STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-429
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances:
Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.
Gulkowitz Berger LLP, attorneys for respondent, by Shaya M. Berger, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the district) appeals from a decision of an impartial hearing officer (IHO) which granted respondent's (the parent's) request that the district fund her son's private services delivered by Always a Step Ahead, Inc. (Step Ahead), as well as compensatory education, 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). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The hearing record is sparse related to the student's educational history. On May 17, 2024, the parent signed a document to notify the district of her intent to place the student at a nonpublic school at her own expense and to request that the district continue to provide the student's special education services during the 2024-25 school year (Parent Ex. D). The parent additionally advised the district that she had "not yet received any notice that the [district] w[ould] be providing providers for [her] child's services" and that, therefore, she was "in the process of searching for [her] own providers" for which she would seek public funding (id.).
A CSE convened on June 25, 2024 to conduct the student's annual review and develop his IESP for the 2024-25 school year (Parent Exs. B; C at p. 1).[1] The IESP's present levels of performance described the student's needs in the areas of decoding, reading fluency, verbal working memory, written language, sensory processing, attention and focusing, and motor planning and reported that the student had received diagnoses of dyslexia, dysgraphia, and attention deficit hyperactivity disorder (ADHD) (Parent Ex. B at pp. 2-5). Finding the student eligible for special education as a student with a learning disability, the June 2024 CSE recommended that the student receive three periods per week of special education teacher support services (SETSS), one 30-minute session per week of group counseling, and two 30-minute sessions per week of individual occupational therapy (OT) (Parent Exs. B at pp. 1, 8-9; C at p. 1).[2]
During the 2024-25 school year the student attended fourth grade at a nonpublic school and, beginning on September 9, 2024, began receiving SETSS from Step Ahead (see Parent Exs. H; I at p. 1).[3] According to an OT attendance log, the district approved a provider to deliver the student's OT services, and the provider delivered four 30-minute individual OT sessions to the student between November 8, 2024 and December 23, 2024 (Dist. Ex. 6).
On December 24, 2024, the parent signed a contract with Step Ahead for the provision of SETSS and related services to the student for the 2024-25 school year (Parent Ex. E).
A. Due Process Complaint Notice
In a due process complaint notice dated January 9, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) and equitable services for the 2024-25 school year by failing to implement the services recommended in the student's June 2024 IESP (Parent Ex. A at pp. 1-2). The parent requested that the district be required to fund the private services the parent obtained for the student for the 2024-25 school year, as well as "compensatory relief as may be appropriate" (id. at p. 2).
The district submitted a due process response, dated January 17, 2025, which generally denied the material allegations contained in the due process complaint notice; asserted "applicable defenses"; and attached a prior written notice summarizing the June 2024 CSE meeting (see Dist. Response to Due Process Compl. Not.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO (IHO I) with the Office of Administrative Trials and Hearings (OATH) on May 6, 2025 (Tr. pp. 1-34). Subsequent to the impartial hearing, the matter was assigned to a different IHO (the IHO) (see IHO Decision at p. 4 n.5). In a decision dated June 4, 2025, the IHO denied the district's motion to dismiss the parent's claims for lack of subject matter jurisdiction, finding that the parent could bring a due process complaint notice to allege the district's failure to implement equitable services (id. at pp. 5-6).[4] Turning to the merits, the IHO found that the district failed to implement the student's June 2024 IESP and, therefore, denied the student "a FAPE on an equitable basis" for the 2024-25 school year (id. at p. 6). The IHO went on to find that the unilaterally obtained SETSS from Step Ahead were appropriate for the student and that equitable considerations favored the parent's requested relief (id. at pp. 7-8). The IHO ordered the district to directly fund the student's unilaterally obtained SETSS at a rate of $200 per hour (id. at pp. 9, 12). In addition, the IHO ordered the district to fund the student's counseling services as mandated in the June 2024 IESP as a bank of compensatory education at a rate of $250 per hour, with such award to expire three years from the date of the IHO's order (id. at pp. 10-12).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in denying its motion to dismiss for lack of subject matter jurisdiction, arguing that the parent did not have a right to an impartial hearing for an implementation claim under Education Law §§ 3602-c and 4404 and that the parent failed to file her claim with the district's enhanced rate equitable services (ERES) unit. In addition, the district argues that the IHO erred in finding that the parent met her burden to prove that the unilaterally obtained SETSS delivered by Step Ahead were appropriate for the student. The district also alleges that the IHO erred in finding that equitable considerations weighed in favor of the parent's requested relief, arguing that the parent failed to provide 10-day notice of her intent to unilaterally obtain services for the student and that the rate charged by Step Ahead for SETSS was excessive. Additionally, the district alleges that the IHO erred in ordering the district to fund a bank of compensatory education hours for counseling services for the student because the parent engaged in self-help and contracted with Step Ahead to implement the services in the student's June 2024 IESP and there was "no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parent."
