STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-393
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 Ryan P. Stoner, Esq.
Gulkowitz Berger, LLP, attorneys for respondent, by Shaya M. Berger, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the district) appeals from the decision of an impartial hearing officer (IHO) which ordered it to fund the costs of respondent's (the parent's) son's private special education teacher support services (SETSS) and speech-language therapy services delivered by Always A Step Ahead, Inc. (Step Ahead) for the 2024-25 school year. The appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[a]). 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
With respect to the student's educational history, the hearing record is sparse. Briefly, a CSE convened on March 8, 2024, and developed an IESP for the student with a projected implementation date of April 2, 2024 and a projected annual review date of March 8, 2025 (see Parent Ex. B at p. 1). Finding that the student remained eligible to receive special education as a student with a speech or language impairment, the March 2024 CSE recommended that the student receive three periods per week of SETSS in a group (separate location), two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual occupational therapy (OT) services (id. at pp. 1, 8).[1], [2]
The evidence in the hearing record indicates that, on May 14, 2024, the parent executed a document to notify the district that the student was being placed in a nonpublic school for the 2024-25 school year at parent expense; the document also indicated that the parent wanted the district to provide the student's "special education services," that the parent had "not yet received any notice that the [district] w[ould] be providing providers" to deliver the student's services, and that, if the district did not assign providers, she would seek district funding for the costs of private providers (Parent Ex. D at p. 2).[3], [4] Evidence in the hearing record reflects that the executed form was sent by a third party email to a district CSE and the parent on May 14, 2024 (id. at p. 1).
Thereafter, on or about December 5, 2024, the parent electronically executed a document with Step Ahead, which indicated that she was "aware that the rate" for SETSS was $200.00 per hour and that the rate for related services was $250.00 per hour and that, if the district did not fund the services, she would be "liable to pay for them" (Parent Ex. E at pp. 1-2).[5], [6] In addition, the Step Ahead document reflected that the "services being provided to [the student we]re consistent with those listed" in the student's March 2024 IESP (id. at p. 1). According to the document, the parent agreed that, if the student's services increased or decreased after the "signed date," then those services were "agreed upon as well" (id.). The document further indicated that it memorialized the "agreement" between the parent and Step Ahead for the delivery of services to the student for the entire 2024-25 school year (id.).
A. Due Process Complaint Notice
By due process complaint notice dated January 15, 2025, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) and "equitable services" for the 2024-25 school year (Parent Ex. A at pp. 1-2). According to the parent, the student's March 2024 IESP represented the last-agreed upon IESP, which included a recommendation for three periods per week of SETSS, two 30-minute sessions per week of OT, and two 30-minute sessions per week of speech-language therapy services (id. at p. 1). The parent noted that the special education recommendations in the March 2024 IESP were "sufficient and adequate services" to address the student's "academic, social and emotional issues" and to enable the student to make progress and offered an "appropriate education" (id.). In addition, the parent indicated that she sought an order directing that the March 2024 IESP services constituted the student's "educational program for the 2024-2025 school year," and further noted that she had not "received any other educational program other than the IESP" (id.).
Next, the parent indicated that, because the district had failed to assign any providers to deliver the March 2024 IESP services to the student during the 2024-25 school year, she arranged for private providers to deliver the "services on the IESP" for the 2024-25 school year (Parent Ex. A at p. 1). The parent noted that, as relief, she was seeking an order directing the district to "fund any provider the parent [wa]s able to obtain for any service on the IESP to be provided in the 2024-2025 school year at the rate such provider charge[d] for their services" (id. at pp. 1-2). Additionally, the parent requested pendency services through the issuance of an order, as well as an order "awarding all services recommended on the IESP," "payment to the student's providers [or] agencies for the provision of all services awarded," and compensatory relief that may be appropriate for the district's failure to deliver services to the student (id. at p. 2).
B. Events Post-Dating the Due Process Complaint Notice
On February 19, 2025, a CSE convened, and developed an IESP for the student with a projected date of implementation of March 3, 2025 and a projected annual review date of February 19, 2026 (see Dist. Ex. 8 at p. 1). Finding that the student remained eligible to receive special education as a student with a speech or language impairment, the February 2025 CSE recommended that the student receive three periods per week of SETSS in a group (separate location), two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT services (id. at pp. 1, 12).
C. Impartial Hearing Officer Decisions
On March 28, 2025, an IHO executed a "Pendency Order," indicating that the student was entitled to receive the following as pendency services: three periods per week of SETSS, two 30-minute sessions of individual OT, and two 30-minute session of individual speech-language therapy services (all on a 10-month basis) (Interim IHO Decision at p. 1).[7] According to the pendency order, the district "was given an opportunity to respond on [February 19, 2025] and did not respond or provide its position" with respect to the student's pendency services (id.).
