Application of the New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-362

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., Esq.

Gulkowitz Berger LLP, attorneys for respondent, by Shaya 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 denied its motion to dismiss the parent's claims for lack of subject matter jurisdiction and ordered it to fund private services provided to the student during the 2024-25 school year together with a bank of compensatory education services. The district also seeks an order vacating the IHO's pendency determination. The appeal must be sustained to the extent indicated. 

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

In this case, the hearing record is sparse with respect to the student's educational history and individual needs leading up to the 2024-25 school year.  A CSE convened on May 2, 2024, found the student eligible to receive special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of May 2, 2024 (Parent Ex. C at p. 1; Dist. Ex. 8).^{[1], [2]}  The May 2024 IESP stated that, at the time of the CSE meeting, the student was parentally placed in a first-grade class at a nonpublic school; was performing below grade level academically; and was receiving special education teacher support services (SETSS) and speech-language therapy (Dist. Ex. 8 at pp. 1-2, 18).^[3]  The May 2024 CSE recommended that the student receive three periods per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute period per week of individual counseling services (id. at pp. 15-16).

On May 9, 2024, the parent completed a district form indicating that she had placed the student in a nonpublic school at her own expense and she wanted the student's special education services to continue to be provided for the next school year (Parent Ex. D at p. 2).  The parent added that she had not received notice that the district would provide providers for the student's services and that if the district did not provide services, she would be requesting that the district fund the providers she was able to secure on her own (id.).

The hearing record demonstrates that the student began receiving special education services on September 10, 2024 and began receiving speech-language therapy on November 18, 2024 (Parent Ex. H at pp. 1, 4).

On December 9, 2024 the parent signed an agreement with Always a Step Ahead, Inc. (Step Ahead), in which Step Ahead agreed to provide the student services consistent with the May 2024 IESP, specifically, SETSS at an hourly rate of $200.00 and "related services" at an hourly rate of $250.00 during the 2024-25 school year (Parent Ex. E).

A. Due Process Complaint Notice

In a due process complaint notice dated January 15, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A).  The parent asserted that the last program developed for the student was the May 2024 IESP which recommended SETSS, speech-language therapy, and counseling services (id. at p. 1).  The parent asserted that the district failed to implement the  student's services for the 2024-25 school year, which forced the parent to find her own providers to implement the student's services (id. at pp. 1-2).  As relief, the parent sought an order directing the district to fund the services obtained by the parent at the provider's contracted for rate (id. at p. 2).  The parent further sought compensatory education services for any mandated services that were not provided to the student during the 2024-25 school year (id. at p. 2).

In a due process response dated January 27, 2025, the district generally denied the allegations contained in the due process complaint notice and noted its intention to assert multiple affirmative defenses (see Dist. Due Process Response). 

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter.^[4]  In a motion to dismiss dated March 24, 2025, the district requested that the IHO dismiss the parent's due process complaint notice  on the ground that the IHO  lacked subject matter jurisdiction to adjudicate the parent's claims (Dist. Ex. 10).  The parent responded to the district's motion to dismiss in a combined statement that included her position on pendency and her opening statement (Parent Ex. K). The parent argued that the student had a right to pendency based on the May 2024 IESP (id. at pp. 1-2). Regarding the district's motion to dismiss, the parent requested that the IHO to deny the motion arguing that the IHO had authority to hear claims regarding IESP implementation (id. at pp. 3-4). The parent also provided her opening statement which summarized her claims, the evidence to be presented, and her requested relief (id. at pp. 4-5). 

On March 28, 2025, an IHO issued an interim order on pendency, wherein it was determined that the student's pendency program was based on the student's May 2024 IESP, which included recommendations that the student receive three periods per week of SETSS, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of individual counseling services (Interim IHO Decision).  It was reflected in the interim decision on pendency that the district was given the opportunity to respond on February 19, 2024 but did not respond nor provide a position regarding pendency (id.).

