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Special Education Law
OSRMixed ResultAppeal No. 25-374

Application of the New York City Department of Education

March 31, 2026·Justyn P. Bates·New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-374

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.

Kerben Law Group, PLLC, attorneys for respondent, by Janaya S. Kerben, Esq.

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to reimburse the parent for her daughter's private services delivered by Educational Services of Brooklyn Inc. (ESOB) for the 2024-25 school year.  The appeal must be sustained in part.  The matter is remanded to the IHO for further administrative proceedings.

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

On September 18, 2024, a CSE convened, found the student eligible for special education services as a student with a learning disability, and developed an IESP with an implementation date of October 2, 2024 (see Parent Ex. C).  The September 2024 CSE recommended three periods per week of direct group special education teacher support services (SETSS) to be implemented in a separate location (Parent Ex. C at p. 8).[1]  In addition, the student was recommended for testing accommodations to include extended time and separate location/room (id. at p. 9).  The September 2024 IESP noted that the student was parentally placed in a nonpublic school (id. at p. 11).

In a "letter of intent" dated May 11, 2024, the parent notified the district that she intended to place the student in a nonpublic school at her expense for the 2024-25 school year and wanted her daughter's special education services to continue to be provided (Parent Ex. D at p. 1).

On September 5, 2024, the parent electronically signed an agreement with ESOB for the implementation of SETSS for the student for the 2024-25 school year (see Parent Ex. F).

A. Due Process Complaint Notice

In a due process complaint notice dated December 16, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year in failing to implement the student's special education program (see generally Parent Ex. A).  According to the parent, the CSE last developed an IESP for the student on September 18, 2024, in which the CSE recommended three periods per week of SETSS and "related services" (Parent Ex. A at p. 1).  The parent alleged that the district failed to implement the student's recommended services, and as a result the parent "was forced" to seek out a private provider (id. at pp. 1-2).  As relief for the alleged denial of a FAPE for the 2024-25 school year, the parent sought direct funding of three periods per week of SETSS at "the contracted rate" (Parent Ex. A at p. 2).

The district submitted a due process response dated December 21, 2024 which generally denied the material allegations contained in the due process complaint notice and asserted "applicable defenses" including that the parent failed to timely send a written request for equitable services by June 1, 2024 (see Dist. Response to Due Process Compl. Not.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on May 7, 2025 (Tr. pp. 1-49).[2]  In a decision dated May 10, 2025, the IHO found that the district failed to implement the IESP which denied the student a FAPE for the 2024-25 school year and that the relief sought by the parent was appropriate (IHO Decision at pp. 1, 3-4).[3]

Next, the IHO found that the student was entitled to those services in the IESP from the date of implementation – October 2, 2024 (IHO Decision at p. 3).  The IHO discussed the defenses asserted by the district in its due process response stating that they were "boilerplate" and that the defenses were made "without regard to whether there [was] any factual, meritorious, or legal basis" (id.).  Accordingly, the IHO held that the defenses asserted by the district were "considered waived" in accordance with her omnibus interim order (IHO Decision at p. 3; see IHO Ex. I).  The IHO further stated that the district failed to present evidence to establish an appropriate rate for the services (IHO Decision at pp. 3-4).  Moreover, the IHO stated that the district had a "duty to this student" which did "not end" when the due process complaint notice was filed (id. at p. 4).  The IHO stated that "[p]roceeding without regard to the facts or for the sole purpose of obtaining a favorable outcome without consideration of the [district's] obligations to the student, appears to be against the intent and spirit of the IDEA and State Law" (id.).

As relief, the IHO ordered the district to fund three periods per week of group SETSS for the 2024-25 school year beginning on October 2, 2024 and at a rate not to exceed $200 per hour, less any counsel fees (IHO Decision at p. 4).  The IHO directed that any services not provided to the student by May 31, 2026 would expire (id.).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in awarding relief to the parent.  First, the district argues that the IHO lacked subject matter jurisdiction to determine the parent's claims.  The second issue raised by the district is that the IHO erred in finding that the parent requested equitable services by June 1, 2024.  Third, the district argues that the IHO failed to apply the Burlington/Carter analysis to determine whether the parent's requested relief was appropriate.  The district asserts that if the Burlington/Carter framework was used, the parent would not be able to meet her burden to demonstrate that the unilaterally obtained services were appropriate.  The fourth and last issue for review is the district's contention that equitable considerations favored the district, and that if the services from ESOB for the 2024-25 school year were found appropriate for the student, the SETSS rate should be reduced on the grounds that the rate was excessive and the parent failed to submit a 10-day notice of her intent to obtain services for the student.

