connected to the instruction provided by the nonpublic school during the 2023-24 school year (see generally Parent Exs. A-E, G-J).  Moreover, it is not clear from the hearing record if or how the student's needs related to speech-language therapy and OT were being addressed.  Review of the student's February 2023 IESP shows that the student exhibited significant speech-language needs with "decreased intelligibility of speech," which was a concern of the parent and noted by the SETSS provider (Parent Exs. B at p. 2; I at p. 1).  In addition, the February 2023 IESP noted significant fine motor delays including not being able to turn one page of a book at a time and inability to pick up small objects with his thumb and fingers (Parent Ex. B at pp. 2-3).  The parent expressed her concerns to the CSE about the student's OT needs as he had a hard time cutting and coloring (id.).  Consequently, review of the evidence in the hearing record does not show that the student's speech-language or fine motor needs were addressed during the 2023-24 school year (see Parent Exs. A-E, G-J).  Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quotingRowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.

Overall, the evidence in the hearing record does not support a finding that the parent met her burden to prove that the services she unilaterally obtained for the student constituted appropriate instruction specially designed to address the student's unique educational needs.  As noted above, specially designed instruction is defined 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, the hearing record does not include any evidence of the instruction that the student received while attending the general education classroom during the 2023-24 school year in terms of the structure, instruction and curriculum provided, methodologies, or modifications within the core educational program.  Indeed, given the student's attention and social/emotional needs and the lack of evidence that such needs were addressed through the unilaterally obtained services, it is not clear from the hearing record how the student fared in the general classroom. For example, it is not possible to ascertain from the evidence presented whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the services from Capture Success supported his functioning in the classroom.  Without evidence regarding the school-based programming, the unilaterally obtained services were described in isolation.  The lack of evidence about what the general curriculum entailed or how the SETSS supported the student's access to that curriculum makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  The absence of such information means that the services could not be evaluated in the context of the setting in which the student was purportedly being educated.

Based on the foregoing, given the totality of the circumstances, the evidence in the hearing record does not support the IHO's award as the parent failed to meet her burden to establish that the unilaterally obtained SETSS were specially designed to meet the student's needs.

VII. Conclusion

Having found that the parent failed to sustain her burden in establishing the appropriateness of the unilaterally-obtained SETSS for the 2023-24 school year under the Burlington-Carter standard, the IHO's decision is reversed consistent with the decision herein, and the necessary inquiry at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated May 8, 2025 is modified by reversing those portions that found the relief sought by the parent appropriate and ordered the district to fund SETSS provided to the student by Capture Success for the 2023-24 school year.

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 hearing record contains duplicate copies of the February 5, 2023 IESP (compare Parent Ex. B, with Dist. Ex. 4).  For ease of reference, this decision will cite to the parent's exhibit.

[3] 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.

[4] Capture Success has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).

[5] In an undated motion to dismiss for a lack of subject matter jurisdiction, the district argued that the IHO did not have jurisdiction over implementation and rate dispute claims arising under Education Law § 3602-c (Dist. Mot. to Dismiss).  The parent submitted opposition to the district's motion (see Parent Ex. J).  The IHO did not rule on the district's motion to dismiss (see generally Tr. pp. 1-26; IHO Decision; Req. for Rev. ¶ 5).

[6] I have reviewed the pleadings, and I decline to reject the parent's answer on the grounds stated by the district.

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

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

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

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

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

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

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

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

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

Questions and Answers

1. What does "dual enrollment" mean?

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

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

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

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

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

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

[16] Education Law § 4401 is not applicable to an analysis of a district's obligation to fund a unilateral placement—which need not be approved by the Commissioner—as a remedy for a denial of a FAPE, and is cited here for illustrative purposes only regarding the definition of tuition that it employs.

[17] Further, at least in the pendency context, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed," not the bricks and mortar school location (Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]).

[18] This is the factual scenario present in the decision cited by the IHO for the proposition that compensatory education is the appropriate category of relief and, therefore, it is distinguishable from the present matter where the parent has already secured the private services (see Application of a Student with a Disability, Appeal No. 23-065).  Indeed, in Application of a Student with a Disability Appeal Number 23-065, the student had not received any special education services for the applicable school year, and the parent had not unilaterally obtained private services for the student.  Rather, as the student had not received any special education services (including pursuant to pendency), the parent appropriately sought compensatory education services.

[19] The SETSS provider testified that she developed the progress report at the end of the 2023-24 school year (see Tr. p. 11).

[20] It is well settled that progress is not a dispositive factor in determining whether a unilateral placement is appropriate, although it is relevant factor to be considered (see Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]); see also Frank G., 459 F.3d at 364; Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]) Frank G., 459 F.3d at 364).  Review of the SETSS progress report does reflect a statement that the student was making progress (see Parent Ex. I).