STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-114
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 Kashif Forbes, Esq.
Woodruff & Luo, LLC, attorneys for respondent, by Jie Luo, 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 provide an appropriate educational program to respondent's (the parent's) daughter and ordered it to fund the student's private services delivered by Goldkey Learning LLC (Goldkey) for the 2025-26 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
During the 2022-23 school year (third grade), the student attended a nonpublic school at the parent's expense (Dist. Ex. 3 at pp. 1, 13). A CSE convened on February 16, 2023 and, finding the student eligible for special education as a student with a speech or language impairment, developed an IESP that recommended the student receive three periods per week of special education teacher support services (SETSS) in a group, one 30-minute session per week of individual and one 30-minute session per week of group speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week of individual physical therapy (PT) (id. at pp. 1, 10-11).[1]
On March 27, 2025, the parent signed a form to notify the district of her intent to place the student at a nonpublic school at her own expense for the 2025-26 school year (sixth grade) and to request that the student continue to receive public special education services (Parent Ex. E; see Dist. Ex. 11 at p. 2). The parent added language to the form to state that she had "not yet received any notice that the [district] w[ould] be providing providers for [her] child's services" and that she was "in the process of searching for [her] own providers," and would seek funding for such services from the district (Parent Ex. E).
By letter to the parent dated August 20, 2025, the district indicated that the district would provide the student's mandated IESP services during the 2025-26 school year and named four "certified special education teachers" who had been assigned to deliver SETSS at the student's nonpublic school (Dist. Ex. 10).[2] The letter further provided that, if the parent chose not to accept the services from the assigned special education teacher(s) and did not use the "SETSS voucher" provided to select another provider, the student could instead receive the services at a district public school "afterschool/weekend site" (id.).
On September 2, 2025, the parent entered a contract with Goldkey for the provision of three hours per week of SETSS to the student for the 2025-26 school year (Parent Ex. F).[3] By entering into the agreement, the parent "confirm[ed]" that the district had not "offered any suitable providers" to deliver the student's services (id. at p. 1).[4] In a letter to the district dated October 1, 2025, the parent stated she had been unable to locate providers to deliver the student's IESP services at the district's "standard rate" and that, therefore, she had "no choice but to implement the IESP" and seek district funding for private services (Parent Ex. D).[5]
According to the hearing record, a provider from Goldkey delivered SETSS to the student in the student's home for the 2025-26 school year (see Tr. p. 42; Parent Ex. H).[6]
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated October 1, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (Parent Ex. A). The parent expressed "concern[]" regarding the district's delay in convening a CSE meeting leading up to the 2025-26 school year, leaving the February 2023 IESP "outdated and expired" (id. at p. 2). In addition, the parent alleged that the district failed to implement the services mandated in the February 2023 IESP for 2025-26 school year and that the parent could not locate a provider willing to accept the district "contract" (id.). For relief, the parent sought funding for private services arranged by the parent for the 2025-26 school year "at the provider's contracted rate" (id. at p. 3). The parent also sought compensatory education for any services not delivered to the student "at the prospective provider's contracted rate" (id.).
In a response to the due process complaint, the district denied the parent's allegations and raised various defenses (Dist. Ex. 7).
A CSE next convened during the 2025-26 school year on October 27, 2025, and developed an IESP with a projected implementation date of November 10, 2025 (Dist. Ex. 5 at p. 1). The CSE recommended that the student receive five periods per week of group SETSS, one 30-minute session per week of individual and one 30-minute session per week of group speech-language therapy, and two 30-minute sessions per week of individual OT (id. at p. 11).
According to the district's events log, the district sent the parent an email on November 6, 2025 with a "SETSS form" relating to "Provider Assignment" for the student (Dist. Ex. 11 at p. 1).
The Goldkey provider reportedly increased the frequency of SETSS delivered to the student to five hours per week in November 2025 (see Tr. pp. 42-43).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 16, 2025 (Tr. pp. 1-63). During the impartial hearing, the parent's counsel indicated that the parent only sought "a remedy for the SETSS" (Tr. p. 5).[7] The IHO received 11 district exhibits and seven parent exhibits into evidence, including the affidavit testimony of the Goldkey education supervisor (supervisor) who appeared at the hearing for cross-examination (see Tr. pp. 8, 13, 38-50; Parent Exs. A; D-I; Dist. Exs. 1-5; 7-12). In addition, the parent testified pursuant to a subpoena signed by the IHO (see Tr. pp. 14-30). On December 16, 2025, the IHO issued an interim decision on pendency finding that the basis of the student's stay-put placement was the February 2023 IESP (Interim IHO Decision).
