STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-359
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 Gil Auslander, 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 found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to fund the student's privately obtained services provided by Special Edge Support, LLC (Special Edge) for the 2022-23 school year, and by EdZone, LLC (EdZone) 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 programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The hearing record reflects that as early as 2018, the student was eligible for special education and related services as a preschool student with a disability, with recommended services including special education itinerant teacher (SEIT) services, speech-language therapy, occupational therapy (OT), and physical therapy (PT) (Parent Ex. C).[1]The hearing record contains little information regarding the student's educational history between the 2018-19 and 2021-22 school years.
A CSE convened on March 9, 2022, found the student eligible for special education as a student with an other health impairment, and developed an IESP for the student with a projected implementation date of March 21, 2022 (Dist. Exs. 5 at p. 1; 6 at p. 1).[2] According to the March 2022 IESP, the student's present levels of performance in academics indicated that the then eight year old student displayed reading skills "at to [sic] above those of his peers," writing skills "comparable to his peers," and math skills which were described to be "significantly more tedious" with the curriculum "more language based" (Dist. Ex. 5 at pp. 1-2).[3] Further, the IESP included a statement that the student tended to react impulsively, at times scratched or hurt other students, presented with overall difficulty exerting self-control, required support in his graphomotor skills, and had received the diagnosis of attention deficit hyperactivity disorder (ADHD) (id. at p. 2). The March 2022 CSE recommended that the student receive 10 periods per week of group special education teacher support services (SETSS); one 30-minute session per week of group counseling services; two 30-minute sessions per week of group speech-language therapy; and two 30-minute sessions per week of individual OT (Dist. Exs. 5 at pp. 7-8; 6 at p. 1).[4]
By prior written notice dated March 11, 2022, the district summarized the recommendations of the March 2022 CSE and indicated that the recommended services would be put into effect on March 25, 2022 (Dist. Ex. 6 at p. 1).
On July 1, 2022, the parent signed a contract with Special Edge for the provision of special education services for the 2022-23 school year (Parent Ex. D at pp. 1, 3). On August 23, 2022, the parent, through a lay advocate, provided the district with a letter, informing the district that it had not assigned providers to the student for the 2022-23 school year and that if providers were not assigned, the parent would unilaterally obtain the student's mandated services at an enhanced market rate (Parent Ex. F). The student began receiving SETSS from Special Edge on September 19, 2022 and OT services on December 19, 2022 (Parent Ex. L at p. 1; M at p. 1).
By letter dated May 31, 2023, the parent requested that the district provide the student with special education services at a nonpublic school for the 2023-24 school year (Parent Ex. H at p. 1). The hearing record reflects that the parent's request for special education services was sent via email to four regional CSE email addresses, and four district employee email addresses from an email account designated "parentssubmissions@gmail.com" (id. at p. 2).
By letter dated August 23, 2023, the parent, through a lay advocate, advised the district that providers had not been assigned to deliver the student's recommended services for the 2023-24 school year (Parent Ex. G). The parent further stated that if the district failed to assign providers for the student, she would "be compelled to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (id.).
On August 27, 2023, the parent electronically signed a document on EdZone letterhead described as a payment agreement, which included an addendum regarding the 2023-24 school year (Parent Ex. E at pp. 1-3). The EdZone payment agreement indicated that the parent was financially responsible to pay the fees for the services listed in the addendum (id. at p. 1). The addendum indicated that the student would receive 10-month services "in accordance with the last agreed upon IEP/IESP/FOFD/Pendency Order/Pendency Agreement/Court Order or Decision of SRO/Meditation [sic] Agreement/Resolution Agreement" (id. at p. 3). The addendum included a chart of hourly fees for services that indicated the rate for one hour of special education services, counseling, OT, PT, or speech-language therapy was $198 for individual services and $148 for group services (id.). The hearing record reflects that the student began receiving special education services, for the 2023-24 school year on September 11, 2023 (Parent Ex. Q at p. 1; see Parent Ex. K).[5]
On September 12, 2023, the parent signed a district form indicating that she wanted the district to provide special education services to the student for the 2023-24 school year (Dist. Ex. 4). The district's form indicated that it must be submitted no later than June 1, 2023 (id.).
A CSE convened on November 29, 2023, determined that the student remained eligible for special education as a student with an other health impairment, and developed an IESP with a projected implementation date of December 13, 2023 (Dist. Exs. 1 at pp. 1, 8, 11; 2 at p. 1). The November 2023 CSE recommended that the student receive 10 periods per week of group SETSS; one 30-minute session per week of group counseling services; two 30-minute sessions per week of group speech-language therapy; and two 30-minute sessions per week of individual OT (Dist. Exs. 1 at p. 8; 2 at p. 1). By prior written notice dated December 13, 2023, the district summarized the recommendations of the November 2023 CSE and indicated that the "recommended services w[ould] be put into effect on [December 13, 2023]" (Dist. Ex. 2 at p. 1).
