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 required respondent (the district) to fund the costs of her daughter's private services delivered by Special Touch by S&R Inc. (Special Touch) for the 2023-24 school year at a reduced rate.  The district cross-appeals from that portion of the IHO's decision which found that the parent's unilaterally obtained services were appropriate for the student.  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

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.  The evidence in the hearing record concerning the student's educational history is sparse.  The student is a bilingual Yiddish-speaking eleven-year-old girl who presents with receptive and expressive language difficulties and delayed reading skills (Parent Ex. G at p. 1).

Briefly, a CSE convened on March 5, 2023, and developed an IESP with an anticipated implementation date of March 19, 2023 and an anticipated annual review date of March 5, 2024 (Parent Ex. B at pp. 1, 6).[1]  Finding that the student was eligible for special education as a student with a speech or language impairment, the March 2023 CSE recommended that the student receive three periods per week of direct, group special education teacher support services (SETSS) in Yiddish, along with two 30-minute sessions per week of individual speech-language therapy in Yiddish and two 30-minute sessions of individual occupational therapy (OT) in English (Parent Ex. B at pp. 1, 6).[2]

On August 31, 2023, a contract was electronically signed by the parent and by a representative from Special Touch (Parent Ex. C).[3]  The contract indicated that Special Touch intended to provide the student with SETSS, speech-language therapy, and OT during the 2023-24 school year and that the parent was liable for the full amount of services delivered by the agency in the event she was unable to secure funding from the district "or elsewhere" (id. at. p. 2).  The contract indicated that Special Touch charged $300 per hour for OT (id. at p. 2).  The Special Touch owner testified that she spoke with other agencies including Prime Advocacy to determine the agency rate of $300 per hour of OT (Tr. pp. 32-33).  According to Special Touch owner's testimonial affidavit, the agency charged $150 per 30-minute session of OT (Parent Ex. H ¶¶ 3, 7).  On September 10, 2023, the parent electronically signed a parent service contract with Talk Link LLC (Talk Link) for speech-language therapy services for the student during the 2023-2024 school year (Parent Ex. D).[4]  Similar to the Special Touch contract, the Talk Link contract indicated that the agency intended to provide the student with speech-language therapy for the 2023-24 school year and that the parent was liable for the full amount of services delivered by Talk Link in the event she was unable to secure funding from the district or elsewhere (id. at pp. 1-2).  According to the contract, the agency's rate for speech-language therapy services was $300 per hour (id. at p. 2).

            Subsequently, on March 21, 2024, the CSE convened and found the student remained eligible for special education as a student with a speech or language impairment, and recommended the same frequency and duration of SETSS, speech-language therapy, and OT as the March 2023 CSE (compare Parent Ex. B at pp. 1, 6, 9, with Dist. Ex. 4 at pp. 6, 7, 10).  The student was parentally placed in a nonpublic school during the 2022-23 (fifth-grade) and the 2023-24 (sixth-grade) school years (Parent Ex. B at p. 9; Dist. Ex. 4 at p. 10).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year due to its failure to implement the student's recommended services (see Parent Ex. A at pp. 1, 3).  Although the parent indicated the student was parentally placed at a private religious school, she asserted that "[w]ithout supports, the parental mainstream placement [wa]s untenable" and that "the failure to either implement the services or provide a placement" was a denial of FAPE (id.).  The parent sought an order to for the district to fund providers located by the parent for the 2023-24 school year and a bank of compensatory education for periods of SETSS and related services the student did not receive during the 2023-24 school year (id. at p. 3).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on November 8, 2024 (Tr. pp. 1-63). The parties submitted documentary evidence which was admitted into the hearing record and the parent's evidence included direct testimony by affidavit (Tr. pp. 6-10).  The district cross-examined both of the parent's witnesses  who included the of the owners of Special Touch and Talk Link (see Tr. pp. 13-35, 36-55).

