STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-770
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 Marciana Logu, Esq.
The Law Office of Natan Shmueli, attorneys for respondent, by Natan Shmueli, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to fund the student's private services delivered by Diamond Achieving Corp. (Diamond) 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
During the 2021-22 school year the student was seven years old and in second grade at a nonpublic school selected by the parent (Parent Ex. B at pp. 1, 3).[1] A CSE convened on May 25, 2022, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of June 8, 2022 (May 2022 IESP) (id. at p. 1).[2] The CSE recommended that the student receive services consisting of five periods per week of group special education teacher support services (SETSS), two 30-minute sessions per week of individual speech-language therapy, one 30-minute sessions per week of group speech-language therapy, and one 30-minute session per week of individual counseling (id. at p. 10).
On May 29, 2023, the parent signed a district form letter requesting the provision of the student's special education services at a nonpublic school for the 2023-24 school year (fourth grade) (Parent Ex. C at p. 1). The district implemented counseling services but did not implement the student's SETSS or speech-language therapy, and, by September 4, 2023, the parent had contacted multiple SETSS and speech-language therapy providers on the district's list of eligible independent providers, none of whom, according to the parent, would accept the district's "standard rate" (Parent Exs. D; K ¶¶ 5-7). On September 4, 2023, the parent entered into a contract with Diamond for the provision of SETSS and speech-language therapy services to the student for the 2023-24 school year (Parent Ex. E).[3]
The CSE reconvened on February 5, 2024 and developed an IESP for the student with an implementation date of February 19, 2024 (February 2024 IESP) (Parent Ex. F at p. 1). The February 2024 IESP recommended that the student receive services identical to those recommended by the May 2022 CSE (compare Parent Ex. F at pp. 7-8, with Parent Ex. B at p. 10).
A. Due Process Complaint Notice
In a due process complaint notice dated October 10, 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 SETSS and speech-language therapy services recommended in the student's May 2022 and February 2024 IESPs (Parent Ex. A at pp. 3-4). While the parent acknowledged that the district implemented the recommended counseling services, she alleged that the district failed to assign providers to deliver the student's for SETSS and speech-language therapy and that she had been unable to locate providers to deliver the services at the district's "standard rates" (id.). For relief, the parent sought direct funding for unilaterally obtained services, including SETSS at a rate of $220.00 per hour and speech-language therapy at a rate of $250.00 per hour, for the 2023-24 school year (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 31, 2025, and concluded on the same day (see Tr. pp. 1-37). In a decision dated October 22, 2025, the IHO found that the district denied the student a FAPE for the 2023-24 school year by failing to implement the student's recommended services, that the parent's unilaterally-obtained services were appropriate, and that equitable factors weighed in favor of granting the parent's requested relief (IHO Decision at pp. 6-10). Specifically, the IHO found that the district failed to present any testimony or evidence regarding its provision of a FAPE and thereby failed to meet its burden of proof with respect to FAPE (id. at p. 4). Turning to the parent's unilaterally-obtained services, the IHO found that the parent located credentialed providers who delivered services consistent with the student's IESP, and that the student was making academic progress (id. at p. 9). Finally, the IHO determined that equitable factors weighed in favor of granting the parent's requested relief, and that the district failed to present evidence regarding an appropriate rate for services (id. at pp. 5, 9-10).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in finding that the parent's unilaterally-obtained services were appropriate and in failing to reduce the parent's awarded rates. Specifically, the district notes that the parent failed to produce attendance records or session notes and did not present evidence regarding the student's general education curriculum at the nonpublic school. The district further notes that the progress reports submitted by the parent were too vague to provide evidence of academic progress. Additionally, the district points out that the student was supposed to receive group services, but that Diamond was providing those services on an individual basis. Due to the general lack of evidence, the district argues that the parent failed to meet her burden of demonstrating the appropriateness of the services delivered by Diamond.