A. Due Process Complaint Notices
In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year (Dist. Ex. 10 at p. 1).[6] The parent further asserted that the district failed to conduct and consider all necessary evaluations, failed to consider the full continuum of services for the student, denied the parent meaningful participation in the development of the student's educational program, and failed to provide the parent with prior written notice (id.). The parent also claimed that the "latest program of services developed for [the student] d[id] not meet [his] individualized needs," did not address the difficulties and disabilities that the student presented with, and did not provide sufficient supports and services to allow the student to make effective progress towards age-appropriate goals and objectives, and the parent did not agree with the IESP (id.). The parent alleged that the student required 12-month services and continued to require the services recommended in a May 2018 preschool IEP (id. at p. 2). The parent next alleged that she was unable to identify and hire a qualified provider for the student at the district's published rates and was only able to obtain providers at higher rates (id.). As relief, the parent sought funding for 10 hours per week of SEIT services, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of OT, and two 30-minute sessions per week of PT at market rates for the 2022-23 school year, as well as a "finding that the [district] failed to provide [the student] with a [FAPE] for the 2023-2024 school year" (id. at pp. 1, 3 [emphasis added]).[7] The parent also requested compensatory education services for any necessary and/or mandated services not provided to the student by the district and reserved the right to amend the due process complaint notice to address "the full 2023-2024 school year" (id. at p. 3). The due process complaint notice did not include a request for pendency; however, the district's exhibit included an email dated July 15, 2024, which indicated that the due process complaint notice, and a pendency form were sent to the district (id. at p. 5).
The parent subsequently filed another due process complaint notice on July 15, 2024, alleging that the student was denied a FAPE for the 2023-24 school year (Dist. Ex. 14 at pp. 1-3). The parent again asserted that the district failed to conduct and consider all necessary evaluations, failed to consider the full continuum of services for the student, denied the parent meaningful participation in the development of the student 's educational program, and failed to provide the parent with prior written notice (id. at p. 1). The parent again claimed that the "latest program of services developed for [the student] d[id] not meet [his] individualized needs," did not address the difficulties and disabilities that the student presented with, and did not provide sufficient supports and services to allow the student to make effective progress towards age-appropriate goals and objectives, and the parent did not agree with the IESP (id.). The parent alleged that the student required 12-month services and continued to require the services recommended in a May 2018 preschool IEP (id. at pp. 1-2). The parent next alleged that she was unable to identify and hire a qualified provider for the student at the district's published rates and was only able to obtain providers at higher rates (id. at p. 2).
As relief, the parent sought pendency and funding for the 2023-24 school year, as well as a "finding that the [district] failed to provide [the student] with a [FAPE] for the 2023-2024 school year," and compensatory education services to be provided to the student as a bank, at an enhanced rate set by the provider, to make-up for any mandated services not provided by the district (Dist. Ex. 14 at p. 3). The district's exhibit also included a pendency implementation form asserting that the student's pendency services were based on a May 2, 2018 IEP, and also included an email dated July 15, 2024, which indicated that the due process complaint notice, and pendency form were sent to the district at 6:44 p.m. (id. at pp. 4-5).
B. Impartial Hearing and Impartial Hearing Officer Decisions
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed on July 24, 2024 to preside over the matter (Interim IHO Decision at p. 2). In an order of consolidation dated August 13, 2024, the IHO consolidated a July 15, 2024 due process complaint notice alleging a denial of a FAPE to the student for the 2022-23 school year (IHO Case No. 281633) with a July 15, 2024 due process complaint notice alleging a denial of a FAPE for the 2023-24 school year (IHO Case No. 282460) into this matter (IHO Case No. 281633) (id.; Tr. pp. 3-4). The parties reconvened before the IHO for an impartial hearing on February 18, 2025, which concluded on March 24, 2025 after two additional days of proceedings (Tr. pp. 13-102).[8]
In a decision dated May 5, 2025, the IHO found that it was uncontested that the district failed to offer or provide services to the student for the 2022-23 and 2023-24 school years (IHO Decision at p. 16). The IHO determined that the parent demonstrated the appropriateness of the services obtained as the student required considerable 1:1 support in academics and social/emotional domains in order to make and maintain progress (id. at pp. 16-17). The IHO further declined to reduce the parent's requested rates due to "the absence of any evidence that [the district] offered services at a lower rate" (id. at p. 7 [emphasis omitted]). Regarding the 2022-23 school year and the district's June 1 affirmative defense, the IHO found that "[w]hile [the p]arent admitted that she did not submit a 'June 1 Letter' pursuant to § 3602-c," he "read the June 1 rule as a notice requirement" (id. at p. 17). The IHO found that the district's "creation of an IESP on [March 3, 2022], which was to be implemented during the [2022-23 school year], show[ed] that it was on notice that [the s]tudent would require special education services during the [2022-23 school year]" (id.). The IHO found that the parent requested special education services for the 2023-24 school year on May 31, 2023, and that there was no evidence that the district offered or provided services to the student during the 2023-24 school year (id. at p. 15). The IHO reiterated that he retained subject matter jurisdiction over the matter (id. at p. 17).