In a decision dated November 19, 2024, the IHO found that the district the district "did not put on a prong 1 case, nor did the [d]istrict dispute that [s]tudent was entitled to special education services. Therefore, the [district] has failed to meet its burden as to prong 1 of the Burlington Carter standard" (IHO Decision at p. 5).   The IHO determined that the parent's unilaterally obtained program of services from Special Touch and Talk Link were appropriate under the "totality of the evidence," The IHO awarded the parent funding for the services unilaterally obtained by the parent; however, the IHO reduced the rate for direct funding of the private services (see IHO Decision p. 5-7).  The IHO summarized the procedural history of the case noting that all documentary evidence was admitted into the record, over the respective objections of the parties (IHO Decision p. 3).  The IHO also noted the parent withdrew her request for pendency during the hearing (id.).

Next, the IHO summarized her findings of fact, noting that the student received an IESP on March 5, 2023 and was classified as having a speech or language impairment (IHO Decision p. 3).  The IHO noted that the student subsequently received an IESP on March 21, 2024 (March 2024 IESP) that recommended the same programming as the prior IESP (id.).  The IHO noted the parent's executed contracts with the service providers for speech-language therapy and OT and that those contracts included an hourly rate for services (id. at p. 4).

Next, the IHO summarized her findings noting that the case primarily concerned the appropriateness of the parent's unilaterally obtained services and whether the parent was entitled to funding for same (IHO Decision p. 4).  The IHO determined that based on the testimony from the two owners of the respective service providers, who described the services delivered to the student during the 2023-24 school year, and the progress reports that detailed the student's present levels of performance and how the agencies' services s were "tailored to meet the [s]tudent's unique needs and the progress that resulted,"  "the totality of the evidence" was sufficient to find that the unilaterally obtained services were appropriate during the 2023-24 school year (id.).

 With regard to equitable considerations, the IHO weighed the parties' evidence and determined that a reduction in the direct funding sought by the parent was warranted as it was her finding that the rates charged by the providers were "unsubstantiated and excessive" (IHO Decision pp. 6-7).  The IHO held that the parent's witnesses provided "vague and general" explanations as to the determination of their respective rates and that the district's evidence "addressed the reasonableness of the rates" such that she determined the appropriate rate was $140 per hour for each service (id.).  The IHO awarded funding for SETSS, speech language therapy, and OT (id. at p. 7).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO arbitrarily reducing the award for funding for SETSS, speech language therapy, and OT to $140 an hour, but notes that she is not seeking funding for SETSS.  According to the parent, she is entitled to a presumption of full reimbursement unless the district demonstrates equitable considerations so warrant a reduction in reimbursement.  The parent argues the district failed to rebut this presumption as the district did not present any evidence as to a reasonable market rate for speech language therapy and OT, that the rate study proffered by the district was improperly admitted into evidence and only addressed the costs of SETSS, and that the evidence in the hearing record supported the rates being charged by Special Touch and Talk Link.

In its answer and cross-appeal, the district asserts that the parent's claim is not one for "FAPE" but one for equitable services under Education Law 3602-c.  The district argues that the IHO improperly held the student was entitled to services as the parent's evidence did not demonstrate the appropriateness of the speech language and OT services received by the student, nor did the parent provide adequate evidence to show that the student progressed.  The district also argues the student is not entitled to an award of SETSS because despite the Special Touch contract indicating that SETSS would be provided, there is no testimony or documentary evidence regarding the provision of SETSS to the student, nor is there an explanation as to why the agency failed to provide SETSS.  The district also asserts that the parent did not attend the hearing and thus offered no testimony regarding progress, receipt of services or efforts to locate a provider. Additionally, the district argues that equitable considerations do not favor the parent because the hearing record does not demonstrate the parent is financially obligated to Special Touch and Talk Link due to a lack of "enforceable" contracts, since they are not notarized contracts and the parent did not appear to verify her signatures, which appear different in each contract, Special Touch never invoiced the parent, and that the private providers never referenced the IEP/IESP they were purportedly implementing. In the alternative, the district argues that the IHO's decision to reduce the funding for services from Special Touch and Talk Link was warranted.

In her response to the cross-appeal, the parent argues that the student was entitled to services and that the district's characterization of the parent's claim as an "equitable services" claim is incorrect.  The parent also argues that the contract with the service providers was financially binding and reiterates her argument that the parent is entitled to full funding of the services from Special Touch and Talk Link.