The district further argues that the rate of any awarded relief should be reduced. In support, the district points to missing information, including the pay per hour for each provider, whether the providers were employees of Diamond, and the portion of the agency rate that went towards overhead costs. The district also notes that, even though the parent was presented with a list of district-approved providers within her zip code, she nonetheless reached out only to providers from outside of her zip code.
Turning to the specific rates for services, the district argues that agency rates should be reduced by, first, identifying a provider rate from the independent provider rate schedule, dividing said rate by two to reflect that the CSE had recommended group rather than individual services, and limiting the agency's overhead costs to 27.7 percent of the provider's salary. Applying this approach, the district argues that Diamond's $220.00 per hour SETSS rate should be reduced to a rate of $63.99 per hour. Regarding Diamond's rate of $250.00 per hour for speech-language therapy, the district claims that the rate for individual services should be reduced to $114.93 per hour, and the rate for group services should be reduced to $71.83 per hour. Alternatively, the district argues that Diamond's rates should be reduced pursuant to the rationale articulated in Application of a Student with a Disability, Appeal No. 24-222, in which the SRO reduced an agency's rates using data from the American Institutes for Research (AIR) and the United States Bureau of Labor Statistics (USBLS). Using this approach, the district claims, would reduce the rate of Diamond's SETSS to $109.70 per hour, and the rates of individual speech-language therapy to $114.93 per hour, and group speech-language therapy to $71.83 per hour.
By answer, the parent argues that the IHO was correct regarding the appropriateness of the unilaterally-obtained services. Specifically, the parent notes that the services obtained were consistent with the student's IESP and were delivered by credentialed providers. Additionally, the parent argues that information regarding the student's general education classroom was contained in a progress report from the student's SETSS provider and demonstrated the student's academic progress. Regarding group size, the parent points to the fact that the agency did not have a group of similarly-situated students such that services could be delivered in a group setting.
Additionally, the parent argues that the IHO was correct to order the district to fund the student's services at the contracted rates. Specifically, the parent claims that an agency's overhead costs should be irrelevant to the calculation of a fair market rate. Further, the parent argues that it is unreasonable to expect a parent to determine an agency's overhead rates before entering into a contract. Further, the parent contends that using USBLS data to calculate a fair market rate is flawed because the data does not paint an accurate picture of rates for services in the parent's geographic area. The parent also notes that if it were possible to deliver the student's services at lower rates, then the district should have done so.
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]).[4] "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.).[5] 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, it is noted that neither party has appealed from the IHO's determinations that the district failed to implement the student's recommended program for the 2023-24 school year, and that the district thereby denied the student a FAPE for the 2023-24 school year. Accordingly, these findings have 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]).
A. Appropriateness of Unilaterally-Obtained Services
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Diamond 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]).[6] 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).
1. Student's Needs
Before turning to the appropriateness of the unilaterally-obtained services, it is first necessary to discuss the student's needs. According to the parent in her affidavit, at the beginning of the 2023-24 school year, the May 2022 IESP was in effect, and, subsequently, the February 2024 IESP was created by the district (Parent Ex. K ¶¶ 2, 3; see Parent Exs. B; F).
According to the May 2022 IESP, results of February 2022 psychoeducational assessments indicated that the student's overall "intellectual functioning" was "in the [v]ery [l]ow range," with a "[r]elative strength . . . in his processing speed" and a "[r]elative weakness . . . in his logical thinking skills when solving problems" (Parent Ex. B at pp. 1, 3). The student's academic skills were within "the [l]ow [a]verage to [a]verage" ranges, with his "math skills . . . better developed than his reading skills" (id. at p. 3). The May 2022 IESP noted that the student's "reading skills were delayed" except for his "phonemic awareness," and his "expressive and receptive language" skills were also described as "delay[ed]" (id.). According to the May 2022 IESP, the student's "vocabulary skills [were] limited and contribute[d] to his language difficulties" (id.).