On April 7, 2025, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-49).[8] In a decision dated May 13, 2025, the IHO found that the district failed to implement the special education services recommended in the March 2024 IESP, and thus, the district failed to provide the student with equitable services for the 2024-25 school year (see IHO Decision at pp. 3-6). With regard to the parent's unilaterally-obtained SETSS and speech-language therapy delivered by Step Ahead, the IHO determined that the parent sustained her burden that the services were "tailored to meet [the s]tudent's unique educational needs," noting more specifically that the hearing record contained progress reports for both SETSS and speech-language therapy services that identified, respectively, the student's needs and described how those services provided specially-designed instruction to meet those needs (id. at pp. 6-8). Finally, turning to equitable considerations, the IHO found that the district's evidence regarding reasonable rates for SETSS and speech-language therapy was not persuasive, the parent cooperated with the CSE, the parent timely notified the district of her intention to seek services, and overall, equitable considerations weighed in favor of the parent's requested relief (id. at pp. 8-10). The IHO ordered the district to fund the costs of the parent's selected providers from Step Ahead at the contracted rates (i.e., $200.00 per hour for SETSS and $250.00 per hour for speech-language therapy) (id. at p. 10).
IV. Appeal for State-Level Review
The district appeals, arguing initially that the IHO erred by denying the district's motion to dismiss the parent's claims based on a lack of subject matter jurisdiction. Next, the district argues that the IHO erred by finding that the parent sustained her burden to establish the appropriateness of the SETSS and speech-language therapy services delivered to the student by Step Ahead during the 2024-25 school year. The district also contends that the IHO erred by finding that equitable considerations weighed in favor of the parent's requested relief and, as a final point, argues that the IHO erred by ordering pendency services for the student. The district seeks to reverse the IHO's findings.[9]
In an answer, the parent responds to the district's allegations and generally argues to uphold the IHO's decision in its entirety.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[10] "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.).[11] 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 Matter—Subject Matter Jurisdiction
As an initial matter, I will address the district's assertion that the IHO erred by failing to dismiss the parent's due process complaint notice based on the absence of subject matter jurisdiction in this case. The district raised the argument via motion to dismiss at the impartial hearing, and the IHO denied the district's motion on the record (see Tr. pp. 4-5; Parent Ex. K at pp. 3-4; Dist. Mot. to Dismiss at pp. 2-4; see also IHO Decision at p. 3).
Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues that there is no federal right to file a due process claim regarding services recommended in an IESP and State law only provides for review of a CSE's recommendations, "not how or if the CSE's recommendation was implemented" (see Req. for Rev. ¶ 9).
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. 25-343; Application of a Student with a Disability, 25-127; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[12]
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).[13] 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.[14]
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.[15]
As noted, in its request for review, the district contends that the Education Law and federal regulation permit for the review of the CSE's recommendations, but not "how or if the CSE's recommendation was implemented." Regarding equitable considerations, the district relatedly contends that the hourly rates for the Step Ahead providers—generally referred to as an "enhanced rate"—were excessive. 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]).[16] 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 p. 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at p. 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[17] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's appeal seeking dismissal of the due process complaint notice and subsequent appeal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Unilaterally Obtained Services
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]).[18] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student Needs
Generally, while the student's needs are not in dispute, a review thereof facilitates the discussion of the issue to be resolved, namely, whether the parent sustained her burden to establish the appropriateness of the SETSS and speech-language therapy services delivered by Step Ahead during the 2024-25 school year and whether those services provided the student with specially designed instruction to meet his needs.
In this matter, evidence of the student's needs is primarily found as reported in the March 2024 IESP. Initially, the March 2024 IESP reflects some of the student's testing results obtained through the administration of the Stanford-Binet Intelligence Scales—Fifth Edition (SB-5) to the student in February 2022 (see Parent Ex. B at p. 1). At that time, the student achieved a full-scale intelligence quotient (IQ) of 106, which fell within the average range (id.). The IESP also noted that the student obtained a nonverbal IQ in the high average range, and a verbal IQ in the average range; however, it was noted that the "significant 12-point discrepancy" between his nonverbal IQ and verbal IQ "suggest[ed] that [the student] m[ight] express his intellect somewhat better via nonverbal channels than verbal ones, although both seemed adequately developed" (id.).
