STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-509
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 Sean Roberts, Esq., and 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 ordered it to fund the respondent's (the parent's) son's private services delivered by Always a Step Ahead (Step Ahead) for the 2024-25 school year. The appeal must be sustained.
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 student attended preschool during the 2020-21 school year and a CSE convened on March 18, 2021, found the student eligible for special education services as a student with a speech or language impairment, and created an IESP with a projected implementation date of July 1, 2021 (Parent Ex. B at pp. 1, 2).[1] The March 2021 CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS), two 30-minute periods per week of individual speech-language therapy, two 30-minute periods per week of individual physical therapy (PT), and two 30-minute periods per week of individual occupational therapy (OT) (id. at p. 10).
During the 2023-24 school year the student attended second grade at a nonpublic school and received SETSS, speech-language therapy, and OT (Dist. Ex. 4 at p. 1). A CSE convened on February 14, 2024 and created an IESP with a projected implementation date of September 5, 2024 (Dist. Ex. 2 at p. 1). For the 10-month 2024-25 school year, the February 2024 CSE recommended that the student receive three periods per week of group SETSS, two 30-minute periods per week of individual speech-language therapy, two 30-minute periods per week of individual OT, and one 30-minute period per week of individual counseling services (id. at p. 7). On May 24, 2024, the district sent the parent prior written notice, summarizing the recommendations of the February 2024 CSE and stating that the student's services would "be put into effect" beginning on June 11, 2024 (Dist. Ex. 3 at pp. 1-2).
On September 3, 2024, the parent entered into an agreement with Step Ahead for the provision of SETSS and related services to the student for the 2024-25 school year (third grade) (Parent Ex. G at pp. 1-2). Per the agreement, Step Ahead agreed to provide services consistent with the student's March 2021 IESP at rates of $200 per hour for SETSS and $250 per hour for related services (id. at p. 1).
On September 3, 2024, the district conducted a PT evaluation of the student (Dist. Ex. 7 at p. 1). On October 2, 2024, the CSE reconvened and created an IESP for the student with a projected implementation date of October 18, 2024 (Dist. Ex. 6 at p. 1). The October 2024 CSE continued to recommend that the student receive three periods per week of group SETSS, two 30-minute periods per week of individual speech-language therapy, two 30-minute periods per week of individual OT, and one 30-minute period per week of individual counseling services (id. at p. 12). On the same day, the district sent the parent prior written notice stating that the services would "be put into effect" on October 21, 2024 (Dist. Ex. 8 at pp. 1-2).
On December 17, 2024, the district sent the parent notice of a CSE meeting to be held on January 9, 2025 (Dist. Ex. 9 at p. 1). The CSE reconvened on January 9, 2025 and created an IESP for the student with a projected implementation date of January 22, 2025 (Dist. Ex. 10 at p. 1). The January 2025 CSE recommended that the student receive three periods per week of group SETSS, two 30-minute periods per week of group speech-language therapy, two 30-minute periods per week of individual OT, and one 30-minute period per week of group counseling services (id. at p. 17). On the same day, the district sent the parent prior written notice stating that the services would "be put into effect" on January 24, 2025 (Dist. Ex. 11 at pp. 1-2).
A. Due Process Complaint Notice
In an amended due process complaint notice dated February 12, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year by failing to develop an appropriate educational program or implement the student's recommended services (Parent Ex. A at pp. 1-2).[2] The parent alleged that the student's March 2021 IESP was and remained an appropriate educational program for the student and that the February 2024 and January 2025 IESPs each failed to offer the student an appropriate educational program (id. at p. 1). The parent contended that, due to the district's failure to implement the student's services for the 2024-25 school year, she had to seek out providers on her own who all charged "enhanced" rates (id. at p. 2).
For relief, the parent sought a pendency order, an order compelling the district to fund private services delivered based on recommendations set forth in the student's March 2021 IESP at the "full rate each provider or agency charges," and compensatory education to account for the denial of a FAPE to the student for the 2024-25 school year (Parent Ex. A at p. 2).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 28, 2025, and concluded on the same day (Tr. pp. 10-35). At the impartial hearing, the district introduced 13 exhibits into evidence and presented no witnesses, and the parent introduced 16 exhibits (IHO Decision at p. 3; Parent Exs. A-P; Dist. Exs. 1-13).
