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 cost of her son's private services delivered by Yeled v'Yalda Early Childhood Center (Yeled) for the 2023-24 school year.  The district cross-appeals from that part of the IHO's decision which declined to dismiss the parent's claims for lack of subject matter jurisdiction.  The appeal must be dismissed.  The cross-appeal must be dismissed.

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

At all relevant times, the student was parentally placed at a nonpublic school and eligible for special education as a student with autism (see Parent Exs. C at pp. 1, 3, 16; D at p. 1; E at p. 1; H at p. 1).[1]

A CSE convened on November 4, 2022, while the student attended second grade, and developed an IESP to be implemented on November 21, 2022 (Parent Ex. C at pp. 1, 3, 13).[2]  The November 2022 CSE recommended that the student receive eight periods per week of special education teacher support services (SETSS) in a group setting; three 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual occupational therapy (OT); two 30-minute sessions per week of individual physical therapy (PT); one 30-minute session per week of individual counseling; and testing accommodations (id. at pp. 13-14).[3]

In a letter dated May 30, 2023, the parent, through her attorney, requested that the district provide the special education and related services to which the student was entitled in the upcoming 2023-24 school year (Parent Ex. E at p. 1).

On June 19, 2023, the parent signed a contract with Yeled, a private educational agency, under which the agency would provide special education services and/or related services during the term beginning on July 1, 2023 and continuing through June 30, 2024 (Parent Ex. F).[4]  Under her contract with Yeled, the parent agreed to be responsible for any fees not funded by the district (see id.).[5]

In a 10-day notice letter dated August 21, 2023, the parent, through her attorney, informed the district that she had been unable to locate SETSS and related services providers at the district's standard rate and would, therefore, "have no choice but to implement the [student's] IESP on [her] own and seek reimbursement or direct payment from the [district]" (Parent Ex. D at p. 1).

During the 2023-24 school year, the student received SETSS and speech-language therapy from Yeled (see Parent Ex. H at pp. 1-8; I ¶ 4; J ¶¶ 10, 12).

A. Due Process Complaint Notice

In a due process complaint notice dated July 12, 2024, the parent, through her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at pp. 2-3).  Specifically, the parent alleged that the district failed to implement the services recommended in the November 2022 IESP (id.)  The parent further alleged that she "ha[d] been unable to locate SETSS and related services providers on []he[]r own accord for the 2023-24 school year," and "[w]ithout supports, the parental mainstream placement [wa]s untenable" (id. at p. 2).  The parent invoked pendency based on an unappealed June 16, 2023 IHO decision (id.).  As relief, the parent requested funding of the cost of the private services provided to the student during the 2023-24 school year at the providers' enhanced rates, as well as a bank of compensatory services, funded at the prospective providers' enhanced rates, for the entire 2023-24 school year or the parts of that school year during which the student did not receive the recommended services (id. at p. 3).

B. Impartial Hearing Officer Decision

On November 6, 2024, an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) and concluded the same day (see Tr. at pp. 1-46).  The parent presented various exhibits, most of which the IHO admitted into evidence (see Tr. p. 13; Parent Exs. A; C-J).[6]  The parent's exhibits included testimony by affidavit from an educational supervisor at Yeled, as well as the agency's finance director (see Tr. pp. 10, 13-14; Parent Exs. I; J).  The district presented no witness testimony but offered several documents, each of which the IHO admitted into evidence (see Tr. at pp. 4-7; Dist. Exs. 1-4).

In a decision dated December 16, 2024, the IHO first addressed the district's allegation that the parent failed to make a timely request for educational services for the 2023-24 school year (see IHO Decision at pp. 4, 9).[7]  The IHO found that the parent requested such services through "an email sent by [her attorney] to [the] [d]istrict on May 30, 2024" (id. at p. 4).[8]  Thus, according to the IHO, the "[s]tudent was eligible to receive [educational] services for the 2023-2024 school year" (id.).  The IHO then determined that the district failed to meet its burden of proving that it offered the student educational services on an equitable basis for the 2023-24 school year, as the district did not dispute its failure to implement the recommendations set forth in the November 2022 IESP (id.).