In an answer, the parent argues that the IHO had jurisdiction to determine her claims under Education Law § 3602-c, that the Burlington/Carter standard was not applicable to implementation claims, that the relief awarded by the IHO was appropriate, and equitable considerations weighed in favor of the parent.[4],[5]  The district did not submit an answer to the cross-appeal.

V. Applicable Standards

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

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[6]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[7]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

A.        Preliminary Matters

1.         Subject Matter Jurisdiction

As a threshold matter, it is necessary to address the issue of subject matter jurisdiction raised by the district in its request for review.  I note that 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]).  Although not explicitly argued at the impartial hearing before the IHO, a lack of jurisdiction "can never be forfeited or waived" U.S. v. Cotton, 535 U.S. 625, 630 [2002]).  The district argues on appeal that there is no federal 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.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-220; 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. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

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

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

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

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

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

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

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

In its appeal, the district contends 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."  Consistent, in part, with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

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

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

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 [2d Cir. 2009], quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[13]  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

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

2.         June 1 Deadline

Turning to the district's argument that the parent failed to satisfy the requirement that a parent request services prior to June 1, the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available athttps://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available athttps://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

In addition, there is no allegation raised by the parent on appeal that the district did not properly raise a June 1 affirmative defense, nor does the parent allege that through the district's actions it waived the statutory requirement for written notice from the parent for equitable services (see Application of the Bd. of Educ., Appeal No. 18-088).[14]

Moreover, there is no explicit prohibition set forth in Education Law § 3602-c against parents authorizing a third-party to deliver a June 1 request for dual enrollment services to a school district on the parents' behalf.  State guidance has indicated in a question and answer format: "Must each parent file a request for services with the district of residence? Yes. Parents must file their requests for services with the district of residence. These requests may be routed through the nonpublic school in which the pupils are enrolled and then submitted collectively in accordance with proper timelines." ("Dual Enrollment Programs" available at  https://www.p12.nysed.gov/nonpub/handbookonservices/dualenrollment.html).  Nor is there a requirement in the statute that the parent must use a particular type of signature or is precluded from the use of a conformed signature (see Educ. Law § 3602-c[2]).  However, the statute is clear that services shall be provided to students who attend nonpublic schools within the district "upon the written request of the parent or person in parental relation" (id.).

Here, the district admits that it received the parent's June 1 request for dual enrollment services but objects to the document because it was sent from an "unknown e-mail address not associated with the parent" and there was no evidence in the hearing record that the parent authorized the third-party to send the notice to the district (Req. for Rev. ¶¶ 7-8; Tr. pp. 20, 46; see Parent Ex. D).  The district further asserts that the parent failed to offer testimony about the June 1 request (see Tr. pp. 1-49).  However, as described above, there is no prohibition in the statute regarding a third party delivering the parental request to a school district, and I find the available evidence in this case shows that the parent filled out and signed the written request that it was delivered to the district on May 28, 2024 (see Parent Ex. D). The district has not provided any evidentiary basis to conclude otherwise.  Accordingly, I find the district's argument that a third party improperly sent the June 1 parental request to be without merit.

3. Unilaterally Obtained Services—Legal Standard

Next, I will address the parties' dispute over the appropriate legal standard for assessing the parent's entitlement to relief.  As indicated above, the district contends that the IHO should have applied the Burlington/Carter three-part test, while the parent contends that the Burlington/Carter framework does not apply to cases involving the implementation of an IESP.  The district argues that the IHO failed to apply any legal analysis of the appropriateness of the unilaterally obtained services.  Conversely, the parent argues that she was not seeking tuition reimbursement for a unilateral placement but was "instead focused on compelling the [district] to fulfill its obligation under the [IESP]" (Answer ¶¶ 18, 21).