On April 7, 2025, the parties proceeded to an impartial hearing, which concluded on the same day (Tr. pp. 1-50).  In a decision dated May 7, 2025, the IHO noted the denial of the district's motion to dismiss (IHO Decision at p. 3; see Tr. p. 5).  Next, the IHO found that the district did not dispute that the student was entitled to special education services and failed to provide those services to the student for the 2024-25 school year, thereby denying the student a FAPE (IHO Decision at p. 6).  Utilizing a Burlington/Carter analysis, the IHO determined that the parent had met her burden of proving the appropriateness of the unilaterally obtained SETSS and speech-language therapy (id. at pp. 6-8).  Next, the IHO determined that equitable considerations weighed in favor of the parent's requested relief and found that there was no basis to reduce the hourly rates of the providers (id. at pp. 9-10).  Finally, the IHO determined that there was no dispute that the district failed to provide the student with the counseling services recommended in the May 2024 IESP, failed to provide the parent with a list of service providers, and failed to contact the parent to discuss how services may be obtained (id. at p. 11).  Based on these facts, the IHO found that the parent was entitled to a bank of ours of compensatory counseling services (id.).

As relief, the IHO ordered the district to directly fund three periods of SETSS per week at a rate not to exceed $200.00 per hour and two 30-minute sessions per week of speech-language therapy at a rate not to exceed $250.00 per hour for the 10-month 2024-25 school year, up to a maximum of 36 weeks less any amounts already paid pursuant to pendency, upon submission of invoices and dates of the provision of services (IHO Decision at p. 11).  In addition, the IHO ordered the district to fund a bank of compensatory education services equal to one 30-minute session per week of counseling services for the 2024-25 10-month school year, not to exceed 18 hours, less any amounts paid under pendency (id. at p. 12).  The IHO further ordered that until the district implemented the counseling services or the district identified and arranged for a provider for the parent to contact, the parent would be able to select a State licensed provider of her choosing at a reasonable rate consistent with the rates the district had paid to similarly qualified providers in the six months preceding the date of the IHO's Decision (id.).

IV. Appeal for State-Level Review

The district appeals asserting that the IHO erred in denying its motion to dismiss the due process complaint notice based on a lack of subject matter jurisdiction.  Next, the district asserts that the IHO erred in finding that the unilaterally-obtained SETSS and speech-language therapy services were appropriate.  Further, the district asserts that the IHO erred in finding that equitable considerations weighed in favor of the parent and did not warrant a reduction of the hourly rates charged by the Step Ahead.  Specifically, the district maintains that, if the case is not dismissed on subject matter jurisdiction or on the appropriateness of the services, the rate for SETSS should be reduced to a range between $93.00 and $103.00 per hour with a maximum cap of $125.00 per hour and that the rate for speech-language therapy services should be reduced to $62.50 per hour.  Next, the district claims that the IHO erred in awarding a bank of compensatory counseling services.  Accordingly, the district requests a reversal of the IHO's awarded relief.^[5]

In an answer, the parent argues to uphold the IHO's decision in its entirety, including the IHO's interim decision on pendency.

In a reply, the district alleges the parent's answer should be rejected because it does not comply with the practice regulations governing appeals.^[6]

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).^[7]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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., 554 F.3d at 252).  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, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "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 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., 694 F.3d at 184-85).

VI. Discussion

A. Subject Matter Jurisdiction

As an initial matter the district asserts that the IHO erred in denying its motion to dismiss the parent's due process complaint notice based on a lack of subject matter jurisdiction.

Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  Prior to the impartial hearing, the district filed a motion to dismiss the parent's due process complaint notice arguing that federal law confers no right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation (see Dist. Ex. 10). Thus, according to the district, the IHO lacked subject matter jurisdiction with respect to IESP implementation claims (id.).  On appeal, the district continues to argue that parents do not have the right to bring a due process complaint notice based on a failure to implement equitable services.

In numerous 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. 25-459; Application of a Student with a Disability, Appeal No. 25-458; Application of a Student with a Disability, Appeal No. 25-297; Application of a Student with a Disability, Appeal No. 25-295; Application of a Student with a Disability, Appeal No. 25-220; 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. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

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

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

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).^[8]

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

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).^[9]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.^[10]

After legislative amendments took effect in 2007 the State Department of Education issued guidance further interpreting Education Law § 3602-c after legislative amendments in 2007 took effect, which provides that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago and then dramatically intensified to tens of thousands of due process filings per year within certain regions of this school district in the last several years.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.^[11]

In its motion to dismiss, the district contended that the decision did not change the plain meaning of the Education Law and that under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services" (Dist. Ex. 10 at p. 4 [emphasis in the original]).  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

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

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).^[12]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or if 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 of when 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 permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 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" (id. at p. 7).^[13]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  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 go further 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 IHO's decision denying the district's motion to dismiss, due to a lack of subject matter jurisdiction, was correct and the district's appeal to overturn that decision is denied.