Next, the IHO addressed whether the services provided by Yeled during the 2023-24 school year, namely SETSS and speech-language therapy, were appropriate for the student (see IHO Decision at pp. 4-7).  The IHO found that the parent failed to meet her burden in that regard, reasoning that the record lacked any indication of the way in which the services provided to the student by Yeled during the 2023-24 school year were specially designed to meet the student's unique needs (id. at pp. 6-7).  With respect to both SETSS and speech-language therapy, the IHO found that, while the June 2024 progress reports described the student's strengths and challenges, they "did not detail any materials, strategies, or specially designed instruction techniques . . . used to address [the s]tudent's deficits" (id. at p. 6).[9]

Having determined that the parent failed to prove the appropriateness of the services she unilaterally obtained for the 2023-24 school year, the IHO denied the parent's request for funding of the costs of those services (IHO Decision at pp. 7-8).  For completeness of the record, however, the IHO addressed whether equitable considerations supported the parent's request for relief (id.). The IHO found that the testimony of the agency's finance director, offered in support of the requested rates, lacked credibility (id.).[10]  Moreover, the IHO found that, even if the finance director's testimony was to be credited, the amount of overhead costs built into the contract rates was inconsistent (id. at p. 8).[11]  The IHO further noted that the district offered into evidence an independent rate study, which was reviewed and applied in Application of a Student with a Disability, Appeal No. 24-222, a case wherein a far lower overhead mark-up was deemed appropriate (id.).  Hence, the IHO determined that, if any funding were to be awarded, the award would reflect reasonable market rates, as determined by the district's implementation unit, rather than the requested rates (see id. at pp. 7, 10).

IV. Appeal for State-Level Review

The parent appeals and argues that the IHO erred in finding that the parent's unilaterally obtained services were not appropriate.  The parent asserts that the SETSS and speech-language therapy provided by Yeled were specifically tailored to address the student's needs as a learner and that the parent satisfied her burden.  The parent contends that the IHO improperly gave little weight to the witness testimony and erred in finding the parent's witnesses to be not credible.  The parent further alleges that the IHO was biased against her and against her community.  The parent also claims that the use of a Burlington/Carter framework to analyze the appropriateness of unilaterally obtained services is draconian and creates an insurmountable hurdle for parents.  Lastly, the parent asserts that there were no equitable considerations that would warrant a reduction in the amount of the parent's requested funding.  As relief, the parent requests direct funding of SETSS and speech-language therapy at the contracted rates and in the alternative, the parent requests "a bank of compensatory hours for all missed services" (Req. for Rev. at p. 9).[12]

In an answer and cross-appeal, the district contends that the IHO correctly found that the parent failed to meet her burden of demonstrating the appropriateness of her unilaterally obtained services, that the IHO's credibility determinations should be upheld, and that the IHO did not demonstrate bias against the parent.  The district further asserts that equitable considerations warrant a denial of all relief to the parent.  In its cross-appeal, the district claims that the IHO lacked subject matter jurisdiction to review the parent's claims in her due process complaint notice.  As relief, the district requests that the parent's appeal be dismissed.

The parent interposed a reply to the district's answer and cross-appeal.[13]

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]).[14]  "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.).[15]  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. Preliminary Matters

1. Subject Matter Jurisdiction

As a threshold matter, it is necessary to address the district's cross-appeal concerning subject matter jurisdiction.  The district argues that federal law confers no right to file a due process complaint regarding services recommended in an IESP and New York law confers no right to file a due process complaint regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment 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]).[16]

Education Law § 3602-c, concerning students who attend nonpublic schools, 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 section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[17]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.

