I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by HLER, LLC (HLER) for the 2023-24 school year. The district cross-appeals from the IHO's failure to address equitable considerations.  The appeal must be dismissed.  The cross-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 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

On March 14, 2018, a CSE convened, found the student eligible for special education as a student with a learning disability and developed an IESP for the student, recommending ten periods per week of direct, group special education teacher support services (SETSS), and three 30-minute sessions per week of individual occupational therapy (OT) (Parent Ex. B at pp. 1, 8).[1]^, [2]  The IESP noted that, at the time, the student was parentally placed at a nonpublic school (id. at p. 9).

There is no evidence in the hearing record regarding the student's educational history between the March 2018 IESP and the 2023-24 school year.

On April 17, 2023, the parent provided the district with notice that she placed her son at a nonpublic school at her expense for the 2023-24 school year and wanted the district to provide the student with special education services for the 2023-24 school year (Parent Ex. K).

By letter dated August 23, 2023, the parent, through her lay advocate, notified the district of her intent to unilaterally obtain services through a private agency at "an enhanced market rate" due to the district's failure to assign a provider for services mandated for the student for the 2023-24 school year (Parent Ex. D). 

The parent signed an enrollment agreement with HLER for the agency to provide services to the student for the 2023-24 school year as listed in the last agreed upon IEP, IESP, or administrative decision (see Parent Ex. C).[3]^, [4]  Under the terms of the contract, the parent agreed to be responsible for any fees not covered by the district (id.).

A. Due Process Complaint Notice

In a due process complaint notice, dated July 15, 2024, the parent, through her lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to develop and implement a program of services for the student (see Parent Ex. A).  More specifically, the parent asserted that the March 2018 IESP was the last program the district developed for the student and that the district failed to implement that IESP for the 2023-24 school year (Parent Ex. A at pp. 1-2).  The parent indicated that if the district did not fulfill its obligations, she would implement all necessary services for the student and seek district funding for those services (id. at p. 2).  As relief, the parent requested a pendency hearing and sought a declaratory finding that the district denied the student equitable services and a FAPE for the 2023-24 school year (id. at p. 3).  In addition, the parent requested an order awarding funding from the district for 10 periods per week of SETSS, and three 30-minute sessions per week of OT, at an enhanced rate set by the student's provider for the 2023-24 school year, as well as a bank of compensatory education services for any mandated services not provided by the district, with the compensatory services also to be provided at an enhanced rate set by the student's provider (id.).[5]

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on November 8, 2024 and concluded on the same day (Tr. pp. 1-14).[6]  In a decision dated November 14, 2024, the IHO found that the district failed to satisfy its burden that it provided the student with equitable services and that the parent failed to satisfy her burden of proving that the SETSS delivered to the student during the 2023-24 school year by HLER were appropriate (IHO Decision at pp. 3, 5).[7]  The IHO noted that the parent relied on an IESP "created for [the] [s]tudent more than six years ago" and there was no explanation as to why the student required the same level of SETSS that the student received six years prior (id. at p. 5).  The IHO ordered the district to evaluate the student for "all known or suspected disabilities within 20 days of this order and the parent was ordered to "immediately" consent to "all evaluations" of the student (id. at p. 6).

IV. Appeal for State-Level Review

The parent, through her lay advocate, appeals and the district cross-appeals.[8]  In her request for review, the parent claims the IHO improperly concluded that the SETSS provided to the student during the 2023-24 school year were not appropriate because the hearing record lacked information as to the student's then-current strengths, weaknesses, and needs.  As relief, the parent requests the IHO's decision be reversed and the parent be awarded the contracted for rate for the SETSS provided to the student by HLER during the 2023-24 school year.

In its answer and cross-appeal, the district claims the IHO correctly found that the SETSS provided to the student during the 2023-24 school year were not appropriate.  The district also argues in its cross-appeal that equitable considerations weighed against the parent's requested relief and if funding is awarded it should be at a reasonable market rate.

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]).[9]  "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.).[10]  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 challenge the IHO's determination that it failed to offer a FAPE or equitable services to the student for the 2023-24 school year.  Therefore, that determination has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

1. Legal Standard

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 HLER 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]).[11]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  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 Rowley, 458 U.S. at 203-04; 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).

2. Student's Needs

While not in dispute, a brief discussion of the student's needs provides context for the issue to be resolved, namely, whether HLER delivered specially designed instruction to the student to address his unique needs during the 2023-24 school year.

To the extent the IHO faulted the parent for the lack of "independent information" regarding the student's current strengths and weaknesses, it was not the parent's responsibility to evaluate the student and identify his needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  However, the parent still bore the burden of proving that the private school, consisting of the unilaterally obtained special education services, offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  And, as specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1 [vv]; see 34 CFR 300.39 [b][3]), it is expected that in order to meet her burden, the parent should provide some information regarding the curriculum provided to the student at the nonpublic school and how the student was functioning in the nonpublic school.