The March 2024 IESP further reflects that, based on an administration of the Wechsler Individual Achievement Test—Fourth Edition (WIAT-IV) to the student in April 2023, he performed in the average range on the math problem solving subtest; but on subtests assessing word reading, numerical operations, spelling, and alphabet writing fluency, his performance fell within the low average range (see Parent Ex. B at p. 1). The March 2024 IESP also captures the parent's concern that the student was "falling behind in everything—reading, writing, and math" (id. at p. 2). Based on a teacher progress report, dated March 2024, the March 2024 IESP reflects that the student needed "constant instructions repeated" and adult assistance to initiate assignments and to add numbers; at that time, the student reportedly "mixe[d] up numbers up to 20" (id.). The IESP also reflects that, in reading, the student could not "decode words fluently," but he could "tap out and read" words he had learned through "[F]undations" (id.). With respect to reading comprehension, the IESP indicates that the student comprehended books below his grade level, but not above that level (id.). In writing, the IESP notes that the student could "form a sentence verbally but ha[d] extreme difficulty putting the pencil to paper" (id.). Based on a March 2024 report card, the March 2024 IESP indicates that the student's reading "Need[ed] Improvement," his writing was described as "slightly better but spelling and more complex writing [were described as] Need[ing] Improvement," and his math was described as "Approaching Standard to Meets Standard" (id.). It was noted in the IESP that the student "seem[ed] to be able to have complex ideas, however [he did] not know how to express them, especially regarding academics" (id.). It was further noted that the student was "slow to start work" (id.).
With respect to social development, the March 2024 IESP indicates that the student was "social" and "work[ed] well with peers" (Parent Ex. B at pp. 2-3). However, the IESP also indicates that he became "frustrated with his work and c[ould] refuse" (id. at p. 2). For example, the IESP indicates that the student reportedly became "overwhelmed by a whole page" of schoolwork," and refused to do the work schoolwork, and, when frustrated, he refused to do any work (id. at pp. 2-3). The parent did not report any other social/emotional concerns, and the IESP noted that school staff participating at the March 2024 CSE meeting believed that the student did not "need counseling" (id. at p. 3).
Regarding the student's physical development, the March 2024 IESP indicates that the student had "tubes" in his ears, and he was "sensory seeking and c[ould] be sensory sensitive" (Parent Ex. B at p. 3). According to the IESP, the student's "[f]ocusing [wa]s a concern," and he was able to "get[] more done in a small group" (id.). At that time, the student was receiving OT services "because of his handwriting," and his fine motor skills were noted to be "[o]f higher concern to the school" (id.).
Finally, the March 2024 IESP reflects that the student had difficulty with "self-expression" and initiating tasks, which was possibly "due to a language deficit" and "difficulties in remaining focused" (Parent Ex. B at p. 3). The IESP indicates that, "[i]ntegration into the classroom likely require[d] proactive measures by the teacher [or] provider," and further identifies the following strategies recommended to address the student's management needs: "[o]pportunities to ask the teacher questions on the side, optimally at least once a lesson"; "[d]aily practice in word [or] sentence repetition tasks with immediate and delayed responses"; "[p]ractice formulating meaningful sentences based on verbal or multi-sensory prompts," noting further that "[s]entence starters [or] frames c[ould] be quite helpful in practicing this skills (e.g., 'cats like too [sic] . . . ')"; and providing the student with encouragement to "gradually raise expressive skills, first practicing individually, then in a small private group, then in a small group within the classroom, and then, when [the student] fe[lt] confident enough, in the class as a whole"; using "[p]ositive approaches and gamification o[f] academic tasks"; "[p]ractice following multi-step directions for non-academic tasks"; and attempting to use a "sensory diet" with the student (id. at pp. 3-4).
2. Specially-Designed Instruction
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]).
On appeal, the district contends that the parent's evidence fails to establish "when, where, and how" the Step Ahead providers delivered SETSS and speech-language therapy services to the student at his nonpublic school. The district also contends that, while the hearing record provided some evidence of how the SETSS and speech-language therapy providers addressed the student's needs—as described in the representative's testimony—such evidence was insufficient to establish that the services met the student's unique needs. Additionally, the district argues that the January and February 2025 progress reports were equally "vague and nondescript" and failed to describe any progress the student made during the 2024-25 school year. The district also argues that testimonial evidence failed to identify any specifics regarding the implementation of SETSS or speech-language therapy or progress on the student's annual goals. As a final point, the district asserts that the hearing record is devoid of evidence regarding the student's educational program at his nonpublic school or how the Step Ahead services enabled the student to access the general education curriculum.