B. Unilaterally-Obtained Services

I next address the substance of the parties' dispute.  Preliminarily, the district does not assert that it failed to offer the student a FAPE or equitable services for the 2024-25 school year.  Therefore, the determination 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 Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

The crux of the dispute between the parties relates to the appropriateness of the SETSS and speech-language therapy services provided to the student at the student's general education nonpublic school during the 2024-25 school year.  Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied.  In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Step Ahead for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).^[14]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to the unilaterally obtained services, 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 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

Although not in dispute on appeal, a brief discussion of the student's needs is necessary to resolve the issue of whether the SETSS and speech-language therapy delivered by Step Ahead were appropriate for the student for the 2024-25 school year.

            The May 2024 IESP reveals that the student presented with below grade level academic skills and struggled in the classroom without direct support (Dist. Ex. 8 at p. 1).  The student also demonstrated difficulty focusing in the classroom and required a lot of prompts and redirection (id.). 

            In math, the May 2024 IESP indicated that the student struggled to stay focused "even when working" in a small group of four students and that when learning a new lesson she needed one-on-one instruction (Dist. Ex. 8 at p. 2).  In addition, the student "immediately shuts down" when she feels overwhelmed with new concepts and needed the use of visuals and diagrams to understand new concepts and benefitted from having her work broken down into smaller tasks (id.).  According to a special education progress report dated December 16, 2024 (SETSS progress report), the student was able to recognize and write numbers from one to 100, but  when asked to identify a number that was ten greater than another number, the student became confused and was unable to complete the task (Parent Ex. I at p. 1).  The SETSS progress report stated that the student struggled with skip counting and identifying number patterns which made it challenging for her to find the correct answer (id.).

            According to the May 2024 IESP, the student was reading below grade level, did not read fluently, and presented with difficulties in auditory processing which affected her ability to retain information (Dist. Ex. 8 at pp. 1-2).  The student exhibited delays in decoding and reading readiness skills demonstrated by difficulty segmenting and blending a variety of "cvc" word combinations in words, phrases, sentences, and in short "mini stories" on grade level (id. at p. 1).  The student had a difficult time distinguishing between "ch" and "sh" and with phonemic awareness drills and needed "consistent review of letters, sounds, blends, and diagraphs" (id. at p. 2).  The student presented with delays in comprehension skills displaying difficulty recalling and summarizing information (id. at pp. 1-2).  Additionally, the student displayed difficulty when answering "wh" questions and in predicting outcomes (id. at p. 2).  

The May 2024 IESP stated that when the SETSS provider was not in the room, the student struggled to complete her writing assignments "due to lack of understanding and distractions" and that the student needed help from the provider to organize her thoughts and produce a proper sentence (Dist. Ex. 8 at p. 2).^[15]

Socially and emotionally, the May 2024 IESP characterized the student as "overwhelmed easily" and indicated that she had difficulty "effectively communicating what she need[ed] help with" (Dist. Ex. 8 at p. 3).  The student was described as not wanting to complete work that was hard for her and that sometimes she refused to do work independently (id.).  The student presented with social/pragmatic delays characterized by difficulty responding and greeting others that she was "not fond of" and did not always "show flexibility" when playing with peers and needed support "with language" when she had a hard time compromising (id. at pp. 1, 3).  The parent reported that the student was "extremely anxious and refuse[d] to go to school almost daily" (id. at p. 3).  The May 2024 IESP also indicated that the student often asked to go to the nurse and would cry at her desk saying she missed her mom (id.).

            The May 2024 IESP identified strategies that would benefit the student in the classroom, including: visual cuing, visual models, positive reinforcement, repetition, chunking and simplification of directives, verbal preparation and modeling, prompting and redirection, and manipulatives (Dist. Ex. 8 at pp. 3-4).