Turning to the issue of compensatory education, the IHO indicated that the parties agreed that the student required OT and speech-language therapy during the 2022-23 and 2023-24 school year, however there was "insufficient record evidence to demonstrate what if any provision of services would be sufficient to put [the s]tudent in the place he would have been had he been receiving appropriate services all along" (IHO Decision at p. 17). Next, the IHO found that there was "a dearth of additional evaluative data" in the March 2022 and November 2023 IESPs with which to determine that the student continued to require OT and speech-language therapy (id.). As the hearing record "lack[ed] sufficient evidence to determine the appropriate provision" of OT and speech-language therapy, the IHO directed the district "to conduct a comprehensive reevaluation" of the student which included a psychoeducational evaluation, an OT evaluation, a speech-language therapy evaluation, a classroom observation, and to convene a CSE to develop an appropriate IESP for the student (id. at pp. 17-18).
As additional relief, the IHO ordered the district to fund and/or reimburse the parent for the "SEIT/SETSS" and OT obtained for the student at the contracted rate during the 2022-23 school year and to fund and/or reimburse the parent for the "SEIT/SETSS" obtained for the student at the contracted rate during the 2023-24 school year, upon presentation of receipts or invoices (IHO Decision at p. 18).
IV. Appeal for State-Level Review
The district appeals and alleges that the IHO erred in failing to dismiss the parent's claims for the 2022-23 and 2023-24 school years. Initially, the district asserts that the parent failed to submit a request for equitable services by June 1, 2022 and June 1, 2023, as required by Education Law § 3602-c. The district also contends that the IHO erred in finding that the parent satisfied her burden of proving the appropriateness of the unilaterally obtained services and that equitable considerations weigh against granting relief. The district also argues that the IHO erred in ordering the district to conduct an OT and PT evaluation of the student and in awarding related services after the parent withdrew her request.
In an answer, the parent denies the district's material allegations and argues that the IHO's decision should be affirmed in its entirety.
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]).[9] "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.).[10] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A.June 1 Deadline
With respect to the district's appeal of the IHO's finding that the parent timely submitted a request for equitable services, the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).
Initially, I note that, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]). Instead, once the district raised the defense, it was incumbent upon the parent to submit evidence that she provided written notice to the district. The district raised the June 1 defense in its responses to the due process complaint notices, at the beginning of the impartial hearing when documents were being admitted into the hearing record, during its opening statement, and in its closing statement during the impartial hearing (see Tr. pp. 10, 18, 28, 88-89; Sept. 6, 2024 Due Process Response at p. 1; Sept. 12, 2024 Due Process Response at p. 1).[11]
This matter involves two different school years and therefore has two different June 1 deadlines. The parent testified by affidavit regarding the 2022-23 school year, and stated that the district "did not notify [her] of the need to send a June 1 'notice of residence letter'" for the 2022-23 school year (Parent Ex. I ¶ 9). The parent also appeared at the impartial hearing for cross-examination and testified that she did not submit a request for equitable services for the 2022-23 school year on or before June 1, 2022 (Tr. p. 55).
With regard to the 2022-23 school year, the IHO found that "[w]hile [the p]arent admitted that she did not submit a 'June 1 Letter' pursuant to § 3602-c," he "read the June 1 rule as a notice requirement" (IHO Decision at p. 17). The IHO found that the district's "creation of an IESP on [March 3, 2022], which was to be implemented during the [2022-23 school year], show[ed] that it was on notice that [the s]tudent would require special education services during the [2022-23 school year]" (id.). The IHO's determination that the district was "on notice" was tantamount to a finding that the district waived the June 1 affirmative defense for the 2022-23 school year.
A district may waive a procedural defense through its actions (see N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991] [stating that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct"]; see also Application of the Bd. of Educ., Appeal No. 18-088). However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.Y. Tele. Co., 930 F.2d at 1011). While the delivery of services reflects a "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP would, without more, constitute a waiver.[12] For example, to the extent a district was navigating two requirements in tension with one another, i.e., to conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]) versus awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]), the occurrence of the meeting might not clearly or unmistakably reflect the district's waiver of the June 1 requirement.
Here, it is undisputed that the district provided no services to the student during the 2022-23 school year. The district created an IESP for the student in March 2022; but the timing of the March 2022 CSE meeting, months before the start of the 2022-23 school year, suggests an effort by the district to comply with its annual CSE requirement, not a clear and unmistakable waiver of the June 1 requirement (see Dist. Ex. 5). Accordingly, the evidence in the hearing record does not support a finding that the district impliedly waived the June 1 defense for the 2022-23 school year through its conduct (see, e.g., Application of a Student with a Disability, Appeal No. 24-404 [finding that the district's creation of an IESP for the student, months into the school year, did not constitute an implied waiver of the June 1 defense]; cf. Application of the Bd. of Educ., Appeal No. 18-088 [finding that the district impliedly waived the June 1 defense where the district created an IESP for the student and began providing services at the student's nonpublic school after the June 1 deadline]).
Based on the foregoing, the hearing record does not support the IHO's determination that the district was obligated to provide the student with equitable services for the 2022-23 school year, and the IHO erred in awarding the parent any relief for the 2022-23 school year.