In a decision dated July 7, 2025, the IHO found a denial of a FAPE based on the district's failure to implement the student's recommended services for the 2024-25 school year (IHO Decision at p. 5). In discussing whether the district offered the student a FAPE, the IHO rejected the parent's argument that the March 2021 IESP reflected the student's operative IESP, finding that it was outdated and the hearing record did not support the student's need to receive PT and five periods of SETSS (id. at pp. 4-5). Instead, the IHO determined that the CSEs' recommendations contained within the February 2024, October 2024, and January 2025 IESPs of three periods per week of SETSS, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of OT, and one 30-minute session per week of counseling were appropriate because they were designed to allow the student to receive educational benefit and make progress (id. at p. 5).
Next, the IHO explained that an equitable remedy for a denial of a FAPE can include an award of compensatory education services (IHO Decision at p. 5). To account for the district's denial of a FAPE due to its failure to implement any of the student's services for the 2024-25 school year, the IHO applied a compensatory analysis and ordered the district to fund the parent's unilaterally obtained services consisting of three periods of SETSS per week, two 30-minute periods of speech-language therapy per week, and two 30-minute sessions of OT per week (id. at pp. 5-7). The IHO declined to grant the parent's request for the district to fund the student's unilaterally-obtained PT because the CSE had removed PT from the student's recommended program for the 2024-25 school year and the parent had not presented evidence demonstrating that PT was still necessary (id. at p. 6).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in awarding the parent funding for their unilaterally-obtained services and by failing to apply a Burlington/Carter framework. The district further argues that the parent failed to demonstrate that the unilaterally obtained services were appropriate. Specifically, the district notes the absence of any testimony regarding the substantive provision of services to the student or regarding the general education curriculum at the student's nonpublic school. The district also contends that the progress reports in evidence do not adequately explain how the student's unilaterally obtained services addressed his unique needs. Finally, the district argues that the IHO should have reduced or denied the parent's award due to excessive rates charged by Step Ahead as well as due to the lack of a 10-day notice.
By answer, the parent seeks affirmation of the IHO's decision. Specifically, the parent argues that the record demonstrates that she obtained qualified providers for the student due to the district's failure to implement his IESP and that, based on this alone, such services should be considered appropriate. Regarding equitable considerations, the parent contends that the district did not present sufficient evidence to establish a market rate for services, so there is no basis for a finding that Step Ahead's rates were excessive. Further, the parent argues that she never received a procedural safeguards notice from the district, so she was not required to provide 10-day notice.
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]).[3] "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.).[4] 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
Initially, neither party has appealed from the IHO's determinations that the student's February 2024, October 2024, and January 2025 IESPs were appropriate, but that the district denied the student a FAPE for the 2024-25 school year due to its failure to implement the student's services (IHO Decision at p. 5). Accordingly, those determinations are 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]). Accordingly, I next turn to address whether the IHO erred in the legal standard applied, whether the unilaterally obtained services were appropriate, and, if so, whether equitable considerations support the relief sought.
The district contends that the IHO erred in reviewing the parent's request for relief under a compensatory education approach rather than the Burlington/Carter framework.
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]).[5] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The IHO determined that the parent was entitled to funding for the costs of some of the unilaterally obtained services on a compensatory basis (see IHO Decision at pp. 5-7). In doing so, the IHO declined to apply the Burlington/Carter framework (id. at p. 3).[6] The IHO found that the student was entitled to the services in the February 2024, October 2024, and January 2025 IESPs, that the district had an obligation to implement the services and failed to do so, and then simply concluded that the private services obtained by the parent from Step Ahead were appropriate except for the unilaterally-obtained PT (id. at pp. 3-7). Besides the discussion about the unilaterally-obtained PT, these findings were made without any analysis of the student's needs, evidence of specially designed instruction provided by Step Ahead, or progress therefrom (id.). In essence it could be likened to default judgment in favor of the parent, which is not permissible where the nature and appropriateness of the relief sought by the parent is disputed. Based on the foregoing, I find that the IHO erred in failing to apply the Burlington/Carter three-part test to assess whether the parent was entitled to public funding of the cost of the SETSS that the parent unilaterally obtained from Step Ahead and whether equitable considerations supported the parent's request for relief.
A. Student's Needs
Turning to the appropriateness of the unilaterally obtained services, a brief discussion of the student's needs provides context for the issue to be resolved, namely, whether Step Ahead delivered specially designed instruction to the student to address his unique needs.