In 2007 the State Department of Education issued guidance further interpreting Education Law § 3602-c after legislative amendments in 2007 took effect, which provides that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago and then dramatically intensified to tens of thousands of due process filings per year within certain regions of this school district in the last several years.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[18]

The district contends that the plain meaning of the Education Law and that under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services."  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[19]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed as further described below.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or if certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception of when exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP.'"  (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 (2d Cir. 2009); quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" (id. at p. 7).[20]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to go further to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

2. IHO Bias

The parent alleged that the IHO in this matter exhibited bias against the parent's religious community and individuals who work in that community.  It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

Here, rather than alleging specific displays of bias during the proceeding, the parent presents a results-based argument.  More specifically, the parent alleges that, with respect to agencies and institutions that serve the parent's community, this IHO never finds witnesses credible; never finds services delivered by licensed or credentialed providers appropriate; and finds requested rates excessive even without evidence of a more appropriate rate.  According to the parent, the IHO's distrust of agencies and institutions that serve the parent's community, results in the denial of funding for unilaterally obtained services in every case.  In support of the allegation of bias, the parent's attorney cites his firm's purported 90 percent success rate in obtaining funding in cases of implementation failure before other IHOs and offered into evidence a decision of another IHO decision awarding funding for the same student in connection with the previous school year (Parent Ex. B).

Initially, to the extent that the parent disagrees with the conclusions reached by the IHO, such disagreement does not provide a basis for finding actual or apparent bias (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).

Moreover, neither the parent's statistical analysis of outcomes nor the anecdotal evidence that another IHO would have awarded relief can establish extrajudicial bias (see Intl. Bus. Machines Corp., 618 F.2d 923, 930 [2d Cir. 1980] [stating that "statistics alone, no matter how computed, cannot establish extrajudicial bias"]; Application of a Student with a Disability, Appeal No. 13-083 [rejecting the parent's "conten[tion] that the IHO was biased against her, as evidenced by anecdotal [information] that th[e] IHO rarely finds in favor of parents"]).  Indeed, "[t]here is no authority for, and no logic in, assuming that either party to a litigation is entitled to a certain percentage of favorable decisions" (Intl. Bus. Machines Corp., 618 F.2d at 930; see Adrianne D. v. Lakeland Cent. Sch. Dist., 686 F. Supp. 2d 361, 368 [S.D.N.Y. 2010] [noting that allegations regarding the percentage of rulings favorable to school districts or disabled children were not cognizable claims]; E. Z.-L. v. New York City Dep't of Educ., 763 F. Supp. 2d 584, 595 n.7 [S.D.N.Y. 2011], aff'd sub nom. R.E., 694 F.3d 167 [noting the uniform rejection of arguments based upon plaintiffs' statistical or spreadsheet analysis of unfavorable outcomes by an administrative hearing officer]).

Review of the hearing record in this matter reveals that, although the IHO ultimately denied the requested relief, he allowed the parent, through her attorney, to present documentary evidence and witness testimony during the impartial hearing (see Tr. pp. 10, 13-14, 16-24, 26-36; Parent Exs. A; C-J).  Contrary to the parent's assertion that the IHO "finds every possible way to deny relief," the IHO rejected the district's June 1 defense, instead finding that the student was eligible to receive special education services during the 2023-24 school year and deciding the matter on the merits (Req. for Rev. at p. 5; IHO Decision at p. 5).

Based on the foregoing, the hearing record does not support the parent's contention that the IHO exhibited bias, and the matter must be considered through analysis of the applicable law and the individual facts of the case (see, e.g., Application of a Student with a Disability, Appeal No. 25-020 [rejecting the parent's contention that the IHO "exhibited bias towards her due to her religious beliefs and the religious community she lives within"]).