In a final decision dated December 16, 2025, the IHO found that "despite substantial efforts to provide the services mandated in Student's IESP" by assigning providers to deliver the services and providing the parent with notice thereof, ultimately, the district "failed to implement" the student's services, thereby denying the student a FAPE for the 2025-26 school year (IHO Decision at pp. 3, 6). As for the SETSS delivered by Goldkey, the IHO found the services appropriate to the extent that the student was "entitled to receive the mandated services set forth in the IESP" and, moreover, that the hearing record included information about the content of the SETSS sessions, the student's progress as a result of the services, and the way the services facilitated the student's access to the general education curriculum (id. at pp. 3, 7-10). However, upon weighing equitable considerations, the IHO found that the district's "documented offer of a SETSS provider remove[d] any equitable basis for Parent to secure [her] own SETSS provider at an enhanced rate" (id. at pp. 3, 7, 12-13). The IHO reasoned that the parent could not reject the provider assigned by the district and "recover costs" for a private provider "solely because Parent prefers a different provider" (id. at p. 7). The IHO also opined that the nonpublic school "deliberately obstructed [the district's] efforts to provide necessary services to Student" (id. at p. 13). Based on these findings, the IHO denied funding of private services at Goldkey's rate and, instead, ordered the district to "fund/reimburse" the student's SETSS "by an independent provider of Parent's choosing, at a reasonable market rate to be determined by [the district's] Implementation Unit " (id. at pp. 13, 15-16).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in finding that it failed to offer the student a FAPE and in ordering it to fund the SETSS unilaterally obtained by the parent. The district alleges that it assigned a SETSS provider to deliver the student's services before start of the school year, which the parent rejected. The district asserts the parent's rejection was based on wanting home services rather than school-based services, without any evidence that the parent contacted the district or the provider about home delivery. Accordingly, the district argues that it did not implement the SETSS due to the parent's rejection. With respect to the appropriateness of SETSS delivered by Goldkey, the district contends the IHO erred in finding that the parent met her burden, noting that the witness lacked direct knowledge and the hearing record did not include documentation of the student's progress towards goals, attendance records, session notes, report cards, or evidence tying services to classroom needs or the curriculum at the nonpublic school. As for equitable considerations, the district argues that, although the IHO found that the parent and nonpublic school obstructed the district's efforts to deliver the student's SETSS, the IHO erred in awarding relief in the form of funding of private services at a market rate. The district argues that the IHO should have denied the parent's requested relief in full. Finally, the district alleges that, to the extent the IHO's interim decision on pendency could be read as requiring public funding of private services, such an interpretation would be error. The district argues that, when the parent contracted with Goldkey, she rejected pendency and, therefore, the pendency order should be vacated.
In an answer, the parent responds to the district's allegations and argues that the IHO's decision should be upheld in its entirety. In the event it is found that the student "was entitled to no benefits from the IESP(s)," the parent requests that the matter be remanded for additional testimony from the Goldkey supervisor regarding "the agency's efforts (or lack thereof) to check [district]/provider availability."
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]).[8] "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.).[9] 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. Implementation/Assigned Providers
It is the district's responsibility to ensure that services are delivered, whether in accordance with an IESP, an individualized education program (IEP), or pursuant to the stay put rule (Educ. Law § 3602-c[2][a], [7][a]-[b] [providing that "[b]oards 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" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]; see 20 U.S.C. 1414[d][2][A]–[C] [explaining when IEPs must be put into effect]; In re Pelose, 66 A.D.3d 1342, 1343 [4the Dep't 2009] [noting that the "statute places the relevant mandates on the public school district in which the nonpublic school is located to provide services to students attending the nonpublic school"]).[10] When determining how to implement a student's IEP or IESP, the assignment of a particular school or provider is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]; K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154 [2d Cir. Mar. 30, 2010]; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 555 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]; see also Placements, 71 Fed. Reg. 46588 [Aug. 14, 2006]).
Here, there is no dispute over the appropriateness of the services recommended in the February 2023 or October 2025 IESPs, which as summarized above included provision for group SETSS three or five times per week, respectively, or that the student was entitled to receive those services during the 2025-26 school year (Dist. Exs. 3 at p. 10; 5 at p. 11). Prior to the start of the 2025-26 school year, by letter dated August 20, 2025, the district provided the parent with written notice in which it named four providers who would deliver SETSS at the student's nonpublic school and also provided the parent with additional options to pursue should she decide not to access the services from the named providers (Dist. Ex. 10). During the impartial hearing, the parent acknowledged that she received the August 2025 provider assignment letter from the district but contracted with Goldkey instead (Tr. pp. 26-28). The parent also acknowledged that the district sent her another SETSS form by email dated November 6, 2025 but that she took no action relating thereto (Tr. p. 27; see Dist. Ex. 11 at p. 1). The parent indicated that the assigned teachers would have delivered the student's SETSS during school and that the nonpublic school informed her that they did not want the student "taken out of the classroom" for "that many hours a week" (Tr. pp. 28-29). The parent testified that, for the past "three years," the student had received SETSS "at home" (Tr. p. 29).