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 student's 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 SETSS from ESOB 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 who 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 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 (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[15]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Here, neither party has appealed the IHO's finding that district failed to offer the student a FAPE for the 2024-25 school year and that the district did not offer any evidence to show that it implemented the services called for by the student's IESP (IHO Decision at p. 3).  Accordingly, this finding has become final and binding on the parties and will not be further reviewed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

With regard to an assessment of the unilaterally obtained services, the IHO cited to several legal authorities in footnotes, but did not identify the legal framework employed in her analysis of the parent's request for direct funding of the unilaterally obtained SETSS from ESOB (see IHO Decision at pp. 2-4).  The IHO findings were that the student was entitled to the services in the September 2024 IESP, that the district had an obligation to implement the services and failed to do so, and then simply concluded that the private services obtained by the parent from ESOB were appropriate (id. at pp. 3-4).  These findings were made without any citation to the evidence in the hearing record and without any analysis of the student's needs, evidence of specially designed instruction provided by ESOB, or progress therefrom (id.).  In essence it could be likened to default judgment in favor of the parent, which is not permissible where the nature and appropriateness of the relief sought by the parent is disputed.  Based on the foregoing, I find that the IHO erred in failing to apply the Burlington/Carter three-part test to assess whether the parent was entitled to public funding of the cost of the SETSS that the parent unilaterally obtained from ESOB and whether equitable considerations supported the parent's request for relief. 

When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).  Here, as the IHO has not yet ruled on whether the parent met her burden to prove that the privately-obtained special education services were appropriate or whether equitable considerations would support the parent's request for relief, I will remand the matter to the IHO to address these issues in the first instance.

4. Evidence Preclusion

The district argues on appeal that the IHO erred in excluding all of its documentary evidence after the hearing had concluded, reasoning that the evidence was not relevant.  The district's documentary evidence consisted of the following: District exhibit 1: American Institute for Research (AIR) report dated October 2025; District exhibit 2: a copy of a decision issued in Application of a Student with a Disability, Appeal No. 24-222; and District exhibit 3: Occupational Employment and Wage Statistics Report dated May 2022 (see generally Dist. Exs. 1-3).

At the beginning of the impartial hearing, the IHO discussed the admission of the parties' evidence into the hearing record starting with the district's exhibits (Tr. p. 4).  The parent representative had no objections to the district's evidence (id.).  Then, the IHO asked the district to explain the relevancy of its proposed exhibits (id.).  In response, the district representative stated that the documents were relevant to the "appropriate SETSS rate" (id.).  Next, the IHO asked the district to explain specifically what the IHO should be reviewing from the proposed exhibits to which the district representative stated that the IHO needed to read the full documents in order to analyze the AIR report (Tr. pp. 5-6).  The district representative directed the IHO to a specific page in the AIR report for a range in hourly SETSS rates (Tr. p. 6).  The district representative inquired whether the district exhibits would be admitted into evidence and the IHO stated she would "reserve decision" with respect to the district's exhibits (Tr. pp. 7-9).  The district representative responded that if the IHO would not determine if the exhibits were admitted or excluded from evidence, he asked that the IHO recuse herself from the matter as there was an appearance of favoritism toward the parent (Tr. pp. 9-10).  Further, the district representative stated that the district was "prejudiced" without knowing if the exhibits were in evidence, and therefore, prevented a fair impartial hearing (Tr. pp. 10, 23-24).  The discussion ended and the IHO reviewed the parent exhibits and the district's objections thereto (Tr. pp. 11-12, 24).  The parent's exhibits with the exception of Parent exhibit B which was withdrawn were admitted into evidence (Tr. pp. 2, 19).

In the final decision, the IHO precluded district exhibits 1-3 from evidence (IHO Decision at p. 2).  The IHO reasoned that the district failed to establish the relevance of the rate study and wage statistics, did not explain the purpose of the documents, and did not establish the reliability of any purported methodology that the district suggested might be used to calculate an appropriate rate (id.).  Additionally, the IHO found that the district's argument regarding a prior SRO decision (Application of a Student with a Disability, Appeal No. 24-222) was "misplaced" as the district failed to explain how that case was applicable to the present matter (id.). However, in a one-line statement with respect to equitable considerations, the IHO then went even further and stated that the district failed to present evidence of a rate for the SETSS (id. at pp. 3-4).  