Turning to the 2023-24 school year, the hearing record includes requests for equitable services dated May 31, 2023 and September 12, 2023 (Parent Ex. H at pp. 1-2; Dist. Ex. 4). The district argues that the parent belatedly submitted a request for equitable services on September 12, 2023, and that the May 31, 2023 request was "an illusory an[d] unauthenticated document … masquerad[ing] as a June 1 letter but [wa]s grossly deficient" because (1) the letter was not signed by the parent and included an electronic signature; (2) the accompanying email, which purported to attach the request was not submitted via the parent's email, nor was it associated with an identifiable law firm or advocate; and (3) the accompanying email appeared to be sent to multiple CSEs "in a scattershot and speculative effort that it may reach the correct individuals" (Req. for Rev. ¶ 20).
As noted above, there is no question that the district raised the June 1 defense during the impartial hearing. Further, there is no dispute that the parent knew of the requirement that she provide the district notice of her request for equitable services prior to June 1 and that a letter was prepared for this purpose and dated May 31, 2023 (Parent Ex. H).
With respect to the exhibit admitted into evidence, the first page includes a conformed signature for the parent (Parent Ex. H at p. 1). The second page of the exhibit shows that the May 2023 letter was sent to several email addresses with the school district email domain, including "CSE5," "CSE6," "CSE7," and "CSE8" in addition to four individuals (id. at p. 2). Review of the hearing record reflects that the student's educational planning fell under the auspices of CSE 4, which was not included in the email; however, it is not clear from the hearing record if the parent was aware that the student was in CSE 4 (Dist. Exs. 19 at p. 1; 21 ¶¶ 1, 6).
The parent testified that the May 2023 letter was her "electronic consent … that the attorney sends on [her] behalf to the [district]. So [she] signed off on that electronically" (Tr. p. 58). The parent was asked during cross-examination whether she was aware of the email address that sent the request and she stated that it was "the attorney sending on [her] behalf" (Tr. pp. 58-59). The parent further testified that she did not send the request herself and she could not recall who her attorney was at the time the request was sent (Tr. p. 59).
The district asserts that the parent failed to comply with § 3602-c and argues that Application of a Student with a Disability, Appeal No. 24-217 stands for the proposition that the parent is not entitled to any relief for the 2023-24 school year because the parent's notice was sent to several email addresses with the school district email domain and the parent in that matter testified that the notice was written on her behalf and she was aware of it, but did not email it herself (Req. for Rev. ¶ 24). The district further argues that the circumstances of this matter are sufficiently similar to Application of a Student with a Disability, Appeal No. 24-217, and the SRO should find as in the prior matter that "there are approximately 1 million students inclusive of over 200,000 students eligible for special education services residing within New York City, the parent's position that it is sufficient to transmit a request for dual enrollment services … to the wrong community district or CSE region [wa]s unreasonable" and should be rejected (Req. for Rev. ¶ 24). However, the district fails to acknowledge that in Application of a Student with a Disability, Appeal No. 24-217, the district offered evidence to refute the parent's timely submission of a request, which included entries from its special education student information system (SESIS) events log for the student, and witness testimony stating that a request for services was not received by the correct CSE on or before June 1, 2023. While in this matter, there is no evidence that the parent's request was sent to CSE 4, there is also no evidence demonstrating that the request was not received by the district or by CSE 4, as it could have been forwarded by the district to the correct committee once received. Further, there is no explicit prohibition set forth in Education Law § 3602-c against parents authorizing a third-party to deliver a June 1 request for dual enrollment services to a school district on the parents' behalf. Nor is there a requirement in the statute that the parent must use a particular type of signature or is precluded from the use of a conformed signature (see Educ. Law § 3602-c[2]).
Therefore, based on the evidence in the hearing record, and absent any evidence or assertion that the district did not receive the June 1 notice or, upon its receipt, reach out to the parent to question the blank signature line, the June 1 notice was sufficient to effectuate the purpose of the June 1 notice, which was to inform the district of the parent's desire to have special education services delivered to the student at his nonpublic school during the 2023-24 school year. Thus, the IHO did not err in finding that the parent timely requested equitable services for the student for the 2023-24 school year.
B.Unilaterally Obtained Services 2023-24 School Year
The district has not appealed the IHO's determination that it failed to offer or provide services to the student pursuant to the May 2, 2018, March 11, 2022, or November 29, 2023 IESPs during the 2023-24 school year (IHO Decision at p. 16). Accordingly, this findings has 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 the substance of the district's appeal, the district asserts that the IHO engaged in very little analysis and erred in finding that the parent demonstrated the need and appropriateness of the unilaterally obtained services. Specifically, the district argues that the IHO conflated SETSS and SEIT services, which raises concerns about the reliability and authenticity of the evidence identifying the services the student actually received. The district further contends that SETSS and SEIT are not the same services and are not interchangeable.
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 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from EdZone 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]).[13] 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).
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 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 at 364; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.The Student's Needs
In order to address the appropriateness of the parent's unilaterally obtained services from EdZone, it is first necessary to review the evidence regarding the student's needs, which are relevant to determining if the unilaterally obtained services provided the student with specially designed instruction reasonably calculated to enable the student to receive an educational benefit.