In support of her burden to establish the appropriateness of the SETSS and speech-language therapy services delivered by Step Ahead and whether those services provided the student with specially-designed instruction, the parent presented witness testimony and two progress reports, a January 2025 speech-language progress report and a February 2025 SETSS progress report, drafted respectively by the student's speech-language provider and one of his SETSS providers (see Tr. pp. 11-35; Parent Exs. F; I-J).[19]
At the impartial hearing, the parent's testimonial evidence was elicited from herself, as well as a witness from Step Ahead who was a "member of the quality assurance team" (representative) at Step Ahead (Tr. pp. 11-35; Parent Ex. F at p. 1). The representative testified that Step Ahead provided the student with SETSS "[three] times per week" through two providers, and speech-language therapy "[two] times per week" through one provider (Parent Ex. F ¶¶ 1, 6).[20], [21] At the impartial hearing, the representative testified that she did not possess any degrees in special education or teaching, she had no experience providing special education, and she had never met the student in this case (see Tr. p. 29). She also did not know whether Step Ahead had delivered any services to the student prior to the 2024-25 school year (see Tr. p. 30). The representative also did not know where the student received SETSS services—i.e., at home or at school, in the classroom or in a separate location—but stated that the "session notes" should reflect the location of services (Tr. pp. 32-33).[22] In addition, the representative did not know whether the providers conducted formal evaluations of the student, but explained that, based on her understanding, the providers assessed the student to "see what level they [we]re on," "set goals," and "reassess[ed]" the student if goals were met (Tr. pp. 33-34). The representative also could not testify about whether any "specific techniques or specific evaluations" were used for SETSS with the student (Tr. p. 34).[23]
Turning to the January 2025 speech-language progress report, the Step Ahead provider relayed that the student had "delays in articulation, expressive language, decoding, and comprehension skills" (Parent Ex. I at p. 1). In "literacy-based tasks, [the student] exhibit[ed] delays in decoding and comprehension"; "difficulty segmenting and blending words with CVCe patterns, digraphs, diphthongs, and r-controlled vowels"; difficulty with "sentence formulation, especially when using presented words and images"; in comprehension, the student exhibited "challenges in answering 'wh-' questions and recalling or summarizing story elements"; and the student had difficulty with "spelling words dictated orally and often confuse[d] vowel and consonant sounds in short sentences" (id. at pp. 1-2).
The January 2025 speech-language progress report indicates that interventions focused on improving the student's articulation, particularly the "/s/ sound," and using techniques such as "stabilizing the mandible, providing verbal cues, and practicing in front of a mirror" (Parent Ex. I at p. 1). At that time, the progress report referenced one annual goal to improve the student's "expressive language skills" and that the student had made "slow but steady progress with constant support" (id. at p. 2). According to the progress report, the student "respond[ed] best to positive reinforcement, tactile cues, and visual aids," and therefore, it was recommended that "continued emphasis on phonemic awareness and decoding skills, as well as the integration of word families into reading and writing tasks" to meet his annual goals (id.). It was also noted that "[p]roviding consistent, structured routines and minimizing environmental distractions w[ould] support [the student's] ability to stay engaged and focused during sessions" (id.). Additionally, the speech-language progress report included new annual goals targeting the student's skills in the areas of articulation, phonemic awareness, decoding, writing, and reading comprehension, and noted that the student's speech-language therapy should be increased from two sessions per week to three sessions per week (id. at pp. 2-3).