In this instance, the March 2018 IESP and undated progress report prepared during the 2023-24 school year (fifth grade) are the only information available in the hearing record which identify the student's educational needs.

According to the March 2018 IESP, an undated psychological evaluation found the student demonstrated average cognitive abilities in all areas, with the student earning a full-scale IQ of 101 at the 53rd percentile, a prorated nonverbal IQ of 109 at the 73rd percentile, and a prorated verbal IQ of 93 at the 32nd percentile (Parent Ex. B at p. 1).  The student was reported to exhibit above average quantitative concepts and average nonverbal reasoning and puzzle skills (id.).  In verbal areas, the student's word knowledge, understanding of spatial/positional terms, short-term memory for sentences, and general fund of information were noted to be age appropriate (id.).  Academic achievement testing was not reported in the March 2018 IESP (id. at pp. 1-2).  However, the IESP indicated that the student, who was almost five years old at the time the IESP was developed, exhibited some readiness skills such as counting 1-10 and receptively identifying colors, shapes, and alphabet letters (id.).  In terms of social development, the March 2018 IESP indicated the student's social skills were adequate but noted that he was sensitive and sometimes cried instead of communicating his needs and also often played on his own (id. ap. 3).  The March 2018 IESP stated that the student benefitted from SETSS for small group instruction and "to help him succeed academically" and indicated that the student would be provided with "simplified directions, positive praise and reinforcement, re-directional and refocusing prompts" on an as needed basis (id.).  Additionally, the March 2018 IESP noted that the student's areas of need included attention, focusing, fine motor skills, and visual perceptual skills (id.).  The March 2018 IESP listed goals for math, reading, attention, motor coordination, handwriting, and visual motor skills (id. at pp. 4-5).

In an undated HLER progress report prepared during the 2023-24 school year (fifth grade), it was reported that the student read and decoded at grade level; however, his reading comprehension skills were below grade level (Parent Ex. F at p. 1).[12]  According to the progress report, the student struggled with summarizing, identifying the main idea, locating supporting details when answering questions, and using context clues to define unfamiliar words (id.).  In addition, when answering comprehension questions, the student tended to provide multiple answers, hoping one would be correct (id.).  The progress report noted the student had a good attitude toward reading and enjoyed reading aloud, but he overlooked punctuation which impacted his reading fluency (id.).

In addition, the progress report indicated the student's writing remained a challenge particularly when responding to prompts (Parent Ex. F at p. 2).  The student's writing lacked organization, coherence, and details especially when required to formulate a paragraph or structured response (id.).  The progress report also indicated that the student produced answers in list format rather than by creating a cohesive paragraph, which the SETSS provider linked to his difficulty in summarizing texts and formulating a clear introduction and conclusion (id.).  Furthermore, the student showed errors in grammar, capitalization, and punctuation (id.).

In the area of mathematics, the progress report indicated the student was below grade level "in areas requiring fluency and accuracy in multiplication, division, and word problems" (Parent Ex. F at pp. 1-2).  The student understood basic multiplication facts but struggled with fluency with "higher numbers like 7, 8, and 12 times tables" (id. at p. 2).  Additionally, the student tended to rush through problems resulting in careless mistakes (id.).  Finally, the student had difficulty with multi-step word problems due to confusion over what operation to use, resulting in incorrect solutions (id.).

Socially, the progress report indicated the student was well-adjusted and enjoyed positive relationships with peers and adults, followed school rules, participated in classroom activities, and had a strong understanding of his personal academic needs (Parent Ex. F at p. 2).  The student occasionally struggled with academic frustration when tasks became too challenging and the SETSS provider recommended counseling to assist the student in managing any frustration that arose from academic struggles (id.).

In connection with the student's physical development, the progress report stated the student was in good physical health and had age-appropriate mobility and coordination (Parent Ex. F at p. 2).  The student's handwriting was reported to be legible, but "could be improved for clarity and neatness" when completing writing activities under time constraints (id.).

3. Unilaterally Obtained SETSS

The parent appeals from the IHO's determination that she did not meet her burden to demonstrate the appropriateness of the unilaterally obtained services.  Specifically, the parent asserts that the IHO incorrectly determined that the hearing record lacked evidence regarding the student's current strengths, weaknesses, and needs, that the progress report merely restated most of the student's March 2018 IESP, including the goals, and that the evidence regarding progress was vague and self-serving.