In an answer, the parent responds to the district's allegations and argues that the IHO's decision should be upheld 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]).[5] "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.).[6] 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. Subject Matter Jurisdiction
Turning to the district's contention that the IHO lacked subject matter jurisdiction over this matter, I note that subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation. Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-298; Application of a Student with a Disability, Appeal No. 25-293; Application of a Student with a Disability, Appeal No. 25-459; Application of a Student with a Disability, Appeal No. 25-242; Application of a Student with a Disability, Appeal No. 25-300; Application of a Student with a Disability, Appeal No. 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]).[7]
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).[8] 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.[9]
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], available athttps://www.nysed.gov/sites/default/ files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In 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.[10]
In its request for review, the district contends that, under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services. Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[11] 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 Fed. App'x 461, 465 [2d Cir. Nov. 12, 2009]; quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id. at p. 7).[12] 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.
Based on the foregoing, the district's appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Unilaterally Obtained Services
Neither party appeals the IHO's determination that the district denied the student a FAPE and equitable services for the 2024-25 school year. Accordingly, this finding 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]).
In this matter, the student was parentally placed in a nonpublic school and the parent did 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]).[13] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
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
Although not in dispute, a discussion of the student's needs provides context for the analysis of whether Step Ahead delivered appropriate services to the student during the 2024-25 school year.
The student's June 2024 IESP reported the results of an undated neuropsychological evaluation, which showed that on the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), the student received a full scale IQ of 112, which was in the high average range, with standard scores in the average to high average range on all WISC-V indexes (Parent Ex. B at p. 1). The IESP reported that the student's overall decoding skills were "not what might be expected for such a bright youngster" (id. at p. 2). The IESP further reflected that on the Wechsler Individual Achievement Test-Fourth Edition (WIAT-IV), the student's ability to decode nonsense words was at the 66th percentile but did not capture the extent of the student's difficulty with reading decoding (id.). According to the IESP, the student "clearly ha[d] a visual perceptual problem that [was] undermining his decoding" (id.). He read single words at the 39th percentile, which the IESP noted was a "weak score for a student with at least [s]uperior ability," however his passage comprehension was at the 45th percentile, in the average range (id.). The IESP reported that the student was "squeaking by" in many instances but had "major difficulty" with reading and "seem[ed] to be disengaged from the reading process" (id.). The IESP also noted the student's "considerable difficulty” with written language (id.). The IESP additionally stated that, on the WIAT-IV, the student wrote an essay in "less than the 10 allowed minutes" with "haphazard" letter formation and little punctuation but included enough information to obtain a score in the 15th percentile (id.). According to the IESP, the student did not like writing, as it required planning, reflection, directional execution of letters, and sequencing, and, although he had good ideas, he struggled to get them on paper (id.). The IESP noted that, on assessments involving "copying," including math number writing and written expression, the student's performance could "be described as dysgraphic" (id.). The IESP further noted that on the WIAT-IV, the student's ability to produce sentences, when given a word to include, was at the 14th percentile and his ability to synthesize, edit, and combine two sentences into one was at the 16th percentile (id.). In addition, the student's writing contained incorrectly formed letters, and his poor motor planning resulted in words that were "generally over spaced" (id. at pp. 2-3).