Next, the February 2025 SETSS progress report relates that, in reading, the student's "reading fluency [wa]s significantly below grade level expectations," and his "extremely slow" reading pace affected his "ability to maintain comprehension during independent reading tasks" (Parent Ex. J at p. 2). In addition, the progress report notes that the student had difficulty with word recognition, decoding, applying phonetic rules consistently, and sight word recognition (id.). In reading comprehension, the progress report notes that the student had difficulty with "accurately summariz[ing] main events, characters, or themes in stories"; he also exhibited difficulty making inferences from texts (id. at pp. 1-2). With respect to writing, the progress report indicates that the student "struggle[d] significantly to copy words and sentences from the board, and the physical act of writing seem[ed] to be a major hurdle" (id. at p. 2). Additionally, the student demonstrated difficulty "organizing his thoughts coherently" and "trouble maintaining a steady pace"—oftentimes leading to physical acts manifesting frustration with the process (id.). Finally, in mathematics, the progress report indicates that the student had been "working hard on building his basic math skills," and he had "notable delays in his ability to consistently compute basic math problems and grasp essential math concepts" (id.). At that time, the student also had difficulty "computing basic addition and subtraction problems," skip counting, and understanding number patterns (id.).[24]
According to the February SETSS progress report, the student required continued, individualized support in the form of "differentiated instruction in reading, writing, and math, with particular emphasis on phonics, decoding, and fluency practice"; the use of multisensory strategies, such as "visual aids, tactile activities, and interactive learning tools" to support his "phonetic and math skill development"; the incorporation of "graphic organizers and sentence starters" to assist the student during writing tasks, as well as offering "keyboarding or other assistive technologies to support his writing"; and the provision of "frequent breaks during academic tasks to reduce frustration" and to assist the student in "regain[ing] focus" (Parent Ex. J at p. 6). Additionally, the report indicated the SETSS provider delivered differentiated instruction in reading, writing, and math, it was noted that the student required "ongoing emotional support and coping strategies" to help the student "manage frustration," and consideration should be given to "working with a school counselor for further social-emotional development" (id.).[25]
While the evidence in the hearing record is not robust, the progress reports offer sufficient detail about the specially designed instruction provided to the student and are not "vague and nondescript" as the district characterizes and, moreover, contrary to the district's position, the evidence in the hearing record reflects the times of SETSS and speech-language sessions and that they occurred in school (Parent Ex. H). While the district is correct that the progress reports do not detail the student's progress during the 2024-25 school year (see Parent Exs. I-J), it is well settled that a finding of progress is relevant (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]) but not required for a determination that a student's unilateral placement is 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). With respect to how the services assisted the student in accessing the general education curriculum, the IHO weighed the question and, citing information from the March 2024 IESP and the Step Ahead progress reports, and found that the providers were "directly working on difficulties encountered by Student in his regular education classroom" such that the evidence was sufficient to demonstrate that the services were "designed to enable Student to access his general education curriculum" (IHO Decision at p. 8). In its appeal, the district does not grapple with the IHO's reasoning in this regard.
Based on the foregoing and taking into account the totality of the circumstances, there is insufficient basis to disturb the IHO's determination that the parent sustained her burden to establish the appropriateness of the SETSS and speech-language therapy services delivered to the student by Step Ahead. As a result, the district's arguments must be dismissed.
C. Equitable Considerations
The district asserts that the IHO erred by finding that equitable considerations weighed in favor of the parent's request for district funding of the costs of the SETSS and speech-language therapy services from Step Ahead at the contracted hourly rates. The district further argues that the parent's claims should be dismissed based on equitable considerations—and more specifically, due to the failure to submit a 10-day notice of unilateral placement—or, alternatively, asserts that the hourly rates for the Step Ahead services must be reduced because the IHO erred by failing to consider the district's evidence of excessive or unreasonable hourly rates.
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
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 v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
The district asserts that the parent failed to provide the district with a 10-day notice of unilateral placement in this matter, which weighs against the parent's requested relief. In response, the parent argues that statements in her June 1 letter put the district on notice that she was searching for providers to ensure that the student received services, and moreover, that she would seek public funding for the costs of those services. Additionally, the parent argues that she was not required to provide the district with a 10-day notice because she had not received a copy of her procedural safeguards notice and she was not removing the student from the public school.
Initially it must be noted that, rather than raising the lack of a 10-day notice as an argument at the impartial hearing, the district has now raised it for the first time on appeal. To the extent that the district's response to the parent's due process complaint notice generically raises all applicable defenses, including whether the parent "timely notified [the district] of their disagreement with the [student's] offered program and placement," the district did not otherwise present or produce evidence in furtherance of this defense at the impartial hearing, or inquire about it through testimony; therefore, as a result, the hearing record is not developed on this issue.
Additionally, however, the parent's arguments in opposition are specious and equally unavailing. With respect to the statements imbedded within the June 1 notice to the district that the parent would be parentally-placing the student for the 2024-25 school year, the parent conditionally indicates that she would request funding from the district if the district failed to provide providers to deliver services (see Parent Ex. D at p. 2).
Under the facts and circumstances present in this matter, I will exercise my discretion and decline to reduce or deny any reimbursement or direct funding awarded.
2. Excessive Cost of Services
Finally, the district asserts that Step Ahead's hourly rates 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 speaking, an excessive cost argument focuses on whether the rate charged for 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.
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), a related services rate schedule, and a June 2023 memorandum issued by the State Education Department setting forth rate setting methodology for the 2023-24 school year for school-age providers serving students with disabilities (see Dist. Exs. 1-4). The district also argued at the impartial hearing that the hourly rate for the speech-language therapy services should be capped at the same rate as determined in a previous SRO decision (see Tr. pp. 39-40; Application of a Student with a Disability, Appeal No. 24-568 [capping the rate for speech-language therapy services delivered by a different agency at $60.20 per hour]).
