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 respondents' (the parents') son and ordered it to fund the costs of services delivered by Alpha Student Support (Alpha) at specified rates for the 2023-24 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 programing 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

A CSE convened on November 16, 2023 to develop an IESP for the student for the 2023-24 school year, with an implementation date of December 5, 2023 (Parent Ex. B at pp. 1, 13).  Finding the student eligible for special education and related services as a student with an other health impairment, the November 2023 CSE recommended five periods per week of direct, group, special education teacher support services (SETSS) in a separate location, delivered in Yiddish, two 30-minute sessions per week of individual speech-language therapy in a separate location or flexible location, delivered in Yiddish, and daily, full time individual paraprofessional services for health and ambulation (id. at pp. 1, 13).[1]^, [2]

A parent service contract with Alpha dated November 21, 2023, was electronically signed by the parent and by a representative from Alpha (Parent Ex. C at p. 2).

A. Due Process Complaint Notice

By due process complaint notice dated January 30, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1).  The parents argued that the district failed to implement the November 2023 IESP and failed to locate SETSS and related services providers (id. at p. 2).  The parents invoked their right to pendency and further requested that the district directly fund or reimburse the parents for the SETSS and related services mandated by the November 2023 IESP at enhanced rates (id. at p. 3).  The parents also reserved the right to seek compensatory educational services for any services that were mandated but not provided by the district (id. at p. 3).

B. Impartial Hearing Officer Decision

The parties convened for an omnibus impartial hearing for this matter and for four other matters before the Office of Administrative Trials and Hearings (OATH) on March 14, 2024 (Tr. pp 1-31; see Feb. 5, 2024 IHO Omnibus Settlement Order at p. 1).  During the impartial hearing, the parties submitted documentary evidence (Tr. pp. 6-7; see Parent Exs. A-C; Dist. Exs. 1-2).  The parents' attorney waived opening and closing statements—and at the IHO's suggestion—relied on his closing argument from a previous case which was part of the omnibus proceedings (Tr. pp. 7-9, 11; IHO Exs. I; II).[3]  The district submitted a written closing brief.

By decision dated April 14, 2024, the IHO found that the burden of proof on all issues was on the district and that it failed to provide the services recommended in the October 2023 IESP (IHO Decision at pp. 6, 8).  The IHO refused to apply a Burlington/Carter analysis to the parents' claims and found that the parents were entitled to the services on the November 2023 IESP (id. at pp. 5-9).  The IHO further found that the only evidence of a market rate came from the parents' evidence and that the district did not refute the evidence (id. at p. 10).  The IHO also found that the district must reimburse the parents or fund their properly licensed providers of their choosing at their customary rates (id.).  The IHO awarded direct funding of SETSS at a rate not to exceed $195 per hour, speech-language therapy at a rate not to exceed $225 per hour, and a paraprofessional at a rate not to exceed $60 per hour (id. at p. 11).  The IHO further directed the district to fund the services for the 10-month, 36-week 2023-24 school year beginning with the December 5, 2023 implementation date of the IESP until such time as the district implemented the November 2023 IESP (id.).

IV. Appeal for State-Level Review

The district appeals and argues that the IHO erred in failing to apply a Burlington/Carter analysis to the parents' claims and that the parents failed to demonstrate the appropriateness of their unilaterally obtained SETSS, speech-language therapy, and paraprofessional services.  The district also asserts that the IHO should have denied all of the parents' requested relief.  The district further argues that the matter should not be remanded because the parents affirmatively chose not to present evidence from the providers of their unilaterally obtained services.  The district also contends that the IHO erred in finding the parents' enhanced rates were reasonable.