Socially, the May 2022 IESP indicated that the student was "cooperative" during his recent evaluation, and he "respond[ed] to . . . encouragement despite a noted lack of interest and motivation" (Parent Ex. B at p. 4). The May 2022 IESP indicated that the student expressed "age-appropriate interests and concerns" although he appeared "somewhat indifferent with regard to the scholastic experience" (id.). According to the May 2022 IESP, "[t]he school principal stressed the need for counseling to address [the student's] self[-]esteem and frustration with regard to the learning process" (id.). The May 2022 IESP indicated that the student did not present with "needs or concerns" regarding physical development (id.).
The May 2022 IESP included a variety of supports to address the student's management needs such as pre-teaching, review of learned materials, multisensory materials, frequent check-ins, limited distractions, self-calming techniques, structured breaks as necessary, and on-task focusing prompts (Parent Ex. B at p. 5). Several annual goals were included in the May 2022 IESP to address the student's needs, including his ability to convey a central message from a story; read irregularly spelled words; read a passage fluently; use a graphic organizer to verbally explain his inferences about a central message of a story; identify the meanings of words; develop descriptions within writing tasks; complete math word problems; attend to tasks; identify positive personal characteristics; and request help when needed (id. at pp. 5-9).[7]
The February 2024 IESP included evaluative information from the May 2022 IESP as well as June 2023 speech-language and counseling reports to develop the IESP (Parent Ex. F at pp. 1-2). According to the February 2024 IESP, the student was nine years old and in fourth grade (id. at p. 2). The IESP indicated that, in speech-language therapy, the student demonstrated "expressive and receptive language delays" and a "limited" vocabulary (id.). Further, the February 2024 IESP indicated that the student "use[d] basic sentence structure" and "require[d] multiple repetitions to follow directions" or answer questions (id. at pp. 2-3). The February 2024 IESP included that the student had difficulty with the "recall [of] information after reading or listening to a passage," was unable to "answer simple WH questions," and could not "sequence events" from "a passage" or "a picture card story" (id. at p. 3). According to the IESP, the student had below grade-level phonemic skills and did not retell personal stories using story elements or appropriate sequential details (id.). Additionally, the IESP included that the student was "more alert" and demonstrated more success with tasks if he was "seen . . . earlier on in the day" (id.).
Socially, the February 2024 IESP described the student as "shy" and "sweet," and that he "want[ed] to please due to his lack of self[-]confidence" (Parent Ex. F at p. 3). Further, the IESP included that the student "[did not] have many friends and c[ould] be taken advantage of because of his good nature" (id.). The February 2024 IESP indicated that the student "need[ed] to learn how to stand up for himself and need[ed] to believe in his abilities" (id.). The IESP also noted that the student "struggle[d] academically in all areas" (id.). No physical development needs were included in the February 2024 IESP (id. at pp. 3-4).
The February 2024 IESP included a variety of supports to address the student's management needs such as redirection, repetition, comprehension checks and immediate feedback, modeling, work samples, preview and review of vocabulary words and questions, and verbal praise and encouragement (Parent Ex. F at p. 4). The student's annual goals addressed the student's ability to stand up for himself during peer interactions; increase his self-esteem; increase his receptive and expressive vocabulary; follow directions with spatial concepts; answer WH questions; sequence and retell picture stories; retell a story with and without picture cues; substitute, delete and add phonemes to words; use various reading strategies; appropriately sequence a story he retells; compute math problems; and improve his writing skills (id. at pp. 5-7).
2. 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).
Turning to the student's unilaterally-obtained programming, the parent testified via affidavit that the district provided the student with the recommended counseling services but did not provide SETSS or speech-language therapy (Parent Ex. K ¶¶ 5, 6).
Diamond delivered individual SETSS and speech-language therapy services to the student during the 2023-24 school year (see Parent Exs. L ¶¶ 6, 8-9; G; I). The supervisor of Diamond testified via affidavit that there was no "group of similarly situated students" available for the provision of the student's recommended group SETSS and group speech-language therapy (Parent Ex. L ¶ 6). According to the supervisor, the student's two SETSS providers were "certified to provide special education" and that one teacher provided about "four hours of SETSS per week to [the student]" and, beginning February 5, 2024, the other teacher "provid[ed] one hour of SETSS per week" to "fill" the student's mandate (Parent Ex. L ¶¶ 7, 8; see Parent Exs. G at p. 1; H). The supervisor also testified via affidavit that the student's speech-language therapist "was licensed to provide" the student with his recommended therapy (Parent Ex. L ¶ 9; see Parent Ex. J).