2.Unilaterally-Obtained Services

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

Contrary to the district's arguments on appeal, there is sufficient evidence in the hearing record to support the IHO's determination that the SETSS and speech-language therapy provided to the student during the 2024-25 school year by Step Ahead were specially designed to address the student's unique needs (see IHO Decision at pp. 7-8). 

According to an employee of Step Ahead, whose position at the time of the hearing was a member of the agency's quality assurance team, the parent agreed to the provision of services by Step Ahead (Parent Ex. F at pp. 2-3).  In her testimony, the Step Ahead employee identified the student's SETSS and speech-language therapy providers by name and indicated that a "'check- form'" was sent to them and returned to the agency (id. at pp. 3-4).  In addition, the student's providers submitted a December 16, 2024 SETSS progress report and a January 8, 2025 speech-language therapy progress report (Parent Exs. I; J).^[16]

The December 2024 SETSS progress report identified the following math goals, on which the student was working during the school year: counting within 1000 and skip-counting by fives, tens, and 100s; understanding place value through hundreds; mentally adding and subtracting 10 or 100 to and from a given number between 100 and 900; using strategies to fluently add and subtract within 100; and using mental strategies to fluently add and subtract within 20 (Parent Ex. I at p. 2).  In addition, the progress report stated that the provider incorporated manipulatives "like base ten blocks" to assist the student during math lessons (id. at p. 5).

In response to the student's reading needs, the December 2024 SETSS progress report revealed that the provider developed six reading goals for the student including: reading with sufficient accuracy and fluency to support comprehension; applying grade-level phonics and word analysis in decoding words; asking and answering questions such as who, what, when, why, and how to demonstrate understanding of key details in a text; using information gained from illustration and words in print or digital text to demonstrate understanding of characters, settings, or plot; identifying the main purpose of a text; and knowing and using various text features (Parent Ex. I at pp 2-3).  The progress report stated that the provider used "various reading intervention programs" to support the student's reading development (id. at p. 5).

Turning to the student's struggles in writing, including difficulty in finishing writing assignments due to "being easily distracted without SETSS provider's support" and needing assistance organizing her thoughts, forming complete sentences, and ensuring her writing was coherent; the SETSS provider developed five writing goals that addressed: revising and editing written work; using sources to answer a question; writing narratives; using the conventions of writing; and producing complete sentences (Parent Ex. I at p. 3).  According to the progress report the student relied on the support of the provider to help her organize her thoughts, form complete sentences, and ensure her writing was coherent (id. at p. 3).

Regarding the student's reported "limited" language comprehension and difficulty with following multi-step directions and instructions, the SETSS progress report indicated that the provider helped the student by  breaking tasks into smaller steps, providing repetition, using visuals aids, and explaining concepts using vocabulary the student could easily understand (Parent Ex. I at p. 3).  The provider also encouraged the student to repeat instructions given by the teacher to reinforce understanding (id.). Further, the progress report noted that the student benefitted from pictures or color-coded words which helped the student to follow directions and instructions across all subject areas (id. at p. 5).  The provider developed three language comprehension goals that addressed the conventions of language when reading, writing, speaking and listening; determining the meaning of unfamiliar words and "multiple-meaning words and phrases" using context clues; and using words and phrases acquired through conversations, reading, being read to, and in responding to texts  (id. at pp. 3-4).

            With respect to the student's social emotional functioning, the SETSS progress report indicated that with the support and guidance of the SETSS provider, the student took pride in her work and felt a sense of "accomplishment and happiness" when it was finished and that the provider offered support to help the student "navigate the conversation and express herself" when she was having difficulty compromising with her friends (Parent Ex. I at p. 4).  The provider developed a social emotional goal for the student that addressed developing age-appropriate coping skills to manage her overwhelming feelings (id.).In addition, the SETSS progress report reflected that the provider developed two interpersonal relationship goals for the student that addressed the student's struggles with flexibility and compromising with her peers during discussions (Parent Ex. I at p. 4).  They included describing events with relevant details and expressing ideas and feelings clearly, and participating in collaborative conversations with diverse partners in small and large groups (id.).^[17]