On appeal, in arguing that the district did not meet its obligation, the parent asserts that the district's provider assignment letter was inadequate because the letter did not communicate "how the services would be delivered, how three periods of SETSS would be split between four providers, how large the service group would be, and what . . . the provider[s'] credentials were" (Answer at p. 1). The parent characterizes the assignment letter as "merely an offer to attempt to locate services" and argues that the hearing record lacked evidence that the assigned providers "were ready, willing, and able to deliver the mandated instruction" (id. at p. 3).
Initially, the parent made no fact allegations that the assigned providers had been unable to deliver the student's services as, in the due process complaint notice, the parent only stated broadly that the district had failed to implement the mandated services (Parent Ex. A at p. 2). Instead, the parent made no mention of the district's assigned providers at all, essentially ignoring them (id. at pp. 1-3). Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056). Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).
Even if the parent's due process complaint notice could be read to raise an issue with regard to the providers' ability to implement the IESP, the allegation is without merit. The parent's argument in this regard parallels caselaw that has arisen under the IDEA pertaining to an assigned public school site's capacity to implement an IEP. The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). A district's assignment of a student to a particular public school site (or, as in this case, to a particular provider) must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP or IESP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP or, as here, the IESP (see Z.C. v. New York City Dep't of Educ., 222 F.Supp.3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
The parent's claim that the student's services could not be implemented due to the number of providers named in the notice is based on nothing more than the parent's personal belief in how services should ideally be provided, but the selection of particular individuals to provide instruction or related services called for by an IESP or an IEP is a matter within the school district's discretion, not the parent's. With respect to how the services would be delivered or in what size group, these challenges do not relate to the providers' capacity to implement the IESP but, instead, relate to the appropriateness of the CSE's recommendations, which as noted above, were not challenged in this matter. Finally, regarding credentials, the parent does not allege that the providers lacked credentials, only that the notice did not describe them; yet, the August 2025 notice stated that the four providers were "certified special education teachers" (Dist. Ex. 10).[11]
As further described below, the hearing record suggests that Goldkey—a private, parent‑contracted entity—positioned itself in a role more akin to a self‑interested intermediary than an objective third-party provider of private instruction, effectively interposing its own financial interests between the parent and the district; however, both State law and IDEA contemplate that it is parents, not third‑party vendors, who participate in decision‑making and who may seek relief through due process. The parent argues that she was prevented from developing the hearing record regarding attempts made by the Goldkey supervisor to schedule services with the district's assigned providers; however, the parent testified that she was not aware of anyone engaging with the district on her behalf to find a different SETSS provider (Tr. pp. 29-30). Thus, the purported discussions between the Goldkey supervisor and the district did not affect the parent's decision to unilaterally arrange for the private delivery of SETSS to the student during the 2025-26 school year and, accordingly, further testimony from the educational supervisor's was not necessary.[12] Instead, the parent was quite clear that she rejected the district's providers because the notice reflected that the services would be delivered in the student's school, which the nonpublic school did not want, and that, therefore, she pursued delivery of the services in the home (Tr. pp. 28-29). Thus, the parent's decision was also based on the nonpublic school's unwillingness to permit on-site services; however, because the parent selected that placement, the resulting limitations do not establish a failure on the part of the district. Furthermore, the student's IESPs did not provide for delivery of home-based services; once again, the parent did not challenge the recommendations of the CSE; and the district was not required to offer SETSS in the home in order to meet its obligations to the student (see Parent Ex. A; Dist. Exs. 3; 5; see also Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174 [1988] [finding that, under Education Law § 3602-c, the location for delivery of equitable services should be determined on a case-by-case basis, "guided generally by [the student's] individual educational needs in the least restrictive environment"]). To the contrary, the parent alleged in her due process complaint notice that the parental mainstream placement was untenable without the supports, suggesting her view that it was best that the student be offered special education supports in a school environment, not separate from it (Parent Ex. A at p. 2).
Moreover, the direct testimony by affidavit of the Goldkey supervisor indicated that she "visit[ed] the schools where our services are provided" and that the student's progress was monitored through, among other things, "observation of the child in the classroom" albeit both individuals then indicated when confronted during live testimony that it was a "home" or "afterschool" case which, when viewed as a whole, presented the impression that Goldkey is provided access to the student's private school to some degree, but that the nonpublic school did not wish to allow the district providers access, at least according to the parent's understanding (Parent Ex. I at p. 2; Tr. pp. 29, 42).