There were three IESPs in effect during the 2024-25 school year, and each described the student as having average cognitive and academic skills based on testing conducted in February 2024 (see Dist. Exs. 2; 6; 10; see also Dist. Ex. 4). According to the February 2024 IESP, the student was "able to engage in all grade level academics appropriately" and "access previously learned information and apply it across different settings and scenarios" (Dist. Ex. 2 at p. 2). The IESP reflected that, reportedly, the student demonstrated test-taking anxiety, and, according to the parent, required extra time to process information and needed OT and PT (id.). The February 2024 IESP included a variety of supports to address the student's management needs such as preferential seating, refocusing and redirection, visual aids, extra time on assignments, checklists, check-ins, positive reinforcement, multi-sensory learning environment, manipulatives, and movement breaks (id. at pp. 2-3). As identified within the February 2024 IESP, the student's annual goals addressed his ability to retell and summarize stories; identify the main idea with details; answer wh- questions; produce legible written work; improve visual-perceptual skills; regulate his emotions; demonstrate critical thinking skills; complete math problems with regrouping; and determine the appropriate math operation required to solve a problem (id. at pp. 3-6).
Additional details about the student's needs were included in the October 2024 IESP from a June 2024 SETSS progress report that indicated the student was "on level" in most areas but had difficulty with his "ability to recall and express details from a story," solve math word problems, and "add details . . . and organize his thoughts" for writing activities, further noting that the student required "time to process" information and "think about what he want[ed] to say" (Dist. Ex. 6 at pp. 4-5). The October 2024 IESP also incorporated information from the September 2024 PT evaluation of the student, which indicated that the student showed functional trunk and shoulder dissociation with walking but otherwise presented with functional upper/lower extremity strength and range of motion, as well as age-appropriate trunk and postural control (compare Dist. Ex. 6 at pp. 6-8, with Dist. Ex. 7). The October 2024 IESP did not recommend PT services (id. at pp. 8, 12). Various supports to address the student's management needs were included in the October 2024 IESP including small group work, leveled texts, redirection, repetition of material and directions, breakdown of materials, and verbal and gestural prompts (id. at p. 8). The student's annual goals within the October 2024 IESP were the same as those included in the February 2024 IESP (compare Dist. Ex. 2 at pp. 3-6, with Dist. Ex. 6 at pp. 8-11).
The January 2025 IESP incorporated information from the student's SETSS, OT, and speech-language therapy providers (Dist. Ex. 10 at pp. 3-6).[7] According to the provider information included in the January 2025 IESP, the student demonstrated "a flat facial affect" and a delay in his response time, required support to engage in conversation, did not ask for help, rushed through tasks, and struggled to maintain his "motivat[ion] to learn" (id.). The January 2025 IESP included the same management needs as the October 2024 IESP, as well as many of the same annual goals, although some additional goals focused on math, writing, and reading were added (compare Dist. Ex. 6 at pp. 8-11, with Dist. Ex. 10 at pp. 7-16).
In the February 2024 and October 2024 IESPs, the CSE recommended three periods per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and one 30-minute session per week of individual counseling (Dist. Exs. 2 at p. 7; 6 at p. 12). The January 2025 CSE recommended the same frequency of services but changed the individual speech-language therapy to group service as well as individual counseling to group service (Dist. Ex. 10 at p. 17).
B. Appropriateness of Unilaterally Obtained Services
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).
The hearing record did not include testimony from the student's parent or any of the student's providers. The documentary evidence includes certification and license information for the student's providers and progress reports developed by Step Ahead (Parent Exs. I; K; L; M). In addition, the hearing record includes a document entered into evidence by the parent and identified as "attendance records"; however, the document itself does not bear any title or reflect the origin of the document (Parent Ex. J). The attendance records reflect the student's name and entries for services, each identifying the provider's name and role; the date and time "in" and "out" for each session; the location of the service; and notes about the session (id.). The attendance records included information from the student's SETSS provider, occupational therapist, speech-language therapist, and physical therapist (id.).