B. Legal Standard

Before reaching the substance of the parties' arguments regarding the unilaterally obtained services, some consideration must be given to the appropriate legal standard to be applied.  The parent suggests that the IHO erred in evaluating the parent's request for relief under the Burlington/Carter framework.  According to the parent, application of the Burlington/Carter three-pronged test in cases of implementation failure, such as this case, incentivizes the district's failure to implement services and creates an "insurmountable hurdle" for parents (Req. for Rev. at pp. 6-7).  According to the district, the Burlington/Carter three-pronged test is the appropriate legal standard in cases of this nature.

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 Yeled 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]).[21]  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).

Although use of the Burlington/Carter framework, for a matter involving an IESP developed pursuant to State Education Law § 3602-c rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, more analogous framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district.  I also note that IHOs have not approached the question with consistency.  As explained below, I find the alternative approaches adopted by some IHOs insufficient to address the factual circumstances in these cases.

The parent argues that, unlike in tuition reimbursement cases, she has not rejected the district's recommended placement.  This distinction is of little consequence, however.  A district's delivery of a placement and/or services must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]).  Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE.  Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]).  The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington/Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).

The most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F., 746 F.3d at 76; R.E., 694 F.3d at 184-85).  Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

Based on the foregoing, I find that the IHO applied the appropriate legal standard to assess whether the parent was entitled to the relief sought.

C. Unilaterally Obtained Services

Turning to the merits, the following disputed issues remain to be addressed: whether the student received appropriate services from Yeled during the 2023-24 school year; and, if so, whether equitable considerations support the parent's request for relief.[22]  First, the federal standard for evaluating the appropriateness of unilaterally obtained services 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. Florida 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 Central Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. The Student's Needs

Next, a review of the information available in the hearing record concerning the student's needs and then-current functioning will provide the context needed to assess whether the unilaterally obtained services were appropriate for the student.

The hearing record includes what appears to be the student's most recent IESP, created on November 4, 2022 (Parent Ex. C at pp. 1, 3).  The IESP present levels of performance include assessment results from an April 2021 psychoeducational evaluation (id. at pp. 1-4).  Those assessment results placed the student's overall intellectual capacity in the extremely low range with his strongest performance in visual spatial skills (low average range) and his weakest performance in the areas of short-term memory and processing speed (extremely low range) (id. at pp. 1-2).  The November 2022 IESP reported significant academic deficits in all subjects (id. at p. 4).

Regarding math skills, the IESP reported that the student could "count to 10 and recognize numbers 1-10" but that he "ha[d] a poor sense of numbers," wrote numbers backward, "[s]truggled to complete basic single digit addition and subtraction," and "need[ed] manipulatives and support" (Parent Ex. C at pp. 2-3).[23]

In the area of reading, the IESP reported that, while the student had not been formally taught to identify letters of the English alphabet, he could identify some English alphabet letters and was "able to identify letters of the Yiddish alphabet" (Parent Ex. C at pp. 2-3).  According to the IESP, the student had emerging phonemic awareness and could "identify initial sounds of words but struggle[d] to name words that began with the same sound" (id. at p. 3).  The IESP further reported that the student's reading comprehension was determined to be in the low range based on assessments using the identification of pictures (id. at p. 2).

The IESP reported that, while the student had not been formally taught to perform writing tasks, his pencil grasp was "okay," and he was able to imitate drawing of lines, although they were not neat (Parent Ex. C at p. 2).  Also regarding writing, the IESP reported that the student could copy letters but needed reminders regarding size and spacing (id. at p. 3).  The IESP noted the student had not been formally taught to perform writing tasks (id. at p. 2).

With respect to language development, the IESP described the student as a literal thinker who could respond to basic "wh" questions but "ha[d] a hard time making predictions or analyzing information" (Parent Ex. C at p. 3).  The IESP stated that the student "ha[d] a history of late development of speech and language skills" with indications of "various problems with expressive language skills which interfere[d] with his ability to socialize" and "perform academic work" (id. at p. 2).  According to the IESP, the student "require[d] speech-language therapy to address delays [in] expressive, receptive, and pragmatic language skills" (id. at p. 4).