A SETSS progress report created on June 28, 2024, provided a description of the general education math, reading, and writing curricula, and described the "SETSS interventions" the providers used to address the student's needs and goals (see generally Parent Ex. G).
According to the June 2024 SETSS report, the student received a variety of "individualized" supports to help him access the general education curriculum and assist him with math skills including chunked information, highlighted parts of a problem, "visual aids," "hands-on activities," reinforcement of concepts, "[p]raise and encouragement," and "clear, step-by-step instructions" (Parent Ex. G at p. 1). The student's math goals included improving his ability to solve multiplication and division problems as well as word problems (id.). The June 2024 SETSS report indicated that the student did well with "counting, addition, and subtraction" and had "bec[o]me more familiar with two-digit multiplication and . . . division" (id.). The report also described that the student demonstrated the ability to "solve word problems with support" and benefited from the use of "checklists for division equations" (id.).
In reading, the June 2024 SETSS report indicated that the student "received tailored reading instruction, including leveled reading materials," "[g]raphic organizers, vocabulary worksheets, and guided reading sessions" to facilitate "decoding" and "comprehension" skill development (Parent Ex. G at p. 2). Additionally, the report included that the student was provided with "regular check-ins to ensure that [the student] grasp[ed] key concepts and offered encouragement to build his confidence when" he answered questions (id.). According to the June 2024 SETSS report, the student "struggle[d] with overall fluency" although he had "progressed in his decoding abilities" and "his ability to answer basic comprehension questions" (id.). The student's reading goals included reading a paragraph and a short story and defining vocabulary words (id.).
The June 2024 SETSS report indicated that, in writing, the student was provided with "sentence starters," "graphic organizers," practice with legibility, "modeling," and "assistance with spelling and word formation" (Parent Ex. G at p. 2). According to the June 2024 SETSS report, the student was able to "form basic sentence[s] and apply simple grammar skills" (id. at p. 3). The student demonstrated difficulty spelling "more difficult words and lack[ed] coherence in his writing" (id.). The June 2024 SETSS report indicated that the student's handwriting had improved "slightly," but that it was "still" difficult to read (id.). The student's goals addressed his ability to write legible sentences, spell words correctly, and organize his writing (id.).
According to the June 2024 SETSS report, the student was "generally in a good mood and [was] willing to participate with motivation and encouragement" (Parent Ex. G at p. 3). The report included that the student "ha[d] developed positive relationships with his classmates" and demonstrated "improvement in his willingness to participate during sessions" (id.). The June 2024 SETSS report included that the student's tendency to "walk[] around and talk[] about unrelated topics ha[d] decreased" and that he benefitted from "[c]lear instruction, modeling," "praise," and "positive reinforcement" (id.). When the student "ha[d] a clear understanding of what [was] expected" from a task, he "show[ed] excitement" (id.). The June 2024 SETSS report included that the student "require[d] frequent redirection and support to stay focused" (id.).
The description of the student in a July 2024 speech-language therapy progress report was similar to that in the February 2024 IESP (compare Parent Ex. F at pp. 2-3, with Parent Ex. I at p. 1). The student's difficulties with receptive and expressive language, vocabulary, and recall were included in the report, and the therapist noted that the student "ha[d] shown limited progress over the past year" (Parent Ex. I at p. 1). According to the July 2024 speech-language therapy report, the student required "multiple repetitions" and performed better when asked to identify individual details rather than answer questions about "the passage as a whole" (id.). The July 2024 speech-language report included that the student "require[d] extensive support" as "his expressive and receptive language skills remain[ed] significantly delayed" (id.). The report included a variety of goals for the student, including building his vocabulary, and improving his ability to follow directions, answer WH questions, sequence and retell a story, apply reading strategies, and make inferences (id. at pp. 1-2).