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 rate charged by Step Ahead for SETSS was 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.
First, the AIR report draws data published by the USBLS, a U.S. 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 teachers are paid in the New York City metropolitan region in a given year in which the data is published.[26] 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 does not indicate that it is 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 data indicated that, in May 2024, 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.[27] The USBLS indicated that in May 2024 data hourly wages for "Speech-Language Pathologists" in the New York City metropolitan region 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.[28]
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 such educational services costs were 34.3 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.[29]
With respect to Step Ahead's hourly rates, at the impartial hearing the representative testified that, although she was aware of the hourly rates Step Ahead charged for SETSS ($200.00 per hour) and related services ($250.00 per hour), she did not know how much each individual provider was paid; however, she testified that SETSS providers were paid within the range of $90.00 to $175.00 per hour and speech-language therapy providers were paid within the range of $120.00 to $160.00 per hour (see Tr. pp. 30-31; Parent Ex. F ¶ 3). The representative explained that Step Ahead's hourly rates—and in particular any remaining amounts over what was paid to providers—was dedicated to "overhead" expenses, such as "[m]aterials," "upkeeping in office, the Dragon software, [and] the loans" (Tr. pp. 31-32; see Parent Ex. F ¶ 3). As a final point, the representative testified that Step Ahead did not pay for the parent's legal fees (see Tr. p. 35; Parent Ex. F ¶ 3). Given this testimony and the lack of evidence in the hearing record specific to the rate paid to the student's provider, I will consider the lower hourly rate for SETSS ($90.00 per hour) and speech-language therapy ($120.00 per hour) identified by the Step Ahead representative. For SETSS, a rate of $90.00 per hour annualized is approximately $105,300.00, a figure falling between the median and 75th percentiles. Thus, the $90.00 per hour portion of the rate is not excessive. However, the amount of indirect costs above the provider's hourly wage are $110.00 per hour or 55 percent of the $200.00 per hour (see Parent Ex. E at p. 1). This falls far above the 34.3 percent identified in the USBLS data. The rate of $120 per hour for speech-language therapy falls above the 90th percentile and, moreover, the indirect costs above that figure are $130 or 52 percent of the $250 per hour (Parent Ex. E at p. 1), fall above the 34.3 percent.
Considering that the evidence in the hearing record does not reflect that the experience or credentials of the speech-language therapist warranted a rate so far above the 90th percentile and considering that the Step Ahead representative 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 (see Tr. pp. 30-31; Parent Ex. F ¶ 3), the evidence in the hearing record leads me to the conclusion that the parent arranged for SETSS and speech-language 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.
On the other hand, some indirect or overhead costs are reasonable. For SETSS, calculating for overhead costs equating to 34.3 percent of the overall rate, and accounting for the provider's wage at $90.00 per hour for the reasons noted, the total rate computes to $137.00 per hour. For speech-language therapy, a wage of approximately $80 per hour, at the 90th percentile, with a calculation of overhead equaling 34.3 percent, amounts to $122.00 per hour.
Based on the foregoing, I reverse the IHO's determination that the $200.00 and $250.00 hourly rates charged by Step Ahead for SETSS and speech-language therapy were not excessive and find that a reduction is warranted on equitable grounds. In particular, I find that the district should fund the unilaterally obtained SETSS at the rate of $137.00 per hour and the speech-language therapy at the rate of $122.00 per hour.
D. Pendency
Finally, the district asserts that the IHO erred by ordering pendency services in this matter. More specifically, the district contends that the student's March 2024 IESP contemplated public delivery of the student's special education program, and the parent, by unilaterally obtaining services for the student from Step Ahead, a private agency, declined pendency services from the district. However, the IHO did not order pendency services from the private provider and instead, only found that the student's March 2024 IESP formed the basis for the student's pendency services, which the district does not dispute (see Interim IHO Decision at p. 1; see Req. for Rev. ¶¶ 3, 27-28).[30] Accordingly, the district is not aggrieved by the IHO's decision in this regard.
VII. Conclusion
Based on the foregoing, the IHO had subject matter jurisdiction to hear this matter, there is insufficient basis to disturb the IHO's conclusion that the SETSS and speech-language therapy services delivered by Step Ahead to the student for the 2024-25 school year were appropriate, and equitable considerations support a partial award of funding for the costs of those services.