According to the IESP, the student was well behaved and had a "sweet disposition" but struggled to follow through with directives that were more than two steps, lost focus and became distracted, was disorganized, did his "'own thing,'" did not partake in class lessons or discussions, and did not follow class/group instructions (Parent Ex. C at pp. 4-5).  The IESP reported that the student could better complete tasks when instructions were "given only to him" (id. at p. 4).

With respect to social development, the IESP stated that the student presented with significant social deficits as follows: he was very literal and struggled to understand social norms; he often asked inappropriate questions; he did not pick up social cues or gestures; he was "'in his own world'"; and, when working in small groups, he was unable to successfully participate, as he did not understand his role and the role of the other students (Parent Ex. C at p. 5).  The parent reported that the student could be "challenging" and "difficult to engage and redirect" (id.).  According to the parent, the student lacked safety awareness, tended to "push boundaries," and sometimes exhibited immature and inappropriate behaviors (id.).[24]

Regarding the student's physical development, the IESP stated that the student was in good health but that "OT & PT are indicated to address fine and gross motor deficits" (Parent Ex. C at p. 5).

The hearing record also includes June 2024 SETSS and speech-language progress reports that describe the student's needs.

According to the June 2024 SETSS progress report, delays in the student's cognitive skills hindered his ability to join in group activities, socially and academically, as he did not appropriately contribute to lessons, engaged in noncompliant behavior, purposefully acted silly, and asked irrelevant questions (Parent Ex. H at p. 2).  The SETSS progress report further noted significant weakness in the student's attentional skills and his ability to stay focused on class lessons, carry a steady conversation, and grasp the lessons being taught (id.).

Regarding reading, the progress report stated that the student still confused short "a" and "e" sounds, required "a lot more repetition" to memorize sight words such as "said" and "many," and although he was able to incorporate some phonics rules, it often took days and sometimes weeks of practice (Parent Ex. H at p. 3).  The student's reading delays reportedly hindered his ability to comprehend when reading, as he "focuse[d] on decoding" (id.).  The progress report further stated that the student was "unable to predict, infer, analyze[,] or even understand the main idea"; "struggle[d] to answer inferential questions and draw conclusions"; "struggle[d] to reread text in order to answer a literal question accurately"; and that "he only ma[de] text-to-self connections when provided with verbal prompts" (id.).

According to the progress report, the student's math struggles included "confusion between addition and subtraction methods, limited understanding of numbers beyond the hundred's column, and a lack of knowledge regarding carrying and regrouping" (Parent Ex. H at p. 3).  The student had difficulty "stay[ing] within a column when learning to add multi-digit numbers" and was unable to tell time on an analog clock, count cents, or identify coins other than the quarter (id.).

The progress report stated that, in writing, the student confused "b" and "d," "occasionally skip[ped] the vowel when writing CVC words," and required reminders regarding spacing between words and the proper use of upper-case letters (Parent Ex. H at p. 3).

According to the progress report, deficiencies in the student's receptive instruction skills and auditory listening skills limited the student from fully understanding the lessons taught and then applying those lessons (Parent Ex. H at p. 3).  The student's deficient receptive instruction skills and auditory listening skills also left him unsuccessful in advancing his social skills, as he would forget the suggestions taught and then fail to apply them in social interactions (id. at p. 3).  Deficiencies in the student's expressive language skills "impede[d] his ability to participate in class and [in] social settings," as he was unable to answer teacher-presented questions; he was unable to carry smooth conversations with his peers or adults; he often presented unrelated comments and random information; and he would lose focus when the teacher spoke (id. at pp. 3-4).  Regarding non-verbal communication, the progress report stated that the student did "not maintain eye contact during social interactions" and did "not cue in on his peers' gestures and facial expressions" (id. at p. 4).