During the hearing, the supervisor confirmed that her agency provided the student with SETSS and speech-language therapy in an individual setting (Tr. pp. 28-29). The parent testified that the agency had informed her that they were unable to provide "a group setting" in which to provide either SETSS or speech-language therapy (Tr. p. 19).
In her affidavit, the supervisor provided a brief description of the student's needs, including that he had difficulty with directions, math and reading skills, recall, writing, and maintaining his attention in the classroom (Parent Ex. L ¶ 10). The supervisor also described the strategies used by his SETSS providers, as well as the progress noted in the student's skills as documented in the SETSS progress report (Parent Ex. L ¶¶ 11, 12; see Parent Ex. G). The parent testified that she "kept in touch with the therapists" through the "written reports" they provided as well as "text message[s]" and "calls" (Tr. pp. 19-20).
The hearing record shows that the student's providers assessed the student's needs, and, contrary to the district's assertions, considered their impact on his participation in the general education curriculum, and provided specially designed instruction to meet those needs. The district argues that there was no evidence of progress, but the June and July 2024 progress report indicated that the student had demonstrated at least some improvement with skills.[8] Overall, the hearing record supports the IHO's determination that the unilaterally-obtained services provided by Diamond were specially designed to meet the student's unique needs. Accordingly, there is no basis to disturb the IHO's finding regarding the appropriateness of the services provided by Diamond for the 2023-24 school year.
B. 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"]).
The district argues that the IHO erred in failing to reduce the parent's award, arguing that the parent made insufficient efforts to identify providers who would accept the district's approved rates and that Diamond's rates for services were excessive. Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).
The district's argument about the parent's efforts to locate providers from the district's approved list is not persuasive as it is the district's burden to assign a provider to implement the student's IESP. Similarly, although the CSEs recommended group SETSS and speech-language therapy, parents are allowed some flexibility in arranging for private services and it was not excessive for Diamond to deliver the student's services individually. While the district cannot offload its responsibility to locate providers to implement the IESP onto the parent, the parent is not automatically entitled to the full funding of the programming unilaterally selected. Here, the parent entered into an agreement with Diamond by which the agency would provide the student with five hours per week of SETSS at a rate of $220.00 per hour, and three 30-minute sessions per week of speech-language therapy at a rate of $250.00 per hour (Parent Ex. E ¶ 5).
Generally, an excessive cost argument focuses on whether the rate charged for service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.
On the question of reasonable market rates, during the impartial hearing, the district submitted May 2023 data from the USBLS (see Dist. Exs. 5; 9-10). I find that the wage information contained in the USBLS data is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data is published. 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 the 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 USBLS data describes a range of salaries and/or wages for particular occupations, which is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may pay more.[9] As for fringe benefits and incidental costs, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent (see Employer Costs For Employee Compensation (ECEC) – June 2023, available athttps://www.bls.gov/news.release/archives/ecec_09122023.pdf).[10]
Here, regarding SETSS, Diamond charged $220 per hour, but it is unclear how much of that was paid to the student's specific provider (Tr. pp. 27-28; Parent Exs. E; L ¶ 5). The supervisor from Diamond did not know which portion of the agency's rates that went towards profits, payment for overhead expenses, or salaries (Tr. pp. 27-28).
The USBLS data indicates that, in May 2023, annual salaries for "Special Education Teachers, All Other" ranged from $49,000 in the 10th percentile, $63,740 in the 25th percentile, $97,910 in the median, $146,200 in the 75th percentile, to $163,670 in the 90th percentile. As noted in prior matters, these annual salaries may be approximated to an hourly rate, taking into account that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long (see, e.g., Application of a Student with a Disability, Appeal No. 25-098).[11] Due to the lack of information regarding the portion of the rate paid directly to the provider, I will use an hourly rate of $83.68 per hour derived from the USBLS data, which, if annualized would approximate the median annual salary of $97,910 for a special education teacher in the geographic region. This would leave over $116 attributable to overhead costs, which falls far above the 27.7 percent identified in the USBLS data. Considering that the Diamond supervisor could not offer insight into the 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, the evidence in the hearing record leads me to the conclusion that the parents arranged for SETSS from Diamond at an excessive cost, as the district argues, and that it is more than what the district should be required to pay. On the other hand, some indirect or overhead cost is reasonable. Calculating for overhead costs equaling 27.7 percent of the overall rate, and account for the provider's wage at the median figure for the metropolitan geographic region, the total rate computes to $115.74. Accordingly, the district is ordered to fund the costs of SETSS at the rate of $115.74 for the 2023-24 school year.