The evidence shows that HLER "offer[ed] a range of special education services" including SETSS and OT, and that HLER sent the parent a contract indicating it would provide services "in frequency and duration as listed in the last agreed upon" IESP (Parent Exs. C at p. 1; E ¶1).  The parent asserts that the March 2018 IESP was the last agreed upon educational program for the student and the March 2018 IESP included recommendations for SETSS and OT (Parent Exs. A at p. 1; B at p. 8).  However, it appears that during the 2023-24 school year, the parent only obtained SETSS for the student (see Parent Ex. E ¶¶ 2, 4).

The HLER financial department administrator (administrator) testified by affidavit that HLER delivered SETSS to the student beginning on September 7, 2023 which continued "throughout the entire school year," with June 6, 2024 as the last date of service according to the SETSS providers' time sheet (Parent Exs. E ¶ 2; G at p. 20).[13]

The administrator testified that the student had two SETSS providers during the 2023-24 school year, and that both were State "certified as special education teachers" (Parent Ex. E ¶¶ 3, 4).  According to the progress report, the student's SETSS sessions occurred in both individual and group settings (Parent Ex. E at p. 1).  The report further noted that his "small-group sessions and individualized instruction ha[d] been crucial in helping him maintain his academic standing" (id. at p. 3).  The SETSS report noted that the student "receive[d] additional speech and comprehension support as part of his specialized instruction" (id. at p. 1).  The student also participated in small group sessions to "address his needs" and provide individual "attention and immediate feedback" (id. at pp. 1-3). The SETSS providers reported that the student "require[d] substantial support to break down information, both in reading and math, in order to process tasks effectively" (id. at p. 1).  It was also noted that the student's expressive and receptive language skills were delayed which impacted his "overall performance across subjects" (id.).

To support the student in reading, the SETSS providers used graphic organizers, encouraged re-reading, and used guided questions (Parent Ex. F at p. 1).  The student required practice for his comprehension and "response accuracy" (id.).  Writing was a noted challenge for the student in terms of organization, coherence, and detail, as well as difficulties with grammar, punctuation, and capitalization (id. at p. 2).  The SETSS progress report indicated writing interventions focused on breaking down writing assignments into smaller steps, use of graphic organizers, and an emphasis on creating topic sentences, organizing main ideas, and using proper grammar (id.).  In math, the SETSS progress report stated the student was performing below grade level in the areas of "fluency and accuracy in multiplication, division and word problems," which the SETSS providers addressed through the use of visual aids and "color-coded systems" to assist the student with following the steps in long division and multi-step problems; models; and a small group setting (id.).  The student was noted to thrive in an environment that incorporated visual and auditory supports, and he benefitted from "auditory explanations and repeated verbal guidance," hands-on activities, and frequent practice in a small group setting (id.).  Lastly, the HLER progress report noted several goals for reading, writing, and math to be achieved by the student in June 2025 (id. at p. 4).

Overall, the evidence in the hearing record does not support a finding that the parent met her burden to prove that the services she unilaterally obtained for the student constituted appropriate instruction specially designed to address the student's unique educational needs. As noted above, specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1 [vv]; see 34 CFR 300.39 [b][3]).  The hearing record, while not robust in this regard, contains some evidence of the strategies and materials the student's providers utilized during their sessions with him for the 2023-24 school year.  However, there is some question as to the student's functioning in the general education classroom during the 2023-24 school year, which cannot be answered without evidence such as the student's report cards or other evidence explaining how the student was performing with the curriculum being provided.  Notably absent from the hearing record, is evidence regarding the curriculum at the nonpublic school, the student's non-SETSS instruction, and how the SETSS were connected to the instruction provided by the nonpublic school. In reviewing the progress report it is worth noting that although the report identified two individuals who provided services to the student, the report was unsigned and did not identify who completed the report (Parent Ex. F).  Additionally, relevant to how the student was functioning with the provided services, the report noted the student was below grade level in reading comprehension and mathematics; however, the report did not identify at what level the student was functioning (id. at pp. 1, 2).  In discussing the student's reading comprehension, the report noted that the student would regress, without "sustained support," in his ability to interpret questions and find supporting information (id.).  In addition, the report specifically noted that the student's "progress in reading need[ed] to be continually monitored to prevent these skills from plateauing or regressing" (id. at p. 2).  However, without having more information as to how the student was functioning within the classroom, it is not possible to determine if 10 periods per week of SETSS were sufficient to address the student's identified needs, or if the student needed more "continual" support in his classroom.

Accordingly, due to the lack of information regarding the student's functioning within his classroom at the nonpublic school, information which should have been in the parent's possession as she placed the student at the nonpublic school, the hearing record does not support overturning the IHO's determination that the parent did not meet her burden of proving that the unilaterally obtained services were appropriate.

VII. Conclusion

As set forth above, the IHO's determination that the SETSS delivered by HLER during the 2023-24 school year were not appropriate is affirmed.

I have considered the parties' remaining contentions and find it unnecessary to address them in light of my determinations above.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.