I have considered the 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's decision dated May 13, 2025 is modified reversing those portions which found that equitable considerations supported the parent's requested relief in full and awarded funding for SETSS at the contracted rate of $200.00 per hour and awarded funding for speech-language therapy at the contracted rate of $250.00 per hour;
IT IS FURTHER ORDERED that the district shall directly fund or reimburse the costs of the student's SETSS delivered by Step Ahead during the 2024-25 school year at a rate not to exceed $137.00 per hour upon presentation of proof of delivery; and
IT IS FURTHER ORDERED that the district shall directly fund or reimburse the costs of the student's speech-language therapy services delivered by Step Ahead during the 2024-25 school year at a rate not to exceed $122.00 per hour upon presentation of proof of delivery.
Dated: May 29, 2026
Sarah L. Harrington
STATE REVIEW OFFICER
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] At the time of the March 2024 CSE meeting, the student was reportedly in first grade and was receiving related services consisting of OT and speech-language therapy (see Parent Ex. B at p. 1). According to the March 2024 IESP, the student was "Parentally Placed in a Non-Public School" (id. at p. 11; see Parent Ex. C at p. 1).
[3] Under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school (i.e., parentally placed) 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]).
[4] The parent noted on the form that the student would be attending second grade during the 2024-25 school year (see Parent Ex. D at p. 2).
[5] On the Step Ahead document, the parent's electronic signature reflects that it was executed on December 5, 2024; however, on the second page of the document, which is entitled "Final Audit Report" and is dated December 6, 2024, the document history reflects that the parent executed the Step Ahead document on December 6, 2024 (Parent Ex. E at pp. 1-2). This discrepancy is not explained in the hearing record. At the impartial hearing, the parent testified that she had entered into a "verbal agreement" with Step Ahead "[a]round the same time" she signed the document, or "probably a little bit before" (Tr. p. 15).
[6] Step Ahead has not been approved by the Commissioner of Education as an agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[7] The IHO who executed the pendency order was not the same IHO who subsequently presided over the impartial hearing on April 7, 2025 and who issued the decision on the merits in this matter (compare Interim IHO Decision at p. 1, with Tr. p. 1, and IHO Decision at p. 10).
[8] At the impartial hearing, the parent modified the relief sought in this proceeding to only include funding for SETSS and speech-language therapy services, withdrawing the request for district funding of private OT services, but noting that the student was receiving OT services from a provider (see Tr. pp. 5-6).
[9] To the extent that the district does not appeal or otherwise challenge the IHO's finding that the district failed to offer the student a FAPE or equitable services for the 2024-25 school year, this 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 M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
[10] 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]).
[11] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[12] 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]).
[13] 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.
[14] 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).
[15] 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.
[16] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; thus, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.
[17] 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.
[18] 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 Step Ahead, Inc. (Educ. Law § 4404[1][c]).
[19] The parent also submitted a document—exhibit H—that is untitled, but which the parent identified in her exhibit list as "Attendance Records." The fillable document reflects the student's name; the teacher's name and role; the date of the session; the times in and out of each session; and the location of the session (see generally Parent Ex. H). The document also provides space for notes regarding each session (id.). A review of this document reveals that the student did not begin receiving speech-language therapy services from the Step Ahead provider until November 26, 2024 (compare Parent Ex. H at p. 2, with Parent Ex. F ¶ 6, and Parent Ex. G at p. 3). The document further reveals that, while the speech-language provider consistently described each session delivered to the student, the SETSS providers, overall, failed to describe a majority of the sessions delivered to the student (see generally Parent Ex. H).
[20] Although the representative identified two different SETSS providers in her testimony as the individuals who delivered SETSS to the student, the hearing record reveals that a third individual provided SETSS to the student during the 2024-25 school year as well, but the representative did not identify this individual as a SETSS provider in her testimony (compare Parent Ex. F ¶ 6, with Parent Ex. G at p. 1-2, 4, and Parent Ex. H at pp. 1-2, 6-7). The evidence in the hearing record reflects that the unidentified SETSS provider delivered services to the student from approximately September 19, 2024 to October 10, 2024 (compare Parent Ex. G at p. 4, with Parent Ex. H at p. 1). Thereafter, the two individuals identified by the representative as the student's SETSS providers separately delivered services to the student from November 4, 2024 through January 29, 2025, and then from February 7, 2025 through March 3, 2025 (id. at pp. 1-7).
