STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-570
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, 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 parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private services delivered by Strivright and Premier Therapy Solutions, LLC (Premier) for the 2023-24 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 regarding the student's educational history. A CSE convened on April 20, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP, recommending that the student receive two 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual occupational therapy (OT) (Dist. Ex. 3 at pp. 1, 3, 6-7).
During the 2023-24 school year at issue, the student attended kindergarten at a nonpublic school at the parent's expense (Parent Ex. F at p. 1; see Dist. Ex. 3 at p. 9).
On September 18, 2023, the parent entered into a contract with Strivright for the provision of two 30-minute sessions per week of speech-language therapy for the 2023-24 school year at a rate of $250 per hour (Parent Ex. C).[1] On October 11, 2023, the parent entered into a contract with Premier for the provision of OT for the 2023-24 school year at a rate of $300 per hour (Parent Ex. D).
A. Due Process Complaint Notice
In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to implement the special education services recommended in the student's April 2023 IESP (Parent Ex. A at pp. 2-3). For relief, the parent requested a pendency order, direct funding for the costs of unilaterally obtained services at the providers' contracted rates, and a bank of compensatory education hours (id. at p. 3).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 4, 2025, and concluded on March 4, 2025, after two days of proceedings (Tr. pp. 1-75). The district submitted five exhibits but did not call any witnesses, while the parent submitted nine exhibits and called three witnesses (IHO Decision at p. 3; Tr. p. 22-25, 28-58; see generally Parent Exs. A, C-J; Dist. Exs. 1-5).
In a decision dated July 23, 2025, the IHO found that the district failed to meet its burden of demonstrating that it offered the student a FAPE for the 2023-24 school year (IHO Decision at pp. 3, 6). However, the IHO determined that the parent did not submit sufficient evidence to demonstrate the appropriateness of the unilaterally obtained services (id. at pp. 6-8). Specifically, the IHO found the progress reports lacked information about strategies, methodologies, and specially-designed instruction (id.). Although not required to address equitable considerations, the IHO found that the parent cooperated with the CSE but failed to submit a ten day notice, and that the requested rates for services were excessive and would have been reduced had relief been awarded (id. at pp. 8-10). Finally, the IHO determined that an award of compensatory education would be inappropriate due to the fact that the parent unilaterally obtained services (id. at pp. 10-11).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding the unilaterally obtained services to be inappropriate. Specifically, the parent argues that the evidence submitted demonstrates that the unilaterally obtained services were addressing the student's needs as outlined in the April 2023 IESP. Additionally, the parent contends that the progress reports demonstrate that the student made meaningful progress during the 2023-24 school year. With respect to equitable considerations, the parent argues that the district did not submit sufficient evidence to demonstrate that the rates charged by Strivright and Premier were excessive. Finally, the parent objects to the IHO's decision to deny compensatory education after finding the unilaterally obtained services to be inappropriate.
By answer, the district seeks dismissal of the parent's request for review on the basis that the parent's notice of intention to seek review was improper.[2] The district argues that the parent's evidence was too vague and unspecific to demonstrate that the unilaterally obtained services were appropriate. Additionally, the district maintains that the IHO was correct in denying compensatory relief. Finally, the district contends that its evidence demonstrates that the rates charged by Strivright and Premier were excessive, and that any award should be further reduced due to a lack of a ten 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
A. Preliminary Matter—Denial of FAPE
Initially, neither party has appealed from the IHO's determination that the district denied the student "a FAPE on an equitable basis" for the 2023-24 school year (IHO Decision at pp. 4, 7). Accordingly, this determination has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
B. Unilateral Placement
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 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Strivright and Premier 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).
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's Needs
Although not in dispute, a brief discussion of the student's needs provides context for the following discussion of the student's unilaterally obtained services provided by Strivright and Premier.
The April 2023 IESP reported that the student knew primary colors and shapes, counted to 20, and matched a quantity to a number up to 10 (Dist. Ex. 3 at p. 1). According to the IESP, the student identified most letters, understood positional and directional concepts, recognized her name, and the names of others (id.). The IESP further reflected that the student could focus on the task at hand and follow directions, and her attention span was age appropriate (id.).