In this case, two of the district's exhibits are relevant and the IHO erred in holding otherwise and precluding the district from the opportunity to make its case in mitigating the relief sought.  A cursory examination of district exhibits 1 and 3 reveal that they included wage information published by the United States Bureau of Labor Statistics, a U.S. government agency,  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. Wage data published by a government agency in the same locale and labor market where the events of a case have transpired is not irrelevant. While the IHO might not have found it the evidence persuasive or sought a more comprehensive explanation, that is not a basis for preventing the district from presenting its case altogether.  The error was compounded when the IHO then went further and determined that the district failed to present evidence on rates, which is untrue.  Instead, I find that the district exhibits 1 and 3 were relevant and must be considered upon remand with respect to equitable considerations should the IHO reach that issue (see Application of a Student with a Disability, Appeal No. 25-132; Application of a Student with a Disability, Appeal No. 25-165; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-037).  District exhibit 2, an SRO decision, is a matter of public record and both parties and administrative hearing officers may cite to them without the need for formal inclusion in the evidentiary record.  Thus, the district was not prejudiced by the IHO's decision excluding district exhibit 2.

Based upon the foregoing, I find that the IHO improperly excluded relevant and material evidence in this matter and the matter must be remanded this additional basis (see 8 NYCRR 200.5[j][3][xii][c]).   Upon remand, the IHO is directed to conduct a fact-specific analysis of the appropriateness of the unilaterally-obtained services from ESOB and if found to be appropriate, weigh equitable considerations as raised by the parties related to the 2024-25 school year using the documentary evidence that has been admitted to the hearing record.  In addition, if the IHO finds that the parent prevails on the second Burlington/Carter criterion and therefore reaches the issue of equitable considerations, the IHO must consider and issue a ruling on the district's additional defense, namely, that the parent failed to provide the district with a 10-day written notice stating the parent's intent to unilaterally obtain private services  from ESOB without the consent of the district and seek reimbursement or funding from the district.

VII. Conclusion

As the IHO did not apply the correct legal standard as described above, did not address the appropriateness of the parent's unilaterally-obtained services from ESOB, and precluded the district from asserting defenses relevant to equitable considerations, this matter must be remanded to the IHO to make determinations in accordance with this decision.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO decision dated May 10, 2025 is vacated; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the services unilaterally obtained from ESOB by the parent were appropriate for the student for the 2024-25 school year and, if so,  the extent to which equitable considerations weigh in favor of granting funding for the costs of the parent's unilaterally-obtained services; and

IT IS FURTHER ORDERED that in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed.

Footnotes

[1] 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, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125).  For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).

[2] The IHO issued an Omnibus Interim Order which set forth the IHO's rules for the conduct of the impartial hearing (see IHO Ex. I). 

[3] During the impartial hearing the IHO would not make a ruling on whether the district's evidence would be admitted into the hearing record to which the district objected and asked for the IHO's recusal, which the IHO denied (see Tr. pp. 4-11, 23-24).  The IHO excluded the evidence from the district (IHO Decision at p. 2).

[4] Although labeled as a cross-appeal, the parent's cross-appeal does not challenge any portion of the IHO's decision and accordingly is not truly a cross-appeal.  A respondent may cross-appeal from all or a portion of the decision of an IHO; however, a cross-appeal must "specify the reasons for challenging the impartial hearing officer's decision" (8 NYCRR 279.4[f]).  As the parent is not challenging any portion of the IHO's decision, the parent has not submitted a proper cross-appeal.

[5] Of note, the parent did not serve and file a Notice of Intention to Cross-Appeal (8 NYCRR 279.2[d]), Notice of Request for Review (8 NYCRR 279.3), or an affidavit of service demonstrating the date in which service was made of the answer (8 NYCRR 279.5[c]).  The parent did include an email sent to the district that attached the answer and cross-appeal and an automated email response that confirmed "receipt of email and constitute[d] proof of service." 

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

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

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

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

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

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

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

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

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

Questions and Answers

1. What does "dual enrollment" mean?

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

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

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

[12] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom.  There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations 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] The statute itself is not drafted in jurisdictional terms insofar as it creates a written notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the statutory deadline (Educ. Law § 3602-c[2][a]).  The Second Circuit has held that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" and that a waiver will be implied if "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).  The statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the statutory deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Frequently Asked Questions About Legislation Removing Non-Medical Exemptions from School Vaccination Requirements" Follow-Up, at p. 5 [DOH/OCFS/SED Aug. 2019], available athttps://www.health.ny.gov/prevention/ immunization/schools/school_vaccines/docs/2019-08_vaccination_requirements_faq.pdf).

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