[21] The representative explained that the "quality assurance team" at Step Ahead had been "created in Spring 2025" (Parent Ex. F at p. 1). According to her testimony, the representative's "role as a member of the quality assurance team . . . include[d] collaborating with all parties involved in the students' education success such as parents, service providers, school staff and supervisors" (id. ¶ 1). She was also responsible for ensuring "clear communication between all parties," "verifying that all sessions ha[d] been entered by the provider and [that] the appropriate monthly signatures [were] attached to them," and to ensure that "detailed timely progress reports were submitted" (id.). The representative testified that, prior to her role on the quality assurance team, she was a "secretary" at Step Ahead (Tr. pp. 29-30). The representative explained that, in her new role, she was responsible for "making sure all the documentation [wa]s in" and as a secretary, her role was to "just compile all the documents" (Tr. p. 30).
[22] The parent also testified that, while she understood that the student's services were delivered at school, she did not know if the student's services were delivered in class or in a separate room (see Tr. p. 22). She further testified that she spoke with one of the student's SETSS providers "every few weeks" and similarly, she spoke with the student's speech-language provider "every few weeks" (Tr. p. 21). The parent testified that she did not receive any "log or notifications for each session" that took place (id.). The parent also testified that the student required SETSS primarily for reading (see Tr. p. 22).
[23] In addition, the representative testified that she used provider "'check-in form[s]'" to gather "insights . . . about the student," which she had summarized in testimony (Parent Ex. F ¶ 6). According to the representative, the check-in forms were "sent to the service providers . . . [as] an extra tool to ensure that clear goals were set out" for the student and that "specific methods [we]re being used to target those goals and monitor progress" (id.). While the check-in forms the representative purportedly relied upon to gather information about the student were not entered into the hearing record as evidence, she testified that the speech-language provider used the following with the student: "[c]ards with pictures of different sounds, tongue depressor, mirror, Van Riper approach, Straight Speech, PROMPT, Cycles approach, recordings for feedback, and swallow right for tongue thrust"; "phonological awareness practice, Orton Gillingham approach, word families, sight word practice"; "Visualizing and Verbalizing, explicit instruction, Story Grammar Marker, Annotating and highlighting, graphic organizers"; and "graphic organizers, sentence starters, checklists, writing process approach, anchor charts" (id.).
[24] The February 2025 SETSS progress report also reflects information about the student's social behavior and includes annual goals for the student in reading (phonemic awareness, reading fluency) and mathematics (counting backwards, skip counting, basic mathematics computations) (see Parent Ex. J at pp. 2-6).
[25] The representative testified that, based on her review of the SETSS check-in forms, the providers used repetition and redirection to support transitions, visual prompts and manipulatives to break down tasks and help the student understand new concepts, and encouragement and positive reinforcement to promote self-confidence (see Parent Ex. F ¶ 6).
[26] 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 (see Dist. Exs. 1-2), 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, the 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.
[27] The 2024 data for the metropolitan area is available in a downloadable Excel format, or the most recent statics offered can be searched using the USBLS Query System for "Multiple occupations for one geographical area" (see https://data.bls.gov/oes/#/home). A larger file with all regions for May 2024, including the New York-Newark-Jersey City metropolitan region is also available (https://www.bls.gov/oes/special-requests/oesm23ma.zip).
[28] The Speech Language Pathologist wage data for New York City is located on the USBLS website for May 2024 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates (see, e.g., https://www.bls.gov/oes/2024/may/oessrcma.htm).
[29] Using 6.5 hours per day results in approximately 1170 hours of instruction time for students during a school year, and similar to teachers, paraprofessional services are typically provided to students on a similar schedule during the school day.
[30] It is undisputed that the parent unilaterally obtained SETSS and speech-language therapy from Step Ahead without the consent of school district officials, and there is no evidence of any prior administrative decisions finding that Step Ahead provided appropriate unilateral services to the student that could arguably serve as a basis for funding the services under pendency. The Second Circuit has explained that a parent may not unilaterally move a student to a preferred placement and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency service (Ventura de Paulino, 959 F.3d at 532-35). The Court stated that: "what the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis" (id. at 534). In short, the parent's decision to seek public funding for the student's unilaterally-obtained SETSS and speech-language therapy, which was clear from the parent's due process complaint notice, constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]). The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parent had not been found appropriate in any administrative proceeding. When the parent unilaterally obtained SETSS and speech-language therapy from Step Ahead, the parent did so at her own financial risk and can only obtain funding for the costs if the services offered by the board of education are found to be inadequate or inappropriate, the placement and services selected by the parent are found to be appropriate, and equitable considerations are found to support the parent's claim (Ventura de Paulino, 959 F.3d at 526; see Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70).