            Although the district argues that there was little evidence on how SETSS were provided in the student's classroom, it is clear from the attendance records and accompanying session notes that SETSS sessions were provided during the school day (Parent Ex. H, see Parent Exs. I; J).  I am not convinced by the district's argument that this is a case where it was unclear how SETSS enabled the student to access her general education curriculum as, noted by the IHO, the parent presented unrebutted testimony that the student's SETSS were provided in the classroom (IHO Decision at p. 8, citing Tr. p. 24).^[18] 

            Turning to the speech-language therapy provided to the student by Step Ahead during the 2024-25 school, the parent testified that the student was "pulled out" for speech-language therapy  and the speech-language therapy session notes indicated the student received approximately one 30-minute session per week of therapy from November 18, 2024 through March 4, 2025 (Tr. p. 24; Parent Ex. H at pp. 4-9).  The session notes indicated that the speech-language pathologist focused her instruction primarily on decoding skills, reading comprehension, receptive language skills, sequencing, and writing skills (Parent Ex. H at pp. 4-9). 

The January 2025 speech-language therapy progress report noted the student's then-current speech-language therapy goals of improving reading readiness skills by identifying initial and final sounds in words; blending beginning, middle, and ending sounds using "CVC order"; and by using decoding and word recognition skills and of improving receptive language skills by following directives when presented with a variety of modifiers (Parent Ex. J at p. 2). 

According to the January 2025 speech-language progress report, in therapy the student worked on her reading readiness, decoding skills, comprehension, and expressive language (Parent Ex. J at p. 2).  The progress report stated that the speech-language pathologist used instructional strategies such as chunking and syllabication to assist the student when decoding more complex words in isolation and in short passages (id. at p. 1).  Regarding the student's struggles with recalling and summarizing information in short passages as well as responding to "wh" questions and predicting outcomes, the speech-language pathologist worked with the student on answering "wh" questions and identifying story elements following the passages or sentences presented (id. at p. 2).  Further, the student was encouraged to "visualize and draw the events of a story" using specific details, followed by summarizing the content in her own words (id.).  In addition, the speech-language pathologist used verbal, visual, and tactile support to assist the student in achieving her goals (id.).

The progress report stated that the student had demonstrated steady progress in both decoding and comprehension skills (Parent Ex. J at p. 2).  Specifically, the progress report noted the student had been increasingly able to apply decoding patterns and rules with guidance, showed gradual improvement in her ability to approach more complex words, and had become more consistent in her recognition of familiar word patterns (id.).  Regarding comprehension skills, the progress report stated that the student had made "notable progress" in responding to a variety of simple "wh" questions, was beginning to grasp the basic elements of stories (character, setting, problem, solution), and was making progress in retelling and summarizing stories more "effectively" (id. at pp. 2-3).

The speech-language therapy progress report revealed that socially, the student had demonstrated noticeable progress in that she now actively engaged with peers, participated in play, used more appropriate speech both in the classroom and during recess, and showed "growing comfort" and confidence in social interactions ( Parent Ex. J at p. 1).                                         

Based on the foregoing, while it would be preferable to have the testimony of the  SETSS providers and the speech-language pathologist at the impartial hearing, there is nonetheless sufficient documentary evidence to show that the student received SETSS and speech-language therapy and that such services addressed the student's identified needs related to language, and auditory processing, as well as reading, writing, and mathematics during the 2024-25 school year. 

Accordingly, I find a sufficient basis to sustain the IHO's finding that the parent met her burden that the unilaterally obtained SETSS and speech-language therapy were appropriate for the student and, moreover, looking at the SETSS and speech-language therapy services, as a whole, there was sufficient evidence to show that they were appropriate for the student for the 2024-25 school year.

C. Equitable Considerations

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

1. 10-day Notice

The district argues that the parent failed to provide the district with a 10-day notice of her intent to unilaterally obtain private services for the student during the 2024-25 school year.  The parent asserts that she was not required to provide the district with notice that she was unilaterally obtaining private services for the student because the statute applies to "a public school student's unilateral placement, not services," the student was not removed from a public school, and the statute does not allow for a reduction or denial of funding if the parent had not received the procedural safeguards notice.