Regarding the student's speech-language needs, the April 2023 IESP indicated that the student had articulation and language delays, and her speech intelligibility was affected by syllable reduction, consonant deletion, and stopping (Dist. Ex. 3 at p. 1). According to the IESP, the student demonstrated limited vocabulary, limited use of sentence structure, and limited mean length of utterance, mixed up pronouns, and irregular and auxiliary verbs, and had difficulty listing items in a given category or identifying the category for a list of items (id.). She also had difficulty answering "wh" questions and making inferences and predictions (id.).
In the area of social/emotional development, the April 2023 IESP reported that the student was friendly, cooperative, and eager to please (Dist. Ex. 3 at p. 2). She followed classroom rules and performed two-step directions independently (id.). According to the IESP, the student's reaction to frustration was age-appropriate, but, when upset, she could be quiet and keep to herself (id.). The student shared, took turns, and got along well with peers and adults but sometimes preferred to be by herself and did not play or socialize (id. at pp. 1-2).
Speaking to the student's physical development, the April 2023 IESP reflected that the student had hand weakness and poor endurance, which affected her ability to engage in fine motor and visual motor activities, such as using the correct hand placement on scissors, cutting shapes fluidly, and completing projects (Dist. Ex. 3 at p. 2). According to the IESP, the student also had perceptual motor difficulties and struggled with completing a 10-piece jigsaw puzzle (id.). She could trace and color within the borders of a picture and hold a writing implement with a tripod grasp but complained about her hand being tired after engaging in visual motor activities due to hand weakness (id.). The IESP also reported that the student had difficulty with hand-eye coordination, which was evident when she had to copy a block design (id.). According to the IESP, the student had made progress with transitions between activities and benefited from the use of visual times and reward charts (id.).
2. Specially Designed Instruction
A review of the hearing record shows that Strivright provided the student with two 30-minute sessions per week of individual speech-language therapy that included instruction designed to address the student's articulation deficits and language delays (Parent Exs. F at p. 1; H ¶ 11). The May 2024 speech-language therapy progress report described the student's needs, which were consistent with those identified in the April 2023 IESP (Parent Ex. F at pp. 1-2; see Dist. Ex. 3 at pp. 1-2). The progress report also identified then-current annual goals targeting intelligibility and connected speech and expressive and receptive language skills, as well as the strategies used during speech-language therapy sessions, including traditional articulation drills, auditory bombardment, and minimal pairs, tapping of CVC words, "tapping out sounds," using different colored letters to write words to assist with blending, and reassurance and "extra help" to encourage the student to try new tasks (Parent Ex. F at pp. 1-2).
While a student's progress is not dispositive of the appropriateness of a unilateral placement, a finding of some progress is, nevertheless, 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]; Lexington County Sch. Dist. One v. Frazier, 2011 WL 4435690, at *11 [D.S.C. Sept. 22, 2011] [holding that "evidence of actual progress is also a relevant factor to a determination of whether a parental placement was reasonably calculated to confer some educational benefit"]).
In this case, the hearing record shows that the student made progress with the speech-language therapy provided by Strivright. During the impartial hearing, the Strivright director (director) testified that the student's progress was measured by taking data during sessions and speaking to the student's teachers and the parent to see if the goals were "carrying over" to the classroom and home settings (Tr. p. 31). According to the director, the speech-language pathologist took notes during speech-language therapy sessions, and Strivright issued three progress reports during the school year (Tr. pp. 31-32). As the IHO noted, the hearing record does not include any of these session notes; nonetheless, there is evidence of the student's progress in the speech-language therapy progress report (Parent Ex. F at pp. 1-2). Specifically, the speech-language therapy progress report identified the student's progress toward her annual goals, indicating that she could demonstrate the skills targeted in three of the four goals with "moderate assistance" and in one of the four goals with "minimal assistance" (id.). In addition, the report reflected that the student had shown improvement in her willingness to initiate conversation (id. at p. 2). According to the speech-language therapy progress report, the student had previously been "very hesitant" to speak because of her poor intelligibility but had gained confidence and now raised her hand in class and was not afraid to answer the classroom teacher's questions (id.). The speech-language progress report additionally reflected that the student socialized and verbally interacted with peers, which was "something she [did not] really do last year" (id.). The student had also progressed to being able to produce /f/ and /s/ blends in words with visual prompts and was beginning to produce /th/ sounds in initial word position in structured tasks (id.). Furthermore, she could use correct pronouns "they," "she," "it," "them," and "he," and answered "who," "where," and "what" questions about stories she listened to, formulated and answered questions involving exclusion and inclusion concepts, and tapped out "cvc" words (id.).