According to the June 2024 IESP, math was an area of relative strength for the student (Parent Ex. B at p. 3). On the WIAT-IV applied math problem solving subtest, the student obtained a score in the 73rd percentile (id.). The IESP stated that, during the neuropsychological evaluation, the student applied his strengths in quantitative reasoning and had little frustration with math problem solving (id.). He could hold numbers in working memory and come up with the answer when doing math "in his head," but could not do the same with "sight sound relationships" (id.). According to the IESP, on the WISC-V, the student performed in the "[h]igh [a]verage and [s]uperior ranges" in fluid reasoning (id.). The IESP additionally related that on the WIAT-IV, the student scored in the 45th percentile on the numerical operations subtest, the 61st percentile on the addition fluency subtest, the 68th percentile on the subtraction fluency subtest, and the 68th percentile on the multiplication fluency subtest (id.). The IESP stated that the student had "much greater [m]ath potential were it not for his ADHD related retrieval fluency difficulty" (id.).
Speaking to the student's speech-language needs, the June 2024 IESP related that results from the Test of Integrated Language and Literacy Skills (TILLS) showed that the student "demonstrated largely strong language skills with a few deficit skills" (Parent Ex. B at p. 3). He had average vocabulary knowledge and an average ability to establish relationships between words, as well as "average phonemic awareness," which was "an essential skill for reading" (id.). According to the IESP, the student had "good code knowledge, phoneme segmentation and confirmed good phoneme manipulation," as well as "solid narrative structure" and "good short-term memory for repeating sounds in correct order on a nonsense word repetition task" (id.). He demonstrated knowledge of "orthographic rules and patterns of English to spell non-sense words, but was not as successful with real words (which don't accept various spelling patterns)" (id.). The IESP stated that the student's "cut score" of 45 on the TILLS was "not consistent with a [l]anguage or [l]iteracy disorder" but noted that he was "struggling with verbal working memory and retrieval and thus decoding and fluency" (id. at pp. 3-4).
In terms of the student's social/emotional development, the June 2024 IESP reported that, according to the neuropsychological evaluation, the student was "sweet" and "respectful," but his ADHD impacted his ability to self-regulate his attention and effort (Parent Ex. B at p. 4). He was "eager to please and work for recognition," but academics, and reading in particular, were "so frustrating and labored that he [became] disengaged as a way to stave off further frustration” (id.). The IESP noted that the student's "need to bargain and negotiate for fewer examples and his need for breaks highlight[ed] the stress that his ADHD and his [learning disability] place[d] on his functioning” (id.). The IESP additionally stated that, despite the student's frustration, he related to the examiner in a "very sweet, genuine manner and present[ed] as a reality oriented, socially appropriate [student]" (id.). According to the IESP, the student got along well with peers (id.). The June 2024 CSE recommended that the student's social needs would be addressed through counseling and within the classroom through peer models (id. at p. 5).
In the area of physical development, the June 2024 IESP stated that the student had difficulty with sensory processing and modulation, attention and focusing, visual cognitive perceptual skills, and deficits in visual motor perceptual and graphomotor skills (Parent Ex. B at pp. 4-5). He was easily distracted by visual and auditory stimulation and self-distracting behaviors and movements and had difficulty staying on task, requiring "constant" check-ins and prompting (id. at p. 5). The IESP also reported that the student attempted to avoid challenging activities and tended to give up easily and request a change of activity (id.). According to the IESP, the student struggled with letter size consistency, staying on the line, proper spacing between letters and words, proper height of tall and short letters, placement of long letters, and proper use of capitalization, and had "low receptiveness" to teacher cues (id.).