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]).[5]  "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.).[6]  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

As a preliminary matter, the district does not appeal from the IHO's finding that the district "failed to meet its burden as to prong 1 of the Burlington Carter standard" (IHO Decision p. 5).  Accordingly, the IHO's findings and determinations on these issues have become final and binding on the parties and will not be reviewed on appeal (see 34 CFR 300.514[a]; 8 NYCRR200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. 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 Special Touch and Talk Link 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.[7]  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]).[8]  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).

B. The Student Needs

Turning to a review of the appropriateness of the unilaterally-obtained services, for the reasons set forth below, the evidence supports the district's assertions that the IHO incorrectly determined that the parent met her burden to demonstrate that the unilateral program she obtained for the student was appropriate.

Notably, in this case, the parent did not attend the impartial hearing (see Tr. pp. 1-64).  Moreover, the attendance page did not reflect who attended the March 2023 CSE meeting (see Parent Ex. B at p. 9).  The OT agency owner testified that she had not sent any invoices to the parent and that the parent had not made any payments towards the OT services the student had received (Tr. pp. 34-35).

While the student's needs are not in dispute, a brief discussion thereof provides context for the issue to be resolved on appeal, namely, whether the parent's unilaterally-obtained speech-language therapy and OT services were appropriate to meet the student's unique needs.

According to the March 5, 2023 IESP (which was developed during the school year preceding the one in this dispute), the CSE discussed evaluation results including a 2023 SETSS report; a 2023 teacher report; and a 2023 parent interview (Parent Ex. B at p. 1).  The March 2023 IESP initially noted that, based on the parent interview, the student had not receive speech-language therapy or OT "all year" due to a lack of providers (Parent Ex. B at p. 1).

According to the March 2023 IESP, at the time it was developed the student was attending fifth grade (Parent Ex. B at p. 1).  The IESP stated that the student struggled with reading, that her reading was choppy, and that she lacked reading fluency in both Yiddish and English  (id.).  In addition, the IESP noted the student struggled with reading comprehension, had a poor vocabulary, and used improper sentence structure (id.).  The IESP indicated that the student's read at a Fountas and Pinnell level "N", which was at the end of third grade/beginning of fourth grade level (id.).  The IESP stated that the student struggled with problem solving skills, critical thinking, understanding abstract concepts and determining cause and effect and further stated that the student had "a speech and language impairment" (id.).  According to the IESP, the student's math skills were "below grade level" (id.).  The IESP reported that the student struggled with a very limited attention span and got distracted very easily which impaired her success in math, further noting she "g[ot] stuck in the middle of an example and need[ed] constant scaffolding" (id. at pp. 1-2).  The IESP reflected that the student had a hard time figuring out the correct operation to use in word problems, following multi-step directions, struggled when math required "more than basic memorization," and took longer than the rest of the class to complete math examples (id. at p. 2).  With regard to parent concerns, the IESP indicated that the student's mother wanted to see improvement in the student's attention to task, reading fluency and comprehension, math computation and spelling and writing (id.).  The IESP indicated that the student took a long time to complete tasks, and her school was looking for her to "display more time efficiency" (id.).  The IESP also noted that the student needed to expand her language skills in order to function closer to grade level.

In terms of social development, the March 2023 IESP described the student as "socially at grade level," "very popular among her class, with lots of friends," able to "carry an appropriate conversation," and able to "answer[] in full sentences, with details and stories" when asked questions about her home, school, or family (Parent Ex. B at p. 2).  The IESP reported that the student handled frustration in an age-appropriate manner, but she still needed to improve her organization skills (id.).  Conversely, the IESP reflected parent concerns that the student behaved inappropriately and immaturely and had a hard time keeping friends (id.).  With respect to physical development, the IESP revealed that the student was a healthy child who fidgeted and moved around constantly, which affected her ability to focus and concentrate (id.).  The IESP reflected that the parent reported she continued to be concerned about the student's display of inattention and inability to follow through with multi-step directions (id. at p. 3).