Similarly, Diamond charged $250 per hour for speech-language therapy but did not provide information regarding how much of that rate is specifically paid to the provider (Tr. pp. 27-28; Parent Exs. E; L ¶ 5).
The USBLS 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.[12] Due to the lack of information regarding the portion of the rate paid directly to the provider, I will use the median hourly rate of $48.71 per hour from the USBLS data. This would leave over $201 attributable to overhead costs, which falls far above the 27.7 percent identified in the USBLS data. As with the SETSS, the hearing record does not explain the overhead costs, and the evidence in the hearing record supports the district's position that the parent obtained speech-language therapy from Diamond at an excessive cost, which the district should be required to pay. Again calculating for overhead costs equaling 27.7 percent of the overall rate, and accounting for the provider's wage at the median figure for the metropolitan geographic region, the total rate computes to $67.37. Accordingly, the district is ordered to fund the costs of speech-language at the rate of $67.37 for the 2023-24 school year.
VII. Conclusion
In sum, the evidence in the hearing record does not afford a basis to disturb the IHO's determination regarding the appropriateness of the unilaterally-obtained services provided by Diamond during the 2023-24 school year. However, I find that the rates charged by Diamond for SETSS and speech-language therapy to be excessive and have accordingly found it appropriate to reduce such rates.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated October 22, 2025, is modified by reversing that portion which directed the district to fund SETSS for five hours per week for the student at a rate of $220 per hour and speech-language therapy for three 30-minute sessions per week at a rate of $250 per hour for the 2023-24 school year;
IT IS FURTHER ORDERED that the district shall fund the costs of up to five periods per week of SETSS delivered to the student by Diamond during the 2023-24 school year at a rate not to exceed $115.74 per hour, subject to the parent presenting to the district proof of delivery of such services; and
IT IS FURTHER ORDERED that the district shall fund the costs of up to three 30-minute periods per week of speech-language therapy delivered to the student by Diamond during the 2023-24 school year at a rate not to exceed $67.37 per hour, subject to the parent presenting to the district proof of delivery of such services.
Footnotes
[1] The hearing record includes duplicative exhibits (compare Parent Exs. B, and F, with Dist. Exs. 11, and 15). For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content.
[2] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] Diamond has not been approved by the Commissioner of Education as a school or company with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] 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]).
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[6] 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 Diamond (Educ. Law § 4404[1][c]).
[7] The goal of reading irregularly-spelled words was included twice (Parent Ex. B at pp. 6-7).
[8] While a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).
[9] The 2023 data for the metropolitan area is available in a downloadable Excel format, or the most recent statistics offered can be searched using the USBLS Query System for "Multiple occupations for one geographical area" (seehttps://data.bls.gov/oes/#/home). A larger file with all regions for May 2023, including the New York-Newark-Jersey City metropolitan region is also available (https://www.bls.gov/oes/special-requests/oesm23ma.zip).
[10] The ECEC covers the civilian economy, which includes data from both private industry and state and local government. One could make an argument that a company like Diamond should fall in one of the different rows of private employers, but it would result in only nominal differences in calculation.
[11] Using 6.5 hours per day results in approximately 1,170 hours of instruction time for students during a school year, and similar to teachers, related services are typically provided to students on a similar schedule during the school day.
[12] The hearing record includes USBLS national wage estimates for speech-language pathologist (Dist. Ex. 9); however, I have relied on the estimates for the metropolitan region.