With respect to describing the student's needs, the hearing record also includes a progress report, dated January 12, 2025 (Parent Ex. I).[14] According to the progress report, in reading, the student demonstrated strengths in identifying prefixes and suffixes, participating in group discussion, determining the main idea of a text along with supporting details, and evaluating the speaker's point of view, but "need[ed] to work on decoding multisyllabic words accurately and reading irregularly spelled words by memory with appropriate rate and expression" (id. at pp. 1-3). In the area of writing, the student "excel[led] in recounting short sequences of events and using temporal words to signal event order" but needed improvement in expressing opinions with clear reasons and evidence, introducing topics for informative/explanatory texts, providing descriptive details in narratives, and recalling relevant information from experiences (id.). The progress report indicated that, in math, the student exhibited strength with rounding whole numbers, identifying place value in four-digit numbers, measuring area by counting unit squares, and writing four-digit numbers in expanded form, but "still needed to work" on describing multiplication and division of whole numbers as groups, finding missing numbers in simple multiplication and division sentences, fluently adding and subtracting within 1,000, and solving one and two step problems (id. at pp. 1-2). The progress report also noted that the student had difficulty focusing on classwork for extended periods of time, had slow processing speed, and had difficulty with executive function (id. at p. 3).
2. SETSS provided by Step Ahead
With respect to the services provided to the student by Step Ahead, the hearing record includes the testimony of the Step Ahead quality assurance team member (Step Ahead representative); a document which reflected the teacher's name, dates and times sessions were provided, the location (school), and notes about the sessions (attendance record); and the January 2025 progress report (Tr. pp. 11-20; Parent Exs. F; H; I).
The Step Ahead representative testified that her role was to collaborate with all parties involved in students' educational success, assist with making sure there was clear communication between all parties, verify attendance records, and make sure that progress reports were timely submitted (Parent Ex. F ¶ 1). According to the Step Ahead representative, during the 2024-25 school year, Step Ahead provided the student with three periods per week of individual SETSS from a provider who held a Students with Disabilities (Birth-Grade 2) internship certificate (Tr. pp. 13-14, 19; see Parent Exs. F ¶ 6; G).[15] According to the Step Ahead representative, SETSS for students "in [the student's] age range" were "usually" provided "out of class" and the student was pulled out during "different subjects," noting that it was "not [at] the same time every . . . time" (Tr. p. 15). The Step Ahead representative testified that, to address the student's needs, the SETSS provider used strategies such as leveled texts, manipulatives, positive reinforcement, pre-teaching, re-teaching, redirecting, scaffolding, verbal prompting, visual prompts, colored visual aids, extra paper, flash cards, graphic organizers, and highlighters (Parent Ex. F ¶ 6).
As the district argues, the Step Ahead representative testified that she had never met or observed the student and was not a service provider (Tr. p. 15).[16] Nevertheless, the documentary evidence included in the hearing record offers additional information about the student's programming.
A review of the SETSS attendance record shows that the provider delivered approximately three to four sessions of SETSS per week to the student, generally in sessions of either a 45-minute or a 60-70 minute duration, occasionally providing a longer session of 110 minutes or more than one session in a day (Parent Ex. H).[17] Although the attendance record shows that the provider worked with the student on the same skill areas over multiple sessions—referencing the skill areas verbatim in the notes for such sessions—the skills were consistent with the student's needs identified in the June 2024 IESP and in the January 2025 SETSS progress report (id.). The attendance record reflected the strategies used by the provider to meet the student's needs, including place value charts, graphic tools for estimating, multiplication drills, diagrams, using manipulatives, spelling drills, and dramatizing text to improve comprehension (id.). Further, and contrary to the district's statement that the attendance record reflected "heavy emphasis" on math, the attendance log shows that the SETSS provider also worked with the student on reading fluency, comprehension, creative writing of a short personal narrative, creative writing using new vocabulary words, spelling strategies, writing a narrative of realistic fiction, differentiating between plural nouns and possessive nouns, creative writing using a plot line, comprehension of historical texts, recognizing patterns in phonics, literacy research skills, building a fact file, and using a fact file to write a paragraph on each subtopic using an introductory sentences, supporting information, and closing sentence (id.).