The IESP was designed to afford the student resources to address her management needs which included, among other things, 1:1 reading remediation in Yiddish and English, modified assignments, and scaffolding difficult concepts (Parent Ex. B at p. 3).  According to the IESP, the student presented as a student who experienced difficulty processing language at a level expected of a child her age, who struggled to focus on tasks, organize information, and to follow multi-step directions or answer critical thinking or complex questions (id.).  The IESP further noted that with the support of speech therapy, OT, and SETSS, the student would be able to progress in the general education curriculum (id.).

To further address the student's needs, the IESP included two "SETSS" goals, one each related to reading and math, along with one speech goal to address the student's expressive language needs and one OT goal to address the student's need to complete an in-class independent assignment (Parent Ex. B at pp. 4-5).  More specifically, the academic goals targeted the student's ability to accurately identify the theme of a text using a sentence stem and three supporting details and the student's ability to write a numerical expression representing a two-step direction involving calculating numbers (id.).

As briefly noted above, the hearing record included a March 21, 2024 IESP, with a projected implementation date of April 1, 2024 (Dist. Ex. 4 at p. 1).  The March 2024 IESP, which was developed at the time the student was attending sixth grade during the 2023-24 school year, noted that according to the parent the student had been receiving SETSS and speech-language therapy services (id.).[9]  According to the IESP, a 2024 teacher report reviewed by the CSE the student was performing at an end-of-fourth grade level in decoding; a mid-fourth grade level in written language; and a mid-sixth grade level in comprehension, spelling, calculation, and problem solving (id.).  The IESP indicated the student could decode most simple words but that her decoding skills were below grade and she read slower than the rest of the class (id.).  According to the IESP the student was easily distracted and had difficulty remaining focused on text (id.).  In addition, her writing included numerous mistakes in spelling and grammar (id.).  With regard to math, the IESP indicated that although the student was able to compute accurately, she struggled to solve problem solving examples accurately, further noting it took her time to complete and she had a lot of questions (id. at pp. 1-2).  The IESP reflected the parent's concerns that the student often needed directions and concepts re-explained in order to participate in class activities, had a hard time articulating her thoughts clearly, and often delayed her response or switched languages to express herself in Yiddish (id. at p. 2).

In terms of the resources needed to address the student's management needs, the IESP indicated that teachers needed to repeat instructions and concepts to the student to enable her to complete a task; that she needed "a lot" of 1:1 scaffolding teacher modeling, and instruction; that she learned best through a multi-modality program; and that she required group work; rewards; re-teaching; and repeated directions (id. at pp. 2-3).

The March 2024 IESP indicated that the student's "[r]eading and math [we]re delayed; [and she presented with] challenges [with] fluency, comprehension, and problem solving," further noting she needed the support of SETSS, speech-language and OT services "so that she c[ould] access the general education curriculum" (Dist. Ex. 4 at p. 3).  Conversely, the same IESP noted "[m]ath [wa]s an area of academic strength for [the student]" (id. at p. 2).  To address the student's needs, the March 2023 CSE recommended that the student receive three periods per week of direct, group SETSS in Yiddish, and two 30-minute sessions per week of individual speech-language therapy in Yiddish and individual OT in English (Parent Ex. B at pp. 1, 6, 9).  The IESP included several annual goals to address the student's needs in visual-motor and visual-perceptual skills; receptive and expressive language; reading comprehension; writing; and math (Dist. Ex. 4 at pp. 4-6).

C. Speech-Language Therapy From Talk Link

Turning to the speech-language services obtained by the parent, the hearing record includes a Talk Link speech-language progress report dated June 22, 2024 (Parent Ex. G).  The student is described in the report as a bilingual Yiddish-speaker, with receptive and expressive language difficulties and delayed reading skills (id. at p. 1).  The report noted that the student had slow language processing which often affected her academics (id.).  According to the Talk Link progress report, the student had difficulty retaining information when a lot of information was presented at once (id.).  Further, the report reflected that, expressively, the student had a very hard time answering questions and formulating her thoughts in a coherent manner (id.).