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

As noted above, students receiving equitable services are considered dually enrolled, such that "pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in . . . programs for students with disabilities" ("Dual Enrollment Programs," available at https://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).  Accordingly, in this instance, the removal of the student from the public school was the parent's decision to privately obtain services for the student from Step Ahead.  According to the hearing record, those services began at the start of the 2024-25 school year on September 10, 2024 (Parent Ex. H at p. 1).  Therefore, the parent's assertion that the 10-day notice provision does not apply to unilaterally obtained services for student's parentally placed and receiving equitable services from the district is without merit.

Additionally, to the extent that the parent asserts that a reduction or bar to any costs awarded is not permissible because the hearing record does not include proof of delivery of the procedural safeguards notice to the parent, this argument is equally unavailing. The IDEA provides that an award of reimbursement may not be reduced or denied if the parent did not receive a procedural safeguards notice (20 U.S.C. § 1412[a][10][C][iv][I][bb]; 34 CFR 300.148[e][1][ii]; see 20 U.S.C. § 1415; 34 CFR 300.504).  However, in this instance, the May 7, 2024 prior written notice included information for obtaining a copy of the procedural safeguards notice (Parent Ex. C at p. 2) and the parent did not testify that she did not receive a copy of the procedural safeguards notice.

Nevertheless, the parent's May 9, 2024 letter requesting equitable services from the district included conditional language indicating her intent to privately obtained services at district expense if the district fails to provide the recommended services (Parent Ex. D at p. 2).  More specifically, the parent informed the district that she had not yet received any notice from the district that it will be "providing providers for [the student's] services," that she was "in the process of searching for [her] own providers, and that if the district did "not provide providers, [she] w[ould] be requesting that the [district] fund the providers [she] [is] able to secure" (id.).  The district does not respond to this evidence in its argument for a reduction based on the lack of a 10-day notice (Req. for Rev. ¶14).  Accordingly, although I am not convinced that a conditional notice stating a concern that had not yet manifested is in compliance with the statutory requirement for providing notice to the district prior to removal of the student so that the district may have an opportunity to address the concern, under the circumstances as they present themselves here, in an exercise of discretion I do not find that the lack of a proper 10-day notice warrants a reduction in funding for the privately obtained services.

2.Excessive Costs

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

Here, the parent entered into an agreement with Step Ahead by which the agency would provide the student with SETSS at an hourly rate of $200 and "related services at an hourly rate of $250 for the 2024-25 school year (Parent Ex. E).  A member of the quality assurance team at Step Ahead testified that she was not aware of the specific rate the agency paid to the student's SETSS provider; however, she testified that there was a range of rates paid to providers and SETSS providers were paid between $90.00 and $175.00 per hour and speech-language therapy providers were paid between $120.00 and $160.00 per hour (Tr. p. 32)

On the question of reasonable market rates, during the impartial hearing, the district submitted an October 2023 report by the American Institutes for Research (AIR report), May 2023 data from the United States Bureau of Labor Statistics (USBLS), and a July 2024 document titled "Related Services – Independent Provider Rate Schedule," and (see Dist. Exs. 1-3).  The IHO determined the AIR report and the data from the USBLS was not determinative on whether the rates charged by Step Ahead were excessive since the district did not present expert testimony to explain the report or how the data from May 2023 should be applied to services procured in September 2024 (IHO Decision at p. 9).  However, with respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report and USBLS data and the district's arguments on appeal offer some basis to conclude that the rates charged by Step Ahead for SETSS and speech-language therapy services were excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Step Ahead.^[19]

First, the AIR report draws data published by the USBLS, a United States government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 [N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education providers are paid in the New York City metropolitan region in a given year in which the data is published.^[20]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey, and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers and providers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2024 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/ oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

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

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

Fortunately, the USBLS data is not limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers and providers from across the spectrum including private schools, charter schools, and district special teachers.  The USBLS indicated that in May 2024 data annual salaries for " Special Education Teachers, All Other " ranged from $51,100 in the 10th percentile, $63,640 in the 25th percentile, $98,020 in the median, $156,300 in the 75th percentile, to $163,850 in the 90th percentile (see, e.g., https://www.bls.gov/oes/special-requests/oesm24ma.zip).