Although the district argues that the hearing record did not include a progress report after January 2025 or any sessions notes for the period after February 2025, there is no indication that the sessions did not continue in a similar vein or that any change had occurred.[18] Further, the January 2025 progress report set forth goals to be addressed over the next three months (Parent Ex. I at pp. 2-3). In reading, goals stated that the student would decode multisyllabic words and read irregularly spelled words by memory with appropriate rate/expression, both with at least 80 percent accuracy (id. at p. 3). For writing, the progress report included goals for the student to write opinion pieces with clear reasons/evidence, to introduce a topic for informative/explanatory texts, to provide descriptive details/thoughts/feelings in narratives, and to recall relevant information from experiences/sources, all with at least 80 percent accuracy (id. at pp. 2-3). In math, the goals targeted the student's ability to correctly describe multiplication/division of whole numbers as groups, to find missing numbers in simple multiplication/division sentences, to fluently add/subtract within 1000, and to solve one/two-step word problems involving operations, all with at least 80 percent accuracy (id. at p. 2).
The district asserts that the January 2025 SETSS progress report did not include information about the student's progress over the course of the school year and that the hearing record did not demonstrate how the SETSS provided by Step Ahead connected to the curriculum and instruction provided at the nonpublic school.[19] While a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement 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). The Step Ahead representative testified to the student's progress and interaction with the general education curriculum, noting that his "greatest progress" was that, with support, he followed the curriculum throughout the day along with his classmates and completed assignments, noting that he demonstrated greater progress in developing math skills as opposed to literacy skills (Parent Ex. F ¶ 6).
While the hearing record is not detailed with respect to the student's progress or the connection between the SETSS and the nonpublic school general education curriculum, taking into account the totality of the circumstances, I find insufficient basis to disturb the IHO's conclusion that the SETSS provided by Step Ahead included specially designed instruction appropriate to meet the student's needs during 2024-25 school year.
C. Equitable Considerations
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
1. Ten-Day Notice
The district alleges that the parent failed to provide the district with a 10-day notice of her intention to unilaterally obtain services for the student and that such failure should result in a reduction or denial of relief. The Second Circuit recently emphasized that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" (Bd. of Educ. of Yorktown Cent. School Dist., 990 F.3d, 152, 171 [2d Cir. 2021]; see 20 U.S.C. § 1412[a][10][C][iii][I]; 34 CFR 300.148[d][1];Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004] [noting that the statutory provision "serve 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"]). During the ten-day notice period, a district "may seek to correct the IEP" after it has been given notice of the parents' objections and "may defend against a claim for tuition reimbursement by pointing out that parents did not cooperate in the revision of the IEP, or that the corrected IEP, if accepted by the parents, would have provided the child with a FAPE" (Bd. of Educ. of Yorktown Cent. School Dist., 990 F.3d at 171).
Here, on May 17, 2024, when the parent submitted to the district her written request for equitable services for the student for the 2024-25 school year, she also stated that she had "not yet received any notice that the [district] w[ould] be providing providers for [her] child's services" and that, therefore, she was "in the process of searching for [her] own providers" for which she would seek public funding (Parent Ex. D). While there is no indication in the hearing record that the parent sent further notice after the CSE developed the June 2024 IESP or leading up to the beginning of the 2024-25 school year, there is also no evidence that the district made any efforts to implement the student's services or respond to the parent's concern stated in her May 2024 notice that district would not arrange for providers to deliver the student's services. Under the circumstances, I decline to exercise my discretion to apply a reduction to an award of funding based on the timing or manner in which the parent communicated her concerns and her intent to unilaterally obtain private services.
2. Excessive Costs
The district also argues that the rate charged by Step Ahead for SETSS was excessive. Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.
Here, the parent entered into an agreement with Step Ahead by which the agency would provide the student with SETSS for the 2024-25 school year at a rate of $200 per hour (Parent Ex. E). The Step Ahead representative testified that SETSS providers were paid between $90 to $175 per hour, with the remainder of the rate charged going to expenses incurred by the company (see Tr. p. 17; Parent Ex. F ¶ 3). In particular, the Step Ahead representative indicated that the company's expenses included maintaining a physical office, continuing education and student specific training, maintenance of a database for providers, provision of materials to use in delivering services, and payment of loans incurred due to the district's failure to make timely payments (Parent Ex. F ¶ 3).