For the 2023-24 school year, the parent alleged that the district's "latest program of services developed for [the student] d[id] not meet the individualized needs of the [s]tudent," "d[id] not address the difficulties and disabilities that the [s]tudent present[ed] with," "d[id] not provide sufficient supports and services to allow the [s]tudent to make effective progress towards age-appropriate goals and objectives," and that the CSE "failed to consider all of the [s]tudent's needs, and did not address those difficulties in a substantive manner" (Dist. Ex. 14 at p. 1). The parent did not indicate the specific IESP that she was challenging.
Global allegations by the parent in the due process complaint notice, such as those cited above are generally unhelpful for identifying substantive defects in the IESP, and it is unclear whether the parties actually have differing viewpoints of the student's deficits and special education needs. With regard to the district's contention that the IHO conflated SETSS and SEIT services, and that the student's providers from EdZone used the terms interchangeably, at issue is the appropriateness of the services unilaterally obtained by the parent, not whether the parent obtained the specific services recommended by the district or that the services obtained were utilized in the same manner as how the district would have employed those services if it had delivered the service itself.[14] It is well settled that a failure to furnish every special service necessary for the student will not render a unilateral program inappropriate if the program, as a whole, is reasonably calculated to enable the student to receive educational benefits (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016]; C.L., 744 F.3d at 838-39).
As of the July 15, 2024 due process complaint notice, challenging the 2023-24 school year, the "latest program of services developed for [the student]" was the IESP developed by the November 29, 2023 CSE (id.; see Dist. Ex. 1 at pp. 1, 11).
The December 2023 prior written notice reflected that the November 2023 CSE reviewed the following in creating the student's November 2023 IESP: a February 24, 2021 social history update, a November 29, 2023 teacher report, and a November 29, 2023 SETSS report (Dist. Exs. 2 at p. 1; 21 ¶ 13).[15] As indicated above. a CSE convened on November 29, 2023 and developed an IESP with a projected implementation date of December 13, 2023 (Dist. Ex. 1 at pp. 1, 8). At the time of the November 2023 CSE meeting, the student was in third grade and parentally placed at a nonpublic school (id. at pp. 1, 11). The November 2023 IESP indicated that the student's reading grade level equivalent was second grade and his math grade level equivalent was first grade (id.).
The November 29, 2023 IESP included a report attributed to the student's classroom teacher, which indicated that the student read well and showed good comprehension skills (Dist. Ex. 1 at p. 1). In addition, the student was described as having difficulty expressing himself in writing and benefitting from the use of graphic organizers (id.). The student had difficulty grasping math concepts, specifically subtraction, had some difficulty with math word problems, and independent work was a challenge for him (id.). The November 2023 IESP included that the student presented with expressive language delays which often led to frustration (id.). He had difficulty with handwriting and with writing overall (id.).
The November 2023 IESP also included a report attributed to the student's SETSS provider, which reflected that the student's decoding skills had reached grade level (Dist. Ex. 1 at p. 1). However, the student's maturity and understanding was below grade level and, therefore, he chose simpler books that were easier for him to understand (id.). He had difficulty inferencing or figuring out facts about the story that were not explicit (id.). In math, the student was able to add double digits and use carrying when solving addition equations; however, he struggled with basic subtraction of a double-digit and single-digit number, as he often fell a digit or two behind the correct answer (id. at p. 2). He had difficulty recalling numbers when counting back with a significant number of digits (id.). The November 2023 IESP noted that the parent expressed that while she had seen progress, the student continued to need support in expressing himself verbally and in written form, and with word retrieval (id.).
With regard to the student's social development, the November 2023 IESP indicated that the student's "teacher" reported the student could react inappropriately to social situations, though he interacted well with his classroom teachers (Dist. Ex. 1 at p. 2). He had good attention and focus, though, at times, he showed a low frustration tolerance (id.). According to the IESP, the student reportedly had a hard time sitting in class for long periods of time, needed breaks and "SETSS" had succeeded in getting him to sit for 15 minutes at a time and was then-currently working toward 20 minutes without a break (id.). It was also reported that the student was frustrated easily when it came to learning mathematical concepts and he got stuck in thinking one way even if it was not yielding the correct results (id.). According to the November 2023 IESP, the parent expressed concern that, at times, it was difficult for the student to make friends, but he was working on it through his mandated school-based counseling services (id. at p. 3).
The November 2023 IESP indicated that physically, the student had a diagnosis of ADHD and was not then-currently taking any medication (Dist. Ex. 1 at p. 3). His "class teacher" indicated that his letter formation was adequate, but he required support with his graphomotor skills, in developing adequate pressure with his grasp (id.).
The November 2023 IESP included an array of management needs that the student would benefit from that included positive reinforcement and praise for successive approximations of desired pro-social skill building, breaking complex skills into subskills for mastery, redirection prompts when observed off-task, repetition and paraphrasing as needed, scheduled movement/sensory breaks, comprehension checks during independent work, consistency of routines and procedures, converting story problems to visual representation, verbal and visual preparation for transitions or changes of routines/personnel, preferential seating, token economy, reward system for appropriate behaviors, modeling of skills, practice, repetition, feedback, being encouraged and praised for initiating, persisting and completing challenging work, and movement breaks (Dist. Ex. 1 at pp. 3-4).