In my view, consideration of a range of wages is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees, and private industry expressed as a percentage of salary, and for private industry the overhead expenses for educational services costs was 28.2 percent (see Employer Costs For Employee Compensation (ECEC) – June 2024, available at https://www.bls.gov/news.release/archives/ecec_09102024.pdf).

The undersigned has little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.  I will take this into account when ordering equitable relief.^[21]

Here, Step Ahead charged $200.00 per hour for SETSS with between $90.00 and $175.00 per hour being paid to the student's specific providers (see Tr. p. 32; Parent Ex. E).  Because the member of the Step Ahead quality assurance team provided only a range of hourly rates paid to the SETSS providers I feel compelled to utilize the lower end of the range provided.  A rate of $90.00 per hour annualized is $105,300.00, a figure only slightly above the median, thus the $90.00 portion of the hourly rate being paid to the provider is not excessive.  However, the amount of indirect costs above the provider's hourly rate is $110.00 per hour or 55 percent of the $200.00 hourly rate charged by Step Ahead for SETSS (Parent Ex. E at p. 1).  This falls far above the 28.2 percent identified in the USBLS data.

Considering that the Step Ahead quality assurance team member only identified general categories of indirect costs that factored into the hourly rate charged without providing the actual overhead costs applied to the rate charged for the student or explaining why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence in the hearing record leads me to the conclusion that the parent arranged for SETSS from Step Ahead at an excessive cost, as the district argues, and that it is more than what the district should be required to pay (see Tr. p. 31; Parent Ex. F at p. 2).  On the other hand, some indirect or overhead cost is reasonable.  Calculating for overhead costs equating to 28.2 percent of the overall rate, and the provider's wage as a known factor, the total rate would compute to $125.35 per hour.  Accordingly, the district will be ordered to fund the student's SETSS for the 10-month 2024-25 school year, at a rate of $125.35, subject to the parent providing the district with proof of the student's attendance and invoices from Step Ahead.

As for the speech-language therapy services provided by Step Ahead, the AIR report does not adequately support the district's contention that the contracted rate was excessive.  As discussed above, although the title of the AIR report is "Hourly Rates for Independently Contracted Special Education Teachers and Related Service Providers," the report only includes a methodology and charts for determining rates for special education teachers (see Dist. Ex. 1).  The district has not explained how the undersigned should apply the report to a rate for speech-language therapy services, and it does not appear relevant to determining a rate for speech-language therapy services.  Nevertheless, looking at the May 2024 USBLS data for "Speech-Language Pathologists," unlike for special education teachers, the data set includes hourly rates for speech-language pathologists in the New York-Newark-Jersey City metropolitan area, the USBLS indicated that hourly rates ranged from $35.92 in the 10th percentile, $41.49 in the 25th percentile, $60.74 in the median, $66.02 in the 75th percentile, to 79.59 in the 90th percentile (see, e.g., https://www.bls.gov/oes/special-requests/oesm24ma.zip).  As noted, above, the Step Ahead member of the quality assurance team testified that rates paid to the related services providers at Step Ahead ranged from $120 to $160 per hour, which appear far in excess of the highest rates noted in the USBLS data.  Accordingly, rather than award the full cost, a reduction will be made taking into account the median hourly rate identified in the USBLS data for speech-language pathologists plus a similar overhead cost as applied above, with the total amount coming out to $84.60 as a reasonable cost for the speech-language therapy services delivered to the student.

D. Compensatory Education

Tunring to the IHO's award of compensatory counseling services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]).  Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).

The district asserts that the IHO erred in awarding a bank of compensatory counseling services.  In this instance, the parent arranged for the delivery of services with a private agency, Step Ahead, based on the student's May 2024 IESP, which included SETSS, speech-language therapy services, and counseling services (Parent Ex. E at p. 1; see Dist. Ex. 8 at pp. 15-16).  In this matter, there was no explanation in the hearing record as to why Step Ahead did not deliver contracted for counseling services to the student.  Where the parents engaged in the remedy of self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parents, especially here where the parents entered into a contract with Step Ahead to deliver services set forth in the May 2024 IESP and there is no further development of the record explaining why such services were not provided (see, e.g., Application of the Dep't of Educ., Appeal No. 25-027).  Accordingly, the hearing record does not support an award of compensatory counseling services and the IHO's award of counseling services is reversed.