The owner of Talk Link provided direct testimony by affidavit indicating that she, a licensed speech-language pathologist, with a bilingual and bicultural extension, provided the student with two 30-minute sessions per week of speech-language therapy for the 2023-24 school year (Parent Ex. I ¶¶ 1, 2, 4, 7, 8; Tr. pp. 50-51).  According to the testimony of the Talk Link owner, the student received all pull out services and she primarily used Yiddish in her sessions (Tr. pp. 49-50, 54-55; Parent Ex. I ¶ 12).  The Talk Link owner testified that she provided the student "direct 1:1 service," prepared for sessions, created goals, wrote progress reports, and met with teachers and parents, further noting that she reviewed the student's goals on a quarterly basis (Parent Ex. I ¶¶ 9-12).  On cross examination, the Talk Link owner testified she "went back to the teacher" to ask her what important words to focus on with respect to teaching the student vocabulary words (Tr. pp. 46-47).  The Talk Link owner further testified by affidavit that the student's progress was measured through quarterly assessments, consistent meetings with teachers and other support staff, observation of the student in the classroom, and daily session notes (Parent Ex. I ¶ 13).

To address the student's language and processing needs, the Talk Link progress report noted the provider used a "visualizing" strategy (see Parent Ex. G at p. 1).  According to the report, the student's progress to date at the time of the June 2024 progress report indicated that she made progress in following longer commands in a structured setting, had become much more efficient with familiar directions and holding onto information, and made more coherent simple sentences, sometimes "combining to [sic] compound sentences using sentence diagramming" (id. at p. 2).  According to the progress report, the student reported that using orthographic techniques when studying for a vocabulary test had been more helpful to her as she was retaining more in her memory (id.).  The progress report included goals to increase the student's receptive, expressive, grammatical, morphological, and phonemic awareness skills (see id. at pp. 2-3).

Here, the hearing record reflects the testimony of the Talk Link owner, who described the speech-language assessments she used to assess the student's needs at the beginning of the 2023-24 school year, how she identified the student's expressive language needs, and explained in great detail the techniques, materials, and strategies she used to address the student's language needs (Tr. pp. 39-55).  Specifically, the Talk Link owner testified that she used techniques such as "visualization skills," sound therapy, sentence diagramming, graphic organizers, e.g., a pacing board, and a specialized program called "equipping minds" to address the student's expressive language and processing delays (Tr. pp. 40-41, 44).  The Talk Link owner described sound therapy as a "listening program" which entailed the student "listening to specific music" (Tr. pp. 40-41).  Additionally, the Talk Link owner testified that she did a lot of vocabulary and mapping out vocabulary as well as grammar and mapping out grammar with the student (id.).  On cross-examination, the Talk Link owner testified regarding the student's progress toward her receptive language goals that targeted her ability to follow three-step novel directions; to increase her vocabulary and conceptualization of concepts by doing a semantic feature analysis of words, e.g., category, function, parts, association; to increase her ability to visualize six-to-eight sentences and make a solid picture in her head; as well as the student's progress toward her expressive language goal to be able to define a word based on a semantic feature analysis; her grammatical/morphological goal to identify adjectives in simple sentences independently; and her phonemic awareness goal to use orthographic mapping skills of visualizing sounds and letters (compare Parent Ex. G at pp. 2-3, with Tr. pp. 42-46).

D. OT Services from Special Touch

Turning to the OT services provided to the student during the 2023-24 school year, the Special Touch owner testified by affidavit that a "licensed [o]ccupational [t]herapist—registered in [New York State] to treat students with disabilities" from Special Touch provided the student with two 30-minute sessions per week of OT during the 2023-24 school year (Parent Ex. H ¶¶ 1, 3, 9-11).  On cross examination, the Special Touch owner testified that the student received pull out services at the "center" but noted "we have been in, in touch with the school teachers, providers as necessary" (Tr. p. 15).  The Special Touch owner testified by affidavit that services were "typically provided outside of the classroom" (id. at ¶ 13).  In her affidavit, the Special Touch owner testified that goals were created for the student to work on during the 2023-24 school year and "were reviewed quarterly" (id. at ¶ 12).  The Special Touch owner testified that she "d[id] a couple of sessions" with the student in addition to her regular occupational therapist (Tr. pp. 16-18).[10]  The evidence does not indicate that the Special Touch owner is licensed to provide OT but does reflect that the owner had a master's degree in OT (Parent Exs. H ¶¶ 2-3; see E at pp. 1-2; Tr. pp. 11-35).  The Special Touch owner testified that she had not sent any invoices to the parent and that the parent had not made any payments towards the OT services the student had received (Tr. pp. 34-35).