According to the November 2023 IESP, the student presented with significant challenges in his social/emotional functioning, pragmatic language skills, math skills and fine motor skills (Dist. Ex. 1 at p. 4). The November 2023 IESP further indicated that SETSS, OT, counseling services, and speech-language therapy "should facilitate his progress in the general curriculum" (id.).
To address the student's needs, the November 2023 CSE recommended that the student receive 10 periods per week of direct group SETSS, one 30-minute session per week of counseling services in a group, two 30-minute sessions per week of speech-language therapy in a group, and two 30-minute sessions per week of individual OT (Dist. Ex. 1 at p. 8).
2.Services Delivered by EdZone
The hearing record included a November 2023 EdZone progress report prepared by the student's "special education teacher services" provider and signed by the provider's supervisor (Parent Ex. K at pp. 1-3). The progress report indicated the provider delivered five hours per week of "SETSS" to the student (id. at p. 1).[16] The EdZone time sheets show that the student received his services during the school day on an individual basis (see Parent Ex. Q). The parent testified that the reason why the student was receiving individual SETSS instead of group SETSS was because "that's what the [classroom] teacher together with the [SETSS] provider and [the parent] thought was appropriate for him to get" (Tr. p. 62).
In reading, to address the student's below grade level maturity and understanding and his preference for "more simple books", the SETSS provider pushed the student to spend time reading grade level texts and to help him understand them through "think aloud" methods (Parent Ex. K at p. 1). The progress report discussed the student's difficulty with inferencing or "figuring out facts about a story that were not explicit" and his trouble answering higher level thinking questions as well as his need for similes to be explained, as he took things at face value (id.). The progress report stated that the student's difficulty inferencing made it hard for him to "think up" attributes for characters and find "proof" in the text (id.). The SETSS provider had begun using graphic organizers to help the student with describing characters and finding proof contained in the words of text (id.). In addition, the provision of prompts helped the student "find the lines that would prove what he was trying to write" (id.).
In math, to address his difficulty with subtracting numbers, the progress report stated that the student received direct instruction with incentives and praise (Parent Ex. K at p. 1). The SETSS provider was working on training the student to use the skill of counting forward to find the difference, so that his answers would be more precise (id. at p. 2). To address the student's struggle with regrouping, he had been provided with concrete materials to aid his understanding of regrouping concepts (id.). The SETSS provider also used modeling to teach the thinking skills behind regrouping and the student was given ample opportunities for practice (id.). Materials were presented in various formats, such as in a tic-tac-toe game or through a board game with problems that needed to be solved to progress (id.).
To address the student's tendency to become frustrated when it came to learning mathematical concepts and where he got stuck in thinking one way even if it was not yielding the correct results, the SETSS provider used modeling and "think aloud" techniques to share another way to do something, slowly introducing the new method each day, practicing that method a little more, so it was less daunting for the student (Parent Ex. K at p. 2). In addition, the progress report stated that while the student's class had moved on to multiplication, the student was not yet ready for that concept and that the SETSS provider was actively assisting him in reaching the necessary level of readiness for multiplication (id.).
In the area of writing, the November 2023 SETSS progress report indicated that the student had good penmanship, was working on and improving his spelling skills, and would write words correctly with correct spacing (Parent Ex. K at p. 2). However, to address the student's tendency to write big whereupon he would not have enough room to answer his questions in the space provided, the SETSS provider made boundaries for the spacing of words so that his writing would fit in the space provided (id.). The student would then use the markers to know where he should write so he would move toward appropriately spacing his writing of words independently. (id. at pp. 1-2).
With regard to the student's social/emotional developmental delays, the student received frequent breaks to help him learn multiple subject matters (Parent Ex. K at p. 1). Also, subject matter was presented in a variety of forms for the student to be able to focus his attention, as he got bored easily (id.). The November 2023 progress report stated that the SETSS provider had succeeded in getting the student to sit for 15 minutes at time and was working towards him sitting for 20 minutes without any break (id. at p. 2). According to the SETSS progress report, the student's classroom teacher said that the student was showing more interest in class and he was trying to participate with the skills he learned during SETSS (id. at p. 1).
With respect to physical development, the SETSS progress report indicated the student received OT to help him with his difficulties in "those areas" (Parent Ex. K at pp. 2-3).[17]
Recommended annual goals for one academic year were aligned to the student's needs and included that the student would be able to solve one-step word problems involving addition or subtraction independently by using manipulatives, pictures, or number sentence; that the student would be able to solve six out of 10 addition and subtraction math problems with and without regrouping and multiplication problems using teacher made materials; that the student would describe characters in a story and make inferences in four out of five trials; and that the student would stay on task for 20 minutes at a time doing a non-favored work activity for four out of five trials (Parent Ex. K at p. 3).