On the question of reasonable market rates, during the impartial hearing, the district submitted an October 2023 report by the American Institutes for Research (AIR report), May 2023 data from the United States Bureau of Labor Statistics (USBLS), and a 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. 1-3). 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.[20] It was not inappropriate for the AIR to use such government-published data in its report. The data set in the New York, New Jersey and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region. It is reasonable to find that most teachers and providers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2024 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available athttps://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.[21]
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 athttps://www.bls.gov/news.release/archives/ecec_09102024.pdf).[22]
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.[23]
As noted, although the Step Ahead representative indicated that SETSS providers were paid between $90 to $175, she did not know the student's provider's rate (see Tr. pp. 17-18; Parent Ex. F ¶ 3). The Step Ahead representative did acknowledge, however, that the rates paid depended on the provider's experience, among other factors, and that the student's provider held an internship certificate to teach students with disabilities from birth through grade two (Tr. pp. 18-19; see Parent Ex. G). Given this testimony and the lack of evidence in the hearing record specific to the rate paid to the student's provider, I will use lower hourly rate identified by the Step Ahead representative, i.e., $90 per hour. A rate of $90 per hour annualized is approximately $105,300, a figure falling between the median and 75th percentiles. Thus, the $90 per hour portion of the rate is not excessive. However, the amount of indirect costs above the provider's hourly wage is $110 per hour or 55 percent of the $200 (see Tr. p. 17; Parent Ex. E). This falls far above the 34.3 percent identified in the USBLS data.
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. p. 18; Parent Ex. F ¶ 3), the evidence in the hearing record leads me to the conclusion that the parents arranged for SETSS from Step Ahead at an excessive cost, as the district argues, and that it is more than what the district should be required to pay. On the other hand, some indirect or overhead costs are reasonable. Calculating for overhead costs equating to 34.3 percent of the overall rate, and accounting for the provider's wage at $90 per hour for the reasons noted, the total rate computes to $137 per hour.
Based on the foregoing, I reverse the IHO's determination that the $200 hourly rate charged by Step Ahead for SETSS was 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 per hour.
D. Compensatory Education
Lastly, the district argues the IHO erred by awarding the parent with a bank of compensatory education for the student's counseling services to be provided at an independent provider at a rate of $250 per hour.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compareP.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], withE. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]). Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington/Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).
Here, the parent engaged in self-help and unilaterally obtained private services, which she asserts were appropriate to meet the student's unique needs. The parent also argues that the student needed more related services as compensatory education. However, in this instance, I find that "[b]oth statements cannot be true at once" (M.M., 2024 WL 3904771, at *10 [finding that, given the determination that the unilateral placement was appropriate despite failing to include all related services, the student was not deprived of the benefit of those services]). As I have found that the unilaterally obtained services were appropriate with the level of services provided, the hearing record does not indicate that the student was deprived educational benefit due to the lack of counseling services. Indeed, although the June 2024 IESP recommended counseling services, it also described that the student got along with peers and was "socially appropriate," with the only deficits identified in this area relating to the student's frustration with academics (see Parent Ex. B at p. 4). The evidence from Step Ahead does not reference the student's frustration or other social/emotional struggles that he experienced during the 2024-25 school year. Moreover, there is no evidence in the hearing record regarding the parents' efforts to obtain additional services for the 2024-25 school year, such as counseling services.[24] Therefore, under the circumstances, I find no basis for an award of compensatory education to remediate gaps in the unilateral programming arranged for by the parents, especially absent specific evidence regarding any difficulties they encountered arranging for the services (see generallyApplication of a Student with a Disability, Appeal No. 24-625; Application of the Dep't of Educ., Appeal No. 22-139). Thus, the IHO erred in awarding the parent a bank of compensatory counseling services.
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 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 June 4, 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 per hour and which awarded compensatory counseling services; and
IT IS FURTHER ORDERED that the district shall directly fund/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 per hour upon presentation of proof of delivery.
Footnotes
[1] The hearing record includes two copies of the student's IESP (compare Parent Ex. B, with Dist. Ex. 5). For purposes of this decision, only the parent's exhibit is cited.