According to a February 29, 2024 OT progress report the student demonstrated difficulties with writing skills, attention span, and visual processing skills (see Parent Ex. F at p. 1).[11] [12] The report indicated the student's handwriting was below age level, further noting it took her five-minutes to write three sentences and that she struggled with sizing and spacing of letters (Parent Ex. F at p. 1).  The report noted that the student's visual processing and visual discrimination skills were significantly delayed, and her visual spatial relations and visual form constancy were "below age level" (id.).  Conversely, the report reflected that the student's visual skills were age appropriate (id.).  The Special Touch owner testified that the student mastered those visual goals by the time the progress report was created in February of 2024, and the report reflected new goals (compare Tr. p. 30, with Parent Ex. F at pp. 1-2).  The OT progress report indicated both that the student missed one object per line of 10 shapes, was only able to find seven out of 10 differences between similar pictures, was unable to remember four images in order, and was unable to identify an image if it was not in the same orientation, and that her visual memory, visual figure-ground, and visual closure were age appropriate (Parent Ex. F at p. 1).  The report noted that the student made significant progress in her ocular motor skills and visual motor skills, noting those skills were now age appropriate (id.).

The OT progress report and the Special Touch owner's testimony indicated that the following modalities and techniques were used to address the student's OT related needs: "forbrain," reflex integration, sensory processing, visual processing worksheets, visual processing games, tracking exercises, and brain gym (Parent Ex. F at p. 1; Tr. pp. 23-25).  The report included approximately five new OT related goals, developed in February 2024, that  addressed the student's need to complete a three-step unrelated direction task without redirection; to complete an age level worksheet without redirection; to remember a sequence of five shapes; to identify 10 differences between similar images; and to scan and find 15 of the same shapes within a line in 60 seconds with minimal assistance (Parent Ex. F at p. 2; see Tr. p. 30).  The Special Touch owner testified regarding assessments given to the student prior to the beginning of the 2023-24 school year, about the student's "global visual deficits," difficulty with auditory processing skills, and writing struggles, and indicated the strategies and tools that the provider used during OT (Tr. pp. 18-19, 20-21, 21-23, 24-25, 26, 27-28-30).  For example, the Special Touch owner testified regarding the student's needs and progress in writing, noting that the student wrote "extremely slow" and struggled with shaping and sizing and orientation of letters initially, which made copying from the board very difficult for her, but by the end of the school year, her sessions were more focused on note taking abilities and on her writing speed (Tr. p. 28).  However, the report did not reflect a goal to address the student's handwriting difficulty (see Parent Ex. F at p. 2).

The Special Touch owner testified that brain gym addressed midline, coordination, "aquilla" motor skills, and body awareness (Tr. p. 24).  According to the Special Touch owner's testimony, forbrain addressed the auditory processing component of auditory attention, as it allowed the student to hear herself talk (Tr. pp. 23-24).  The OT progress report does not include the results of the assessments administered by Special Touch as discussed by the Special Touch owner in her testimony (compare Tr. pp. 19-22, with Parent Ex. F at pp. 1-2).

As noted by the IHO, the parent did not testify regarding her efforts to locate SETSS, about the student's progress, or with regard to the receipt or delivery of OT or speech-language therapy services.  Additionally, the district has alleged that while the Special Touch contract stated that SETSS would be provided, there is no explanation in the hearing record as to why Special Touch failed to provide those services.  I find the district's allegation is supported by the record as the Special Touch contract appears to list that it will provide SETSS, speech-language therapy, and OT, but only specified a rate ($300 per hour) for OT (see Parent Ex. C at p. 2).

Also absent from the record are quarterly assessments, testimony from the parent, any information from the student's nonpublic school that she attended during the time period at issue other than related information contained in the IESPs, or any daily session notes as referenced above or attendance records (see Parent Exs. A-I; Dist. Exs. 1-5; Tr. pp. 1-64).  Specifically, the Special Touch owner testified that the student was assessed at the start of the 2023-24 school year, once at the end of the school year, and once when she herself assessed the student, "probably around January, February time and then in April again" (Tr. pp. 25-26).  The hearing record does not include an OT progress report from the beginning of the 2023-24 school year, nor a report from April 2024 or the end of the 2023-24 school year (see Parent Exs. A-I).  While the February 2024 OT progress report reflected the student's then-current functioning levels, general progress towards goals, and new goals to address the student's needs, the report lacked specificity and did not indicate what assessments were used to determine the student's functioning levels (see generally Parent Ex. F).