Initially, as stated above, the Burlington-Carter framework requires the parent to prove that the unilateral placement constituted instruction specially designed to address the student's unique educational needs. However, the appropriateness of specially designed instruction cannot be determined in isolation from the overall educational programming the student is receiving, as 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]).
Accordingly, in reviewing the student's educational program, as a whole, for the 2023-24 school year, the student was enrolled at a nonpublic school in a general education classroom and received SEIT services or SETSS provided by EdZone. It would then be expected that the specially designed instruction provided by EdZone should have supported the student's access to the general education curriculum. However, in this matter, the parent has not presented any evidence of the student's nonpublic school programming, which must be weighed in determining the appropriateness of the student's educational program. As has been determined in prior State level administrative decisions, "the use of a special education service [, in isolation,] to replace primary general academic instruction that should have been delivered by the [student's] nonpublic school . . . cannot be ignored" (Application of a Student with a Disability, Appeal No. 25-104, citing Application of a Student with a Disability, Appeal No. 24-282).
Nevertheless, despite the lack of information regarding the student's school, under the unique circumstances of this matter, there is a sufficient basis for finding that the parent's unilaterally obtained services were appropriate. In considering whether the parent met her burden to prove the appropriateness of EdZone, no one factor, including progress, is necessarily dispositive in determining whether a parent's unilateral placement is reasonably calculated to enable the child to receive educational benefits; rather it is the totality of the circumstances that must be considered (see Frank G., 459 F.3d at 364 [holding that although a student's "[g]rades, test scores, and regular advancement [at a private placement] may constitute evidence that a child is receiving educational benefit, . . . 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"]). Further, it is well settled that parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of the student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, at *9 [S.D.N.Y. Mar. 18, 2010]). "The test for the private placement 'is that it is appropriate, and not that it is perfect'" (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 [2d Cir. 2016] [citations omitted]).
Based on the above, while the hearing record does not include evidence of the student's educational program at the nonpublic school, under the totality of the circumstances, the evidence presented by the parent, which included at least some unrebutted evidence showing that the student's services were delivered in school with consultation between the provider and the student's classroom teacher, demonstrates that it is more likely than not that the special education services provided to the student during the 2023-24 school year consisted of individualized instruction to support the student's needs and assisted the student in accessing the general education curriculum at the nonpublic school.[18]
C.Evaluations
As a final matter, the district alleges that the IHO erred in awarding OT services and evaluations for OT and PT. At the outset, I note that the IHO only awarded OT for the 2022-23 school year and, as discussed above, the parent failed to provide the district with a June 1 request for equitable services for that school year and it is not necessary to discuss it further; additionally, the IHO did not award any compensatory education services for the student (IHO Decision at p. 18).
Initially, in the July 15, 2024 due process complaint notices, the parent alleged that the district failed to conduct and consider all necessary evaluations, however a reevaluation was not among the parent's requested relief (Dist. Exs. 10 at pp. 1-4; 14 at pp. 1-3).[19]
The IHO directed the district to conduct a comprehensive reevaluation of the student to include a psychoeducational, OT, and PT evaluations, and to conduct a classroom observation (IHO Decision at p. 18). The district argues that the IHO erred in finding that the parties agreed that the student required OT and speech-language therapy, and in finding that there was insufficient evaluative information in the hearing record for him to determine an appropriate amount of compensatory education for the student. The district argues that because the parent withdrew her claim for any related services, it was error for the IHO to order a comprehensive reevaluation for the purpose of determining an amount of compensatory education.
While the district is correct that the IHO stated, in his discussion of compensatory education, that the district would be directed to conduct a comprehensive reevaluation of the student, review of the ordering clause reflects that the district was directed to convene a CSE to develop an updated IESP for the student (compare IHO Decision at pp. 17-18, with IHO Decision at p. 18). The district was not directed to determine an appropriate amount of compensatory education based on the results of the comprehensive reevaluation.
A district 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]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]). Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).
In addition, 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]). While an IHO should ensure that equitable relief awarded is designed to remedy an issue that was raised, in this instance, the district did not present any evidence to demonstrate that it has attempted to reevaluate the student since 2021 (Dist. Exs. 2 at p. 1; 5 at p. 1; 6 at p. 1).
Accordingly, to the extent that it has not done so, the district is required to proceed with a reevaluation of the student and there is no basis for reversing the IHO's decision directing the district to conduct a comprehensive reevaluation of the student to include psychoeducational, OT, and PT evaluations, and to conduct a classroom observation.
VII. Conclusion
In summary, the IHO erred in finding that the parent was not required to provide the district with a timely June 1 request for equitable services for the 2022-23 school year and, therefore, erred in awarding the parent funding for unilaterally obtained services provided by Special Edge for the 2022-23 school year. With respect to the 2023-24 school year, the hearing record supports finding that a June 1 request for equitable services was sent, the parent met her burden of demonstrating the appropriateness of her unilateral placement of the student at the nonpublic school along with privately obtained special education services delivered by EdZone, and equitable considerations weighed in favor of the requested relief. Further, the IHO did not exceed his authority in directing the district to conduct a reevaluation of the student.