Turning next to the student's OT services, the hearing record shows that Premier provided the student with two 30-minute sessions per week of individual OT to address needs consistent with those identified in the April 2023 IESP, including her delays in fine motor skills, sensory integration, visual perceptual skills, visual motor skills and attention (Parent Ex. G at p. 1; see Dist. Ex. 3). According to the OT progress report, the student exhibited overall body weakness and often required assistance for fine motor tasks during OT sessions, and demonstrated poor endurance when writing, and difficulty with spacing and forming letters (Parent Ex. G at p. 1). She needed verbal cues to hold a pencil or crayon with a tripod grasp and required "moderate" assistance when completing visual perceptual tasks and finding items on a page when other items were present (id.). She also required verbal cues for proper cutting speed, accurate precision, and paper stabilization, and verbal prompting to complete tasks with two or more steps (id.). The OT progress report also included "current" annual goals, which targeted the student's proximal stability and bilateral integration, and fine motor, graphomotor, and perceptual motor skills and reflected the use of tabletop activities and jigsaw puzzles during OT sessions (id. at p. 2). In addition, during the impartial hearing, the student's occupational therapist testified that to support the student's academic skills for reading and writing, OT sessions included "doing exercises" and giving the student "tools and breaking down" classroom activities to allow the student to better grasp the activity (Tr. p. 48).
Regarding the student's progress with OT, the occupational therapist testified that the student's progress during the 2023-24 school year was documented in her session notes and was "based off . . . various . . . muscles assessment tests" that would "directly translate" to her fine motor tasks in the classroom (Tr. pp. 42-43).[6] According to the occupational therapist, she kept track of improvements in the student's handwriting by reviewing old handwriting samples and seeing how she improved year by year (Tr. p. 43). The OT progress report also noted that student had made improvements with her writing (Parent Ex. G at p. 1).
Under the totality of the circumstances, I find that, contrary to the IHO's determination, the parent met her burden of demonstrating the appropriateness of the unilaterally-obtained speech-language therapy delivered by Strivright and OT delivered by Premier.
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. Excessive/Unnecessary Costs/Services
The district has argued that the rates charged by Strivright and Premier are 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 Strivright by which the agency would provide the student with speech-language therapy at an hourly rate of $250 (Parent Exs. C; H ¶¶ 9, 11). The Strivright director testified that the service provider was paid $125 per hour (Tr. p. 32). The parent entered into a separate agreement with Premier by which the agency would provide the student with OT at an hourly rate of $300 (Parent Ex. D at pp. 2-3). A representative from Premier testified that the provider was paid $80 per hour with the possibility of an additional $60 per hour if the parent was successful against the district (Tr. pp. 44-45, 55-56).
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) and May 2023 data from the United States Bureau of Labor Statistics (USBLS) (see Dist. Exs. 1-2). The IHO determined that the testimony from the service providers alone provided a basis for a finding that the costs for services were excessive (IHO Decision at p. 11). With respect to fashioning appropriate equitable relief, I find that, in addition to the testimony, the AIR report and USBLS data and the district's arguments on appeal offer grounds to conclude that the rates charged by Strivright for speech-language therapy services and Premier for OT were excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from private companies like Strivright and Premier.
First, the AIR report draws data published by the USBLS, a United States government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 [N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]). I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education providers are paid in the New York City metropolitan region in a given year in which the data is published[7]. 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 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/ oes_35620.htm). Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.