In an answer, the parents generally deny the district's claims and argue that the IHO's decision should be affirmed in its entirety.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[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 individualized education program" (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

A. Unilaterally Obtained Services

The district does not appeal from the IHO's decision that its failure to implement the November 2023 IESP resulted in a denial of a FAPE to the student for the 2023-24 school year (IHO Decision at pp. 6, 8).  Accordingly, this determination has become final and binding upon the parties (see 34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).  In addition, the parents have not cross-appealed from any aspect of the IHO's decision, including her failure to address their request for compensatory education.  State regulation provides that a pleading must set forth "a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately," and further specifies that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][2], [4]; see Phillips v. Banks, 656 F. Supp. 3d 469, 483 [S.D.N.Y. 2023], aff'd, 2024 WL 1208954 [2d Cir. Mar. 21, 2024]; L.J.B. v. N. Rockland Cent. Sch. Dist.,  2024 WL 1621547, at *6 [S.D.N.Y. Apr. 15, 2024]; Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).  As such, the parents' request has been deemed abandoned and will not be further reviewed.

Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied.  In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement for the cost of the student's attendance there.  In their January 30, 2024 due process complaint notice, the parents alleged that the district had not implemented the student's November 2023 IESP and the parents were unable to locate providers willing to accept the district's standard rates (Parent Ex. A at p. 2).  As a result, the parents unilaterally obtained private services from Alpha for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof (id. at pp. 2-3).  Accordingly, the issue in this matter is whether the parents are entitled to public funding of the costs of the privately obtained 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"]).[6]

The parent's request for privately obtained services must be assessed under this framework.  That is, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents 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]).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to a review of the appropriateness of the unilaterally obtained services, the federal standard 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., 459 F.3d at 364; 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. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. Student's Needs

Here, the only evidence of the student's needs is the description of the student in the November 2023 IESP (Parent Ex. B).  The student's needs as set forth in the IESP are not in dispute (see Parent Ex. A at p. 2).

The November 2023 IESP indicated that the student was a bilingual student attending sixth grade at a nonpublic school and eligible for special education as a student with an other health-impairment (see Parent Ex. B; Dist. Ex. 2).  Administration of a cognitive assessment to the student yielded verbal comprehension, working memory, and processing speed index scores in the extremely low range, and visual spatial and fluid reasoning index scores in the very low range (Parent Ex. B at pp. 1, 3-4).  Academic achievement assessment results indicated the student's reading, writing, and math skills were in the extremely low range and his teachers estimated his skills in those areas to be at a kindergarten to first grade level (id. at pp. 2-5).  Annual goals included improving the student's ability to read a variety of words; explain and draw inferences from fourth grade texts to answer "wh" questions; read with fluency, accuracy, and appropriate rate; use spelling patterns to write words on a fourth grade level; write an informational/explanatory text; and solve two digit addition and subtraction problems with and without regrouping (id. at pp. 10-12).

Regarding language skills, the student answered simple yes/no and "what" questions, followed simple directions, and exhibited a "mild expressive language delay" characterized by "cluttering," an increased speech rate, and difficulty with word finding, and sharing thoughts and ideas (Parent Ex. B at pp. 5-6).  Due to the student's language difficulties, he struggled communicating with others and conveying his feelings appropriately (id. at p. 7).  Annual goals included improving the student's conversational speech intelligibility, and ability to retell, describe cause and effect, and predict outcomes of stories (id. at pp. 9-10, 11).

Socially, the November 2023 IESP indicated that the student "struggle[d] emotionally," had difficulty regulating and expressing his emotions and feelings, became "extremely hyperactive" and acted out when he was excited, and became angry over "little things" (Parent Ex. B at p. 6).  When the student was dysregulated, he lacked self-control, struggled to relate to adults and argued with them at times (id.).  The student "struggle[d] with being bullied in the classroom and c[ould] become aggressive with classmates when this occur[red]" (id. at pp. 6-7).  According to the IESP, the student needed redirection and refocusing consistently throughout the school day and he benefitted from positive reinforcement to maintain self-esteem and positive sense of self (id. at p. 7).