The precise concerns over building access or the reasoning of the nonpublic school personnel should be a topic that a parents should be prepared to present evidence on in detail,[13] since the selection of a nonpublic school is a choice made exclusively by parents and the motivations and behavior of nonpublic school personnel are not subject to the control of public school districts. The foregoing evidence in this case is sufficient to conclude that the district did not fail in its obligation under the law to offer an appropriate plan of services and to notify the parent how and from whom to access those services. The parent was free to refuse, decline, or otherwise not accept the services offered by the district but, having done so, the district may not then be held liable for the lack of delivery under the circumstances presented in this case.
B. Pendency
Finally, the district asserts that the IHO erred by ordering pendency services in this matter. More specifically, the district contends that the student's IESPs contemplated public delivery of the student's special education program, and the parent, by unilaterally obtaining services for the student from Goldkey, a private agency, declined pendency services from the district. However, the IHO did not order pendency services from the private provider and instead, only found that the student's February 2023 IESP formed the basis for the student's pendency services, which the district does not dispute (see Interim IHO Decision at p. 1). Accordingly, the district is not aggrieved by the IHO's decision in this regard.
VII. Conclusion
Based on the foregoing, the district established that it offered providers to deliver the student's SETSS at the nonpublic school for the 2025-26 school year and the parent did not put forth any nonspeculative allegations that the assigned providers lacked the capacity to implement the student's services. Thus, the district did not violate its obligation to offer services to the student. Because the parent rejected the services from the district, the district may not be held liable for a failure to implement the IESP. Based on the foregoing, the necessary inquiry is at an end and there is no need to reach the issue of whether the unilaterally obtained SETSS delivered by Goldkey were specially designed to meet the student's needs or whether equitable considerations would have supported the parent's requested relief.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated December 16, 2025, is modified by reversing those portions which found that the district denied the student a FAPE for the 2025-26 school year and ordered it to fund/reimburse the student's SETSS by an independent provider of parent's choosing.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] According to the district's events log, the district sent the SETSS provider assignment letter to the parent via email on August 21, 2025 (Dist. Ex. 11 at p. 2).
[3] Goldkey has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The agreement provided that the parent could terminate the services in writing if the districted "start[ed] providing any of the said services" (Parent Ex. F at p. 2).
[5] The coversheet misidentifies Parent Exhibit D, but the pages are marked correctly.
[6] The parent concedes that the district implemented the student's speech-language therapy and OT services (see Answer at pp. 2, 3).
[7] The district submitted a motion to dismiss on the ground that the IHO lacked jurisdiction over the parent's IESP implementation claims, which the IHO denied (IHO Exs. I-II).
[8] 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]).
[9] 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.
[10] With regard to the implementation of a student's IEP, a denial of a FAPE occurs if there was more than a de minimis failure to implement all elements of the IEP, and instead, the school district failed to implement substantial or significant provisions of the IEP (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]).
[11] The parent contrasts the district's presentation of a list of provider names to meet its burden to the parent's burden to prove appropriateness of unilaterally obtained services, which includes evidence of contracts, demonstration of provider's credentials, methodologies, and progress monitoring (Answer at p. 3). However, the district cannot be held to prove the delivery of services when the parent rejected the services and, instead, unilaterally acted to obtain the services elsewhere.
[12] Moreover, the IHO did not abuse her discretion in limiting the Goldkey supervisor's testimony (see Tr. pp. 31-37). Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). State regulation provides that an IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony shall be made available for cross examination (8 NYCRR 200.5[j][3][vii][f]). State regulation also provides that the IHO "shall exclude any evidence that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]). There is no dispute that the IHO required affidavits in lieu of direct testimony in the matter and that the parent submitted an affidavit from the Goldkey supervisor, dated December 1, 2025, which did not describe the supervisor's purported communications with the district regarding assignment of SETSS providers (see Tr. p. 31; Parent Ex. I). During the December 16, 2025 hearing, the parent's attorney requested the opportunity to elicit additional direct testimony from the Goldkey supervisor, arguing that, when the affidavit was prepared, it was not known what the district would present for its direct evidence and that the district did not submit a "substantive" response to the parent's due process complaint notice (see Tr. pp. 31-32, 35). The IHO noted that the district did submit a response to the due process complaint notice and had disclosed its documents a week prior, including the provider assignment letter, that the parent had not submitted a request for rebuttal testimony or supplemental disclosures prior to the hearing date, and that the parent's attorney could not pursue additional information from the Goldkey supervisor because he did not like the parent's testimony; accordingly, the IHO declined the parent's attorney's request to pursue additional direct testimony on the documents (Tr. pp. 32-34, 36-37; see Dist. Ex. 7). The IHO acted within his discretion and I do not find it necessary to remand the matter as the parent requests.
[13] The undersigned would want to hear these concerns directly from the nonpublic school personnel through testimony or written communications from an employee of the nonpublic school on the school's letterhead, not through an intermediary.