The AIR report appears to develop "an approach to using data from the [USBLS] to calculate hourly rates for independently contracted providers" (Dist. Ex. 1 at p. 4). If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.
However, a parent facing the failure of the district to deliver his or her child's IESP services and who is left searching for a unilaterally selected self-help remedy would be unable to hire teachers or providers already employed by the district (unless a teacher or provider is "moonlighting" and thus dually employed), and the parent facing that situation would therefore not be able to negotiate for private services with the same bargaining power that the district holds. Thus, while the AIR report's reliance on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose—they are designed to ensure fair treatment among union members who are operating in public employment. But the fair treatment among district employees is of little or no interest to a parent who is trying to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees, and thus the district negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.
Fortunately, the USBLS data is not limited to district-employed teachers. It covers wages in the entire metropolitan region, which would include teachers and providers from across the spectrum including private schools, charter schools, and district special teachers. While the AIR report offered by the district relies on USBLS data from May 2022 and does not include data specifically for speech-language pathologists or occupational therapists, the district also offered the data for May 2023 that included these providers and I take judicial notice of the broader data reported by USBLS. The range of hourly wages will be considered below.
In my view, consideration of a range of wages takes into account that some local and private employers within the metropolitan region paid less than those in the district, and it leaves room for the fact that a few employers may have paid more. As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs. Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement. Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees, and private industry expressed as a percentage of salary, and for private industry the overhead expenses for educational services costs was 27.7 percent (see Employer Costs For Employee Compensation (ECEC) – June 2023, available at https://www.bls.gov/news.release/archives/ecec_09122023.pdf).[8]
Here, Strivright charged $250.00 per hour for speech-language therapy with $125.00 per hour being paid to the student's specific providers (see Tr. p. 32; Parent Exs. C at pp. 2-3; H ¶¶ 9, 11). The USBLS data indicates that in May 2023 hourly wages for "Speech-Language Pathologists" ranged from $22.34 in the 10th percentile, $34.11 in the 25th percentile, $48.71 in the median, $63.71 in the 75th percentile, to $76.64 in the 90th percentile (see Dist. Ex. 2 at p. 9). Taking into account the USBLS data, the rate of $125.00 per hour paid directly to the provider for speech-language therapy falls significantly above the 90th percentile. Additionally, the amount of indirect costs above the provider's hourly rate is $125.00 per hour or 50 percent of the $250 hourly rate charged by Strivright for speech-language therapy (Parent Exs. C; H ¶¶ 9, 11). This falls far above the 27.7 percent identified in the USBLS data. The Strivright director 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. Based on the foregoing, the evidence in the hearing record leads me to the conclusion that the parent arranged for speech-language therapy from Strivright at an excessive cost, as the district argues, and that it is more than what the district should be required to pay (see Tr. pp. 32-33; Parent Exs. C at pp. 2-3; H ¶¶9, 11). Taking into account an hourly wage falling at the 90th percentile and calculating for overhead costs equating to 27.7 percent of the overall rate, I find that a reasonable rate computes to $106.00 per hour subject to further reduction as discussed below.
Regarding the OT services provided by Premier, the agency charged $300.00 per hour with $80.00 per hour being paid to the student's specific providers (Tr. pp. 44-45; Parent Ex. D at pp. 2-3). The USBLS data indicates that in May 2023 hourly wages for "Occupational Therapists" ranged from $34.09 in the 10th percentile, $42.11 in the 25th percentile, $54.28 in the median, $66.42 in the 75th percentile, to $76.00 in the 90th percentile (see Dist. Ex. 2 at p. 9). A rate of $80.00 per hour is above the 90th percentile but not by a great amount and, therefore, I do not find that the hourly rate on its own is excessive. However, the amount of indirect costs above the provider's hourly rate is $220.00 per hour or 73.3 percent of the $300.00 hourly rate charged by Premier for OT (Parent Ex. D at pp. 2-3). This far exceeds the 27.7 percent identified in the USBLS data and, once again, given the lack of explanation in the hearing record, supports a finding that the parent arranged for OT services from Premier at an excessive cost (see Tr. p. 55; Parent Ex. D at pp. 2-3). Calculating for overhead costs equating to 27.7 percent of the overall rate, and the provider's wage as a known factor, a reasonable rate would compute to $110.65 per hour subject to further reduction as discussed below.