The hearing record contains some evidence of the strategies and materials the student's providers utilized during their sessions with her for the 2023-24 school year.  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 any evidence regarding student's ability to access the curriculum at the non-public school with the special education supports.  While a number of the student's needs were generally addressed by OT and speech-language services, the hearing record lacks sufficient information concerning the student's general education school in terms of the instruction and curriculum provided, to make a determination whether the student's unique needs were adequately addressed without the receipt of SETSS during the 2023-24 school year (see Tr. pp. 14-30, 39-55; Parent Exs. G at pp. 2-3; I ¶ 13; F at pp. 1-2).  Additionally, as discussed above, it is unclear whether the student received SETSS from another private agency or whether Special Touch planned but failed to provide the student with SETSS.  Although the evidence in the hearing record reflects that the speech-language therapy and OT services provided to the student by Talk Link and Special Touch respectively were supportive in part, the totality of the evidence in the record tends to show that the student's academic needs in reading and math, as outlined in the March 2023 IESP, were not addressed as she did not receive SETSS from Special Touch or Talk Link during the 2023-24 school year.  For example, and as noted above, the March 2023 IESP indicated that, in reading, the student struggled with decoding, fluency and comprehension, made may mistakes while reading, and talk a long time to read sentences and paragraphs (Parent Ex. B at p. 1).  In math, the student needed "constant scaffolding" to the extent that she "g[ot] stuck" in the middle of a problem and that she took longer than rest of her class to complete math examples (Parent Ex. B at pp. 1-2).  Further, the IESP included a reading comprehension goal related to identifying supporting detail and the theme of a text and a math goal that required her to write a numerical expression representing a problem that included two directions for calculating numbers (see Parent Ex. B at pp. 4-5).

The foregoing evidence in the hearing record does not convince me that the parent met her burden under Burlington-Carter to prove under the totality of the circumstances that the services she unilaterally obtained for the student constituted specially designed instruction to address her unique educational needs.  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]).  As noted above, the hearing record does not include any convincing evidence of the instruction that the student received while attending the general education nonpublic school or how the special education services were designed to enabled the student benefit from instruction there.

Furthermore, considering the lack of information regarding the student's performance in math during the 2023-24 school year, it is not possible to ascertain whether the student received special education support in the classroom to enable her to access the general education curriculum or how the speech-language therapy or OT services delivered to her supported her functioning in the classroom in the area of math (Parent Exs. A-I; Dist. Exs. 1-5; Tr. pp. 1-64).

Accordingly, the hearing record lacks information concerning the student's general education school in terms of the instruction and curriculum provided, which necessitates assessing the unilaterally-obtained services in isolation from the student's general education private placement.  Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students, under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate.  The program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally-obtained OT and speech-language therapy services, with the idea that the specially designed instruction provided should support the student's access to the nonpublic school's curriculum; however, under the circumstances of this matter, the hearing record lacks evidence to support such a finding.  As a result, the parent has failed to meet her burden of proving that the services she obtained privately were appropriate for the student under the Burlington-Carter standard.  Thus, the IHO incorrectly ordered funding for the parent's unilaterally-obtained speech-language therapy and OT services during the 2023-24 school year.  Therefore, the IHO's determination that the parent met her burden to prove that the unilaterally obtained services provided to the student sufficient to address the student's needs must be reversed.

VII. Conclusion

Having determined that the IHO erred in finding that the parent's unilaterally obtained services were appropriate to address the student's needs under the totality of the circumstances, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations weigh in favor of the parent's request for relief.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, the IHO decision, dated November 19, 2024, is modified by reversing those portions which found that the parent met her burden to prove the appropriateness of the unilaterally obtained services under the totality of the circumstances and awarded the parent direct funding from the district for privately obtained special education services.