VII. Conclusion

For the reasons described above, the IHO possessed subject matter jurisdiction to adjudicate the parent's claims and, as such, the district's appeal of the IHO's denial of its motion to dismiss is denied.  Having determined that the parent met her burden to show that the SETSS and speech-language therapy delivered to the student by Step Ahead during the 2024-25 school year were appropriate, the district's appeal on that issue is denied.  However, I find the Step Ahead hourly rate for SETSS and speech-language therapy services was excessive and must be reduced. In addition, the student is not entitled to compensatory counseling services for the reasons set forth above.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated May 7, 2025, is modified by reversing those portions which directed the district to fund SETSS provided to the student during the 2024-25 school year at an hourly rate of $200.00 and speech-language therapy services to the student at a rate of $250 per hour, and directed the district to fund a bank of compensatory counseling services;

IT IS FURTHER ORDERED that the district shall directly fund the costs of the student's SETSS and speech-language therapy services delivered by Step Ahead at rates not to exceed $125.35 per hour for SETSS and $84.60 per hour for speech-language therapy services, upon the submission of proof of the delivery of the services to the student during the 2024-25 school year.

Dated: May 19, 2026

Steven Krolak

STATE REVIEW OFFICER

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Footnotes

[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).

[2] Both parties submitted a copy of the prior written notice dated May 7, 2024 (see Parent Ex. C; Dist. Ex. 7).  For purposes of this decision only the parent's exhibit will be cited.

[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] It appears that two IHOs with OATH presided over this matter; one IHO issued a March 28, 2025 interim decision on pendency and the other presided over the impartial hearing portion and issued a final decision (compare Interim IHO Decision at p. 1, with Tr. pp. 1-50, and IHO Decision at pp. 1, 12).

[5] The district also asserts that the IHO erred in ordering pendency based on the student's May 2024 IESP; however, the district does not identify an alternative pendency program for the student.  Additionally, it is worth noting that the IHO March 2025 interim decision merely directed that the student's pendency program is based on the May 2024 IESP and consisted of three periods per week of SETSS, two 30-minute sessions per week of speech-language therapy services, and one 30-minute session per week of counseling services.  There does not appear to have been a dispute as to implementation of the student's pendency program during the hearing (see Tr. p. 6). Accordingly, pendency will not be further addressed on appeal.

[6] Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).  Here, although the district raises legitimate concerns regarding the parent's answer's compliance with the practice regulations, I decline to exercise my discretion to dismiss the parent's answer.

[7] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.  The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).

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

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

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 became effective 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, given that 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 explains further:

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 amendments made by the State Legislature were intended to clarify the forum where disputes could be brought, not to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404.

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

Questions and Answers

1. What does "dual enrollment" mean?

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

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

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

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

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

[14] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Access to Success (Educ. Law § 4404[1][c]).

[15] A January 2025 speech-language therapy progress report (speech-language progress report), identified similar needs in the areas of reading, writing, and language as were reported in the May 2024 IESP (compare Parent Ex. J, with Dist. Ex. 8).

[16] The progress reports do not identify Step Ahead and instead, only reference the name of the student's nonpublic school (Parent Exs. I; J).

[17] The district argues that the student's social deficits went unaddressed because the parent did not contract with Step Ahead to provide counseling services.  I do not find this argument persuasive as the SETSS delivered to the student assisted the student socially within the classroom (Parent Ex. I at p. 4).  It is also well settled that the legal standards by which unilateral placements, or unilaterally obtained services, are judged expressly allow for flexibility and consideration of the totality of the circumstances rather than rigidly proscribed criteria (see Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65 ["No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits . . [and] . . . 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"]). Thus, a failure to furnish every special service necessary for the student, including related services, 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).

[18] The district also argues that there was no evidence of the student's progress during the 2024-25 school year, however, while progress is a relevant factor to be considered (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]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement, or in this cases unilateral services, are adequate (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]; see also Frank G., 459 F.3d at 364).

[19] It appears that the "Rate Schedule" offered by the district lists rates that the district pays to independent providers (see Dist. Ex. 3); however, there is no indication that a parent could access such rates when obtaining services from private companies on the private market.  Accordingly, I do not find this evidence persuasive.

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

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