I have considered the parties' remaining contentions and find that I need not address them in light of my findings herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO’s decision, dated May 5, 2025, is modified by reversing that portion which held that the parent was not required to submit a written request for equitable services for the 2022-23 school year; and
IT IS FURTHER ORDERED that the IHO’s decision, dated May 5, 2025, is modified by reversing that portion which directed the district to fund and/or reimburse the parent for the SEIT/SETSS and OT provided by Special Edge for the 2022-23 school year.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at https://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at: https://www.nysed.gov/special-education/approved-preschool-special-education-programs.
[2] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).
[3] The classroom teacher noted the student's age and indicated that the student was repeating the first grade (Dist. Ex. 5 at pp. 1-2).
[4] 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.
[5] The hearing record includes a September 11, 2023 due process complaint notice, which does not bear an IHO case number or provide any indication that it was filed. The September 11, 2023 due process complaint notice alleged that the district had failed to convene a CSE for the 2023-24 school year and had denied the student a free appropriate public education for the 2023-24 school year (Parent Ex. B at pp. 1-3). Parent exhibit B was admitted into evidence without any objection or discussion by the parties or the IHO on February 18, 2025, despite the IHO consolidating two different due process complaint notices both dated July 15, 2024, into this matter (IHO Case No. 281633) by order dated August 13, 2024 (Tr. pp. 3-4; 26-27; Interim IHO Decision at p. 2). The hearing record also includes multiple copies of the July 15, 2024 due process complaint notices, two of which include proof of filing (compare Parent Ex. A, with Dist. Exs. 10, 14). The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[6] The parent's exhibit list indicated that parent exhibit A was a July 15, 2024 due process complaint notice challenging the 2022-23 school year and that parent exhibit B was a September 11, 2023 due process complaint notice challenging the 2023-24 school year. As noted above, it is not clear if the due process complain notice, dated September 11, 2023, was ever filed with the district or what occurred with that proceeding if it was filed. Addiiotnally, neither of the parent's exhibits indicate the timing or manner of submission to the district. The district offered two due process complaint notices dated July 15, 2024 (Dist. Exs. 10; 14). Both of the district's exhibits bear IHO case numbers and include email documentation of the parent's submission of those documents to the district. For those reasons, the district's exhibits will be cited in this decision.
[7] The only school year identified in the "Problem Prompting Request" section of the parent's due process complaint notice was the 2022-23 school year; however, the "Proposed Solution" section of the due process complaint notice only references the 2023-24 school year (Dist. Ex. 10 at pp. 1-3).
[8] The parties convened for a prehearing conference on December 19, 2024, wherein the IHO denied the district's motion to dismiss for lack of subject matter jurisdiction (Tr. pp. 1-12).
[9] 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]).
[10] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[11] The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B., 2011 WL 4375694, at *6, quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
[12] The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]). In other words, the statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the June 1 deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Vaccination Requirements Applicable to All Students" at p. 4 [Off. of Student Support Servcs. Oct. 2023], available at https://www.nysed.gov/sites/ default/files/programs/student-support-services/vaccination-requirements-applicable-to-all-students-faq.pdf).
[13] 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 Succeed (Educ. Law § 4404[1][c]).
[14] Overall, the district has unduly focused on the distinction between SEIT services and SETSS in this matter. By State law and regulation SEIT services are typically not allowed for school-aged students (see Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]), whereas SETSS could permissibly be recommended for the student but are not defined in the State's continuum (see 8 NYCRR 2006). Given these factors, it is not helpful that the hearing record lacks more testimony or evidence that clearly defines the contours and features of SETSS (versus SEIT services) as understood by the parties. However, whether denominated as SEIT services or SETSS, the substance of the relief sought in the instant matter is the provision to the student of educational services by a special education teacher who assists the student in addition to the student's classroom program at the student's nonpublic school.
[15] The hearing record includes a November 28, 2023 progress report prepared by the student's provider at EdZone (see Parent Ex. K). It is unclear whether or not this progress report was among the reports considered by the November 2023 CSE. The hearing record does not include a February 2021 social history.
[16] According to the affidavit testimony of the EdZone educational supervisor, the student was "mandated to receive 10 hours per week of SEIT services" (Parent Ex. R ¶¶ 1, 6). According to the timesheets in the hearing record, the student received fewer than five hours per week of services (Parent Ex. Q at pp. 1-10).
[17] The parent withdrew her claim for district funding for OT services during the hearing (Tr. pp. 76, 96).
[18] The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Review of the district's request for review reflects that the factors raised by the district that warranted a reduction in the amount of funding the parent requested related to the 2022-23 school year (Req. for Rev. ¶¶ 26, 30, 36). Further, to the extent the district asserts that the quality and reliability of the parent's evidence (i.e., progress reports, contracts, timesheets and testimony) related to the provision of services to the student are equitable factors to be considered, that evidence was considered as part of the parent's prong II burden (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]). Therefore, I find that the district has not raised any valid equitable considerations related to the 2023-24 school year.
[19] Reevaluation was not requested in either of the parent's 10-day notice letters (Parent Exs. F-G).