The November 2023 IESP reflected that the student had received a diagnosis of a genetic disorder and was "prone to falling" and he had difficulty walking throughout the school building and at home (Parent Ex. B at p. 7).  The student also had occurrences of dizzy spells and collapsing, and while he was able to participate in gross motor activities, he needed constant supervision and extra time to complete tasks (id.).  Regarding fine motor skills, the student struggled with writing, his handwriting was not legible, and he confused left and right (id.).

Management needs of the student included use of a graphic organizer, "visuals and tactiles," extra time, scaffolding, prompting, redirection and refocusing, positive reinforcement, complex tasks broken down, and repetition (Parent Ex. B at pp. 7-8).  Additionally, the IESP indicated that the student required paraprofessional services, "plans in place," and an annual goal to maintain his safety while navigating the school building throughout the school day (id. at pp. 7, 8, 12).

2. Appropriateness of Unilateral Services by Alpha

As described above, the November 2023 IESP identified significant areas of need with respect to the student's academic abilities, gross and find motor skills, social, and physical development (Parent Ex. B at pp. 1-11).  The student was recommended to receive five periods per week of direct, group, SETSS in a separate location, delivered in Yiddish, two 30-minute sessions per week of individual speech-language therapy in a separate location or flexible location, delivered in Yiddish, and daily use of a full time, individual paraprofessional for health and ambulation (id. at pp. 11-13).

With regard to the time period at issue in this matter, to wit: the ten-month academic 2023-24 school year, the hearing record includes a parent service contract between the student's father and Alpha, dated November 21, 2023, which was electronically signed by the parent and a representative of Alpha, wherein the parent "confirmed [his] understanding that [the student wa]s entitled to receive funding or reimbursement from the [district]" for the recommended services, that Alpha would "make every effort to implement the recommended services . . . with suitable qualified providers for the 2023-24 school year," and that the student's father was "liable to pay Alpha" the full amount for all services delivered by Alpha in the event he does not secure funding (Parent Ex. C at pp. 1-2).  The contract further stated that Alpha "intend[ed] to provide" SETSS, speech-language therapy, and a paraprofessional at specified rates (id. at p. 2).  The hearing record includes no further information about the services the parent obtained for the 2023-24 school year.

As a result, there is no evidence regarding Alpha's provision of the services identified in the contract.  Neither the parents, the providers, nor any representatives from Alpha appeared or provided written testimony at the impartial hearing, and the hearing record does not include any progress reports, service records, or even invoices.  Although the parents purport that the Alpha service providers were following the IESP, the parents must still come forward with evidence that describes the services and the delivery thereof.  The hearing record lacks any information about the level of services the student received or where or when the services were delivered and does not explain how any services that may have been provided by Alpha addressed the student's needs (see L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 490 [S.D.N.Y. 2013] [rejecting parents' argument that counseling services met student's social/emotional needs where "[t]here was no evidence . . . presented to establish [the counselor's] qualifications, the focus of her therapy, or the type of services provided" and, further, where "[the counselor] did not testify at the hearing and no records were introduced as to the nature of her services or how those services related to [the student's] unique needs"]; R.S. v. Lakeland Cent. Sch. Dist., 2011 WL 1198458, at *5 [S.D.N.Y. Mar. 30, 2011] [rejecting the parents' argument that speech-language therapy services met student's needs where parents "did not offer any evidence as to the qualifications of the provider of the therapy, the focus of the therapy, or when and how much therapy was provided"], aff'd sub nom, 471 Fed. App'x 77 [2d Cir. June 18, 2012]).

Based on the foregoing, the IHO erred in failing to apply a Burlington/Carter analysis to the parents' claims and erred in awarding the parents direct funding for SETSS, speech-language therapy and for paraprofessional services.  Accordingly, the IHO's decision must be reversed.

VII. Conclusion

Having found that the parents did not meet their burden of demonstrating the appropriateness of their unilaterally obtained services, the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated April 14, 2024 is modified by vacating those portions which ordered the district to directly fund the parents' unilaterally obtained services.