2. 10-day Notice of Placement
Although not required to address equitable considerations in this matter, the IHO nevertheless identified a lack of evidence regarding a 10-day notice as a potential factor to be considered (IHO Decision at p. 10). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
As noted by the IHO and the district, there is no evidence in the hearing record that the parent submitted a 10-day notice (IHO Decision at p. 10; Dist. Answer ¶15; see generally Parent Exs. A, C-J; Dist. Exs. 1-5). As it is undisputed that the parent did not provide the district with a 10-day notice of her intent to unilaterally-obtain speech-language therapy from Strivright and OT from Premier for the student and to seek public funding for those services, an additional 10 percent reduction of the hourly rate awarded to the parent to fund the services is warranted.
As such, I agree with the IHO that the rates charged by Strivright and Premier were excessive and that the parent failed to provide the district with a 10-day notice and that a reduction is therefore warranted as an equitable remedy. Accordingly, I will order the district to fund the costs of speech-language therapy at the rate of $95.40 per hour and OT at a rate of $99.59 (the $106.00 and $110.65 per hour calculated above, respectively, further reduced by 10 percent) upon submission of proof of delivery of the services.
VII. Conclusion
The parent sustained her burden of demonstrating the appropriateness of the unilaterally-obtained speech-language therapy from Strivright and OT from Premier, and equitable considerations partially weigh in favor of the parent's requested relief with reductions for excessive rates and a lack of a 10-day notice. In light of these determinations, I need not address the parent's remaining contentions, the necessary inquiry is at an end.[9]
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated July 23, 2025, is modified by reversing those portions which found that the parent did not meet her burden to prove that the unilaterally-obtained speech-language therapy from Strivright and OT from Premier were appropriate, and which denied the parent's request for the district to fund said services delivered during the 2023-24 school year;
IT IS FURTHER ORDERED that, upon proof of delivery, the district shall directly fund the costs of no more than two 30-minute sessions per week of speech-language therapy delivered to the student by Strivright during the 2023-24 school year at an hourly rate of no more than $95.40; and
IT IS FURTHER ORDERED that, upon proof of delivery, the district shall directly fund the costs of no more than two 30-minute sessions per week of occupational therapy delivered to the student by Premier during the 2023-24 school year at an hourly rate of no more than $99.59.
Dated:
Albany, New York
June 30, 2026
Sarah L. Harrington
STATE REVIEW OFFICER
Footnotes
[1] The agreement listed the speech-language therapy as the "Service Type" but also stated that Strivright intended to provide special education teacher support services (SETSS) at an hourly rate of $200, and speech-language therapy, physical therapy (PT), OT, and counseling services, each at an hourly rate of $250 (id.). Ultimately, the director of Strivright confirmed that the agency provided the student with two 30-minute sessions of speech-language therapy per week at a rate of $250 per hour for the 2023-24 school year (Tr. pp. 29-30; Parent Ex. H ¶¶ 9, 11).
[2] I have reviewed the notice of intention to seek review and I decline to exercise my discretion to dismiss the parent's appeal on the grounds stated by the district (8 NYCRR 279.2[f]).
[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 Strivright and Premier (Educ. Law § 4404[1][c]).
[6] No OT session notes are included in the hearing record (see Parent Exs. A, C-J; Dist. Exs. 1-5).
[7] The Occupational Employment and Wage Statistics data is published by the USBLS starting in May of each calendar year, and the AIR report in evidence used May 2022 data, which preceded the 2023-24 school year at issue in this proceeding and would be relevant thereto (see https://www.bls.gov/oes/tables.htm); however, I note that May 2023 data is the most relevant annual data published by the USBLS to the 2023-24 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.
[8] The ECEC covers the civilian economy, which includes data from both private industry and state and local government. One could make an argument that companies like Strivright and Premier should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation.
[9] Because this matter is being resolved in the parent's favor, it is not necessary to address alternative arguments relating to compensatory education relief.