As for SETSS, a January 2025 progress report indicated that the services were provided in the student's home to address "challenges" with reading, writing, math, and communication (Parent Ex. L at pp. 1-3). The January 2025 SETSS report included that the student demonstrated difficulty with his ability to stay focused and sometimes rushed through his work, which led to mistakes (id. at p. 1). In addition, the SETSS provider included that the student sometimes "trie[d] to avoid learning" and "resist[ed] assistance" (id. at p. 4). In reading, the SETSS provider indicated that the student "f[ound] it difficult to read with expression, use proper punctuation, or decode longer words" and that he sometimes "guesse[d] words" using the pictures, which led to "frequent mistakes" that impacted "his comprehension" (id. at p. 2). The student preferred to be read to and benefited from a shared reading approach with an adult (id.). In writing, the SETSS provider reported that the student "ha[d] trouble staying focused" on a single writing topic, "veer[ed] off into unrelated areas," and "le[ft] out key details" (id. at p. 3). The SETSS provider included that the student frequently "bec[ame] discouraged and frustrated" when he was asked to elaborate, and that this "le[d] to disorganized and incomplete writing" (id.). In math, the January 2025 SETSS progress report indicated that the student was sometimes "difficult to engage in learning" which "ma[de] it hard to introduce new material" (id. at p. 1). The January 2025 SETSS report noted the student "quickly los[t] concentration" and "need[ed] frequent prompts to stay on track" (id.). The SETSS progress report indicated that student "avoid[ed] making eye contact" when he spoke and "often focuse[d] only on the parts of the conversation that ca[ught] his attention" (id. at p. 3). Additionally, the January 2025 SETSS report included that "[w]hen [the student] . . . had a long day and [was] too tired to focus on learning, he either shut[] down and ignore[d] or attempt[ed] to walk away" and that, because of this, "he end[ed] up wasting valuable time that could have been used for learning" (id. at p. 4).
The attendance records include information for 49 SETSS sessions, all of which were provided in the home, after 5:00 in the evening (Parent Ex. J at pp. 1-6).[8] The attendance records also show that the student was provided between one and four SETSS sessions per week, from September 10, 2024 to January 9, 2025 (id.). According to the notes, the SETSS provider offered the student "guidance," "support," and "assistance" with homework or "school assignments," understanding class materials, and studying (id.). The provider included notes that she helped the student with spelling, writing tasks, social studies concepts, and math (id.).
The January 2025 SETSS progress report also included limited information about the kinds of strategies used to address the student's needs (Parent Ex. L). The provider noted that she used "prompts," "visual aids[,]" "educational digital games," "a shared reading approach," repeated instructions, and "positive reinforcement" (id.). The provider included goals in the January 2025 SETSS report, but it was not clear if those were addressed at the time the report was written or if they were recommended for the future (id.). The January 2025 SETSS report did not identify areas of progress, although the provider indicated that "[h]e ha[d] made it this far thanks to the support he ha[d] been getting" (id. at p. 5).
As for the student's speech-language therapy, the January 2025 progress report indicated that the student received two 30-minute sessions per week of speech-language therapy at school (Parent Ex. M at p. 1). The provider stated that the student was "quiet, cooperative, and attentive" during their sessions, but that he demonstrated "a flat facial affect" (id.). During conversations, the provider indicated the student "required frequent prompt[s] and specific questions to maintain" conversational "exchanges" and that the student needed "verbal and visual cues" to provide "details in his responses" (id.). The January 2025 speech-language therapy progress report indicated that the student demonstrated "notable delays in expressive language, reading comprehension, and writing skills" (id.). The therapist also noted that the student demonstrated a significant delay in "response time during reading comprehension activities," sometimes up to two minutes, despite his ability to "read[] at grade level with fluency and accuracy" (id. at p. 2). According to the progress report, the student "remain[ed] quiet when he encounter[ed] difficulty" and needed to improve his "confidence and independence" (id.).
The attendance records indicated the student received 20 speech-language therapy sessions, all at school, during the day between September 16, 2024 and January 13, 2025 (Parent Ex. J at pp. 7-14).[9] According to the attendance records, the student had between zero and two sessions of speech-language therapy per week that addressed the student's reading comprehension, writing skills, and "critical thinking" skills through the use of games, activities, graphic organizers, and verbal or visual "cues" or "assistance" (id.).
To address the student's language needs, the speech-language therapist included in her January 2025 progress report that she used "verbal and visual scaffolding," timers, "verbal and visual prompts," modeling, and "graphic organizers" (Parent Ex. M at pp. 1-2). In terms of progress, the therapist identified that the student demonstrated "slight improvement in his ability to retell, recall, and summarize information" (id.). The therapist also noted that the student "demonstrated steady yet slow progress in developing comprehension and expressive language skills" (id. at p. 2).