[2] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[3] Step Ahead has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The IHO noted IHO I's reference to such a motion on the record but indicated that the motion itself had not been made part of the hearing record (IHO Decision at p. 5; see Tr. pp. 5-6). Likewise, the hearing record on appeal does not include a written motion to dismiss, but it does include the parent's written response thereto as part of a combined opening statement and statement on pendency and the district's motion to dismiss (Parent Ex. J). During the impartial hearing, IHO I also denied the district's motion (Tr. p. 6).
[5] 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]).
[6] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[7] 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]).
[8] 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.
[9] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1. For example:
Questions and Answers
1. What does "dual enrollment" mean?
Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.
("Dual Enrollment Programs," available athttps://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[10] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/ regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however, enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[11] 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; however, it has been added to the administrative hearing record.
[12] 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.
[13] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Step Ahead (Educ. Law § 4404[1][c]).
[14] The progress report is unsigned but the SETSS provider's name is listed along with the student's name, date of birth, school, and other identifying information (see Parent Ex. I).
[15] While the district references the teacher's credential as "only an internship certificate to teach special education up to 2nd grade," whereas the student was in fourth grade (Req. for Rev. ¶ 8), as noted above, a unilateral placement need not employ certified special education teachers (Carter, 510 U.S. at 13-14).
[16] According to the Step Ahead representative, she gained information about the student's services through a "check-in form" sent to the service providers assigned to the student (Parent Ex. F ¶ 6). The Step Ahead representative testified that this form was an "extra tool to ensure that clear goals were set out for the [student], and specific methods [were] being used to target those goals and monitor progress" (id.). The Step Ahead representative further testified that the check-in form indicated that the student was below grade level in math and reading, and had difficulty with decoding, fluency, following directions, math computation, math problem-solving, organizing schoolwork, reading comprehension, spelling, writing, and following the classroom routine (id.).
[17] As the district notes, the sessions did not always occur at the same time (i.e., in September, the sessions took place at 3:00 or 3:10; in October, the sessions took place at 2:20; in November through February, most of the sessions took place at 1:45 (Parent Ex. H). However, contrary to the district's position, this is consistent with the Step Ahead representative's testimony that the sessions took place at different times (see Tr. p. 15). Incredibly, the district also asserts that the SETSS were not "provided as mandated" in the IESP and that, "at times the Student received more than, or less than, three hours of SETSS" (Req. for Rev. ¶ 8). But, of course, if the district wanted to ensure that the services were delivered exactly as contemplated by the IESP, it should have implemented the services as it was required to do. A unilateral placement need not adhere to an IEP or IESP, so long as the unilaterally obtained services are specially designed to meet the student's unique needs (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *7 [E.D.N.Y. Aug. 22, 2024] [finding that the fact that the student did not receive services at the unilateral placement "exactly as they were outlined in her IEP" did not make the unilateral placement inappropriate]).
[18] The Step Ahead representative testified that progress reports were developed twice per year, in December or January and then at the "end of the school year" (Tr. p. 16). The impartial hearing took place in May 2025, and, therefore, the parent could not have offered progress reports or session notes for the whole 2024-25 school year.
[19] By definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). Accordingly, contrary to the parent's argument, a connection between the special education services and the general education curriculum, whether such curriculum is provided at a public or nonpublic school, is not "a recent requirement" (Answer ¶ 15).
[20] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year. The AIR report in evidence used May 2022 data and the district submitted May 2023 data (Dist. Exs. 1-2), both of which preceded the 2024-25 school year at issue in this proceeding and would be relevant thereto (seehttps://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.
[21] 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" (seehttps://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).
[22] The ECEC covers the civilian economy, which includes data from both private industry and state and local government. One could make an argument that a company like Step Ahead should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation.
[23] 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.
[24] The parent's contract with Step Ahead references that the company would provide the student with services, including "related services" as identified in the student's June 2024 IESP, stating further that it was "committing to providing services . . . whether by [its] own employees/contractors or by working and partnering with other agencies" (Parent Ex. E). The Step Ahead representative stated she was not aware if the company offered counseling services (Tr. p. 14). There is no explanation in the hearing record as to why Step Ahead did not arrange for delivery of counseling services to the student during the 2024-25 school year.