The progress report stated that the student's deficient social interaction skills limited his ability to initiate and maintain social interactions (Parent Ex. H at p. 4).  More specifically, the student tended to veer off topic, reacted inappropriately, avoided eye contact, and "often respond[ed] with a predictable 'oh' without expressing genuine interest or asking follow-up questions" (id.).  The progress report further stated that the student "demonstrate[d] continuous challenges with communicating effectively when organized play activities [were] arranged," asked the teacher questions that were inappropriate in timing or context, exhibited resistance to authority figures, tended to wander off alone, and lacked awareness of social cues (id.).  Lastly, the progress report stated the student's deficient assertiveness skills limited him from "expressing his thoughts clearly and effectively," as he was "unable to hold the attention of his peers when speaking" (id.).

The June 2024 speech-language therapy progress report stated that the student's attention skills were delayed and that he had difficulty remaining on task for short intervals, following three-step unrelated directives, comprehending many "wh" questions, making inferences, comprehending picture analogies, and expressing his wants and needs (Parent Ex. H at pp. 6-7).  According to the speech-language therapy progress report, the student was unsuccessful in "using a variety of vocabulary words while speaking;" he was "unable to describe the functions of an item or actions" with sufficient detail; "ha[d] difficulty naming categories and understanding associations"; presented with limitations in producing sounds such as /t/, /d/, /l/, /s/, and /z/; and, when conversing with others, was unsuccessful in "maintaining a topic, interrupting appropriately, and maintaining eye contact" (id. at p. 7).

2. Services from Yeled

In the instant appeal, the parties dispute whether the IHO erred in determining that the parent failed to prove the appropriateness of the services provided to the student by Yeled during the 2023-24 school year.  The parent argues that Yeled supplied appropriately licensed and credentialed providers who addressed the student's documented deficits.  The parent further argues that the progress reports indicate, with specificity, that the student met the goals listed in his IESP.  The district argues that the parent presented no verifiable evidence of progress and no credible evidence explaining how the agency's services were implemented, what deficits they addressed, when and where they were provided, or how they were specially designed to address the student's unique needs.  The district further argues the progress reports do not explain the student's baseline functioning, nor do the progress reports mention the student's general education curriculum or the way in which the providers worked in conjunction with that curriculum.

As explained below, the hearing record supports the IHO's determination that the parent failed to prove that the services she unilaterally obtained from Yeled for the 2023-24 school year were appropriate for the student.

The evidence in the hearing record indicates that Yeled provided the student with eight hours per week of individual SETSS and "1.5 hours" per week of speech-language therapy during the 2023-24 school year from appropriately credentialed providers (Parent Exs. I ¶ 4; J ¶¶ 10-14, 18; see Parent Exs. G at pp. 1-2; H at pp. 1-8).[25]

The educational supervisor at Yeled (supervisor) testified that the student received services in his "mainstream school," both "inside and outside" of the classroom, in "individualized sessions" with "a great deal" of specialized instruction (Parent Ex. J ¶¶ 15, 17).  The supervisor further testified that, in addition to providing direct 1:1 services, the SETSS and speech-language providers prepared for sessions, created goals, wrote progress reports, and met with teachers and parents (id. ¶¶ 14, 17).  The supervisor added that goals were reviewed, as needed, and that, every few months, she would give the parents an "update phone call" (Tr. p. 29; Parent Ex. J ¶ 16).

With respect to SETSS instruction, the supervisor testified that she collaborated with the provider and discussed appropriate goals, activities, and programs for the student (Tr. pp. 28, 32).  She stated that she "would teach [the provider] how to break down the material in a way that it could be more understandable for [the student]" (Tr. p. 28).  She testified that this collaboration with the SETSS provider occurred once every two to three weeks, explaining that the provider would implement the suggestions and then they would "follow up on that based on how [the student] was performing" (id.).  She added that, because they were also addressing social dynamics, they would "do, pull out," to teach the skill and then "try to push in" and evaluate how the student was generalizing the skill (Tr. p. 31