According to a December 2024 OT progress report, the student received three 30-minute sessions of individual OT per week to address his "sensory processing skills and attention, cognitive perceptual skills, fine and gross motor coordination[,] and therapeutic writing development" (Parent Ex. K at p. 1). The December 2024 OT report indicated that the student was easily overwhelmed in new places and with "new people," "bec[ame] overstimulated and over[-]regulated," had difficulty with writing skills, fine motor skills, and with "auditory and visual short[-]term memory recall" (id.).
The occupational therapist's attendance records indicated that the therapist provided 47 sessions in a location labeled "business," during both day and evening hours between September 15, 2024 and January 26, 2025 (Parent Ex. J at pp. 7-15).[10] The attendance records show that the student received between zero and three sessions of OT per week (id.). According to the notes, the occupational therapist addressed the student's writing, upper and lower body "strength and endurance," visual perceptual skills, and fine motor coordination through the use of lined paper, mazes, puzzles, exercises, obstacle courses, and sensory activities (id.).
The December 2024 OT progress report included two then-current goals that the therapist addressed and identified that the student "display[ed] small progress with therapeutic writing" (Parent Ex. K at p. 2). The December 2024 OT report did not identify any other areas of progress, nor did the report identify any strategies used by the therapist to address the student's needs, rather, the report indicated without elaboration that the student completed "multi-step activities," and "developmentally appropriate visual and auditory based problem-solving activities" (see generally id.).
The hearing record includes a PT progress report but it is unsigned and undated and, therefore, it is not clear that the document describes services delivered in the relevant timeframe (Parent Ex. N). The attendance records indicated that the student received five sessions of PT between December 11, 2024 and January 6, 2025 at home, primarily after 4:00 in the evening (Parent Ex. J at p. 16).[11] The physical therapist indicated that the student required support with endurance, maintaining balance, and core strength and that the therapist used various gross motor activities such as jumping and ball skills to address those needs (id.).
The available progress reports and attendance records did not include a significant amount of detail regarding the types of specially designed instruction provided to the student or his progress. Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). The student's SETSS provider, occupational therapist, physical therapist, and speech-language therapist offered few details about the content, methodology, or delivery of instruction they provided to address the student's needs, nor did they explain progress the student made with their services.[12], [13]
For example, the evidence reflects that the individual SETSS offered generalized academic support rather than instruction adapted in content, methodology, or delivery to address the student's unique needs (8 NYCRR 200.1[vv]). The SETSS attendance notes repeatedly describe that the provider offered "guidance," "support," or "assistance" with homework, school assignments, studying, and understanding class materials, delivered after school at home, with references to help in spelling, writing tasks, social studies concepts, and math, but with only very little delineation of individualized instructional methods or adaptations to the student's disability-related needs (Parent Ex. J at pp. 1-6). Rather, the support or assistance described is more akin to the type of general academic assistance that would be preferred by parents of any child, disabled or not (see Gagliardo, 489 F.3d at 115 [noting that reimbursement for a unilateral placement should be denied if "the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not"]). As for the strategies identified, while such supports may have benefited the student in a classroom setting, it is less clear how they assisted the student's ability to access the curriculum in the individual sessions with the SETSS provider in the home (see Parent Ex. L).
On that point, the evidence provided by the parent demonstrates that the student's SETSS was exclusively provided at home, and that most of the OT was provided after school hours at a location labeled "business." It is concerning that these services were provided after the student's participation in a full school day and the SETSS provider specifically noted that when the student became so tired after "a long day" that he stopped participating in the session and "wast[ed] valuable time" (Parent Ex. L at p. 4). There is no explanation in the hearing record regarding why the services were not incorporated into the student's school day. Without evidence about the school-based programming, the unilaterally-obtained services were described in isolation. The lack of evidence about what the general curriculum entailed makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]). The parent argues that the student's providers helped the student access his general education curriculum and the parent correctly notes that the student's speech-language therapy occurred at the student's school. However, the speech-language therapist provided individual services to the student and did not offer details about how her work with the student facilitated his access to the curriculum. Additionally, while the SETSS provider identified that she helped the student with his homework and to understand some classroom lessons and the occupational therapist identified that the student's motor needs impacted his academic performance, the information from the providers focused primarily on describing the student's needs, rather than how they addressed those needs or facilitated his participation within the curriculum.
As a final matter, the parent argues that evidence of "classroom methodology utilized, student performance, or dates of delivery of service of a specific certified provider" is not required as the parent need only prove that the program was appropriate at the time it was initiated (Answer ¶ 7). However, the Second Circuit has specifically rejected this interpretation of the parent's evidentiary burden. While retrospective testimony that a school district would have provided a student with additional services beyond those listed in an IEP or IESP may not be considered in assessing a district's offer of a FAPE or equitable services (see R.E., 694 F.3d at 186-88), the appropriateness of unilaterally obtained services must be considered taking into the totality of the evidence, "including post-enrollment evidence about [the student's] progress and services received" (Khanimova v. Samuels, 2026 WL 456507 [2d Cir. Feb. 18, 2026]).
Thus, taking into account the totality of the circumstances, the parent failed to meet her burden under the Burlington/Carter standard to demonstrate the appropriateness of the unilaterally-obtained services provided by Step Ahead.
VII. Conclusion
Having determined that the IHO erred in treating the requested relief as compensatory education and that the parent failed to demonstrate the appropriateness of the unilaterally-obtained services delivered by Step Ahead for the 2024-25 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of district funding of the private services (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision dated July 7, 2025 is modified by reversing those portions that found the relief sought by the parent appropriate and ordered the district to fund SETSS, OT, and speech-language therapy provided to the student by Step Ahead for the 2024-25 school year.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment at all times relevant to this appeal is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] The parent's initial due process complaint notice, dated October 10, 2024, was amended to include the parent's disagreements with the January 2025 IESP (compare Due Process Compl. Not., with Parent Ex. A).
[3] 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]).
[4] 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.
[5] 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]).
[6] The IHO indicated that she would have found the unilaterally obtained services to be appropriate had she applied the Burlington/Carter framework; however, the IHO later determined that the unilaterally obtained PT was not appropriate (IHO Decision at pp. 3, 6).
[7] The January 2025 IESP indicated that the student's occupational therapist provided him with three 30-minute sessions of individual OT per week (Dist. Ex. 10 at p. 6). The hearing record did not include an explanation as to why the student was provided with more OT services than he was recommended to receive (Parent Ex. B at p. 10; Dist. Exs. 2 at p. 7; 6 at p. 12; 10 at p. 17).
[8] According to the attendance records, 45 of the 49 SETSS sessions occurred between 5:00-7:00 p.m.; one session occurred between 6:00-6:30 p.m.; one session occurred between 6:30-7:30 p.m.; one session occurred between 7:00-8:00 p.m.; and one session occurred between 8:30-9:00 p.m. (Parent Ex. J at pp. 1-6).
[9] The attendance records indicated that all speech-language therapy sessions occurred between 11:30 a.m.-12:30 p.m. (Parent Ex. J at pp. 7-14).
[10] According to the attendance records, 19 of the OT sessions occurred between 9:30-10:00 a.m.; 16 sessions occurred between 6:00-6:30 p.m.; four sessions occurred between 6:30-7:00 p.m.; five sessions occurred between 7:00-7:30 p.m.; and three sessions occurred between 7:15-7:45 p.m. (Parent Ex. J at pp. 7-15).
[11] According to the attendance records, one PT sessions occurred between 10:00-11:00 a.m.; one session occurred between 4:00-5:00 p.m.; one session occurred between 5:00-6:00 p.m.; and two sessions occurred between 7:00-8:00 p.m. (Parent Ex. J at p. 16).
[12] It is well settled that progress is not a dispositive factor in determining whether a unilateral placement is appropriate, although it is relevant factor to be considered (see 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]); see also Frank G., 459 F.3d at 364; 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]) Frank G., 459 F.3d at 364).
[13] The parent did not cross-appeal the IHO's determination that the unilaterally obtained PT services were not appropriate for the student (see IHO Decision at p. 6). While the IHO erred in isolating the single service to find it inappropriate (see A.P. v. New York City Dep't of Educ., 2024 WL 763386, at *2 [2d Cir. Feb. 26, 2024] [describing that "[t]he first two prongs of the [Burlington/Carter] test generally constitute a binary inquiry that determines whether or not relief is warranted, while the third enables a court to determine the appropriate amount of reimbursement, if any"], given that the IHO's reasoning on this point is unchallenged, I will take it into account in considering the totality of the circumstances (Gagliardo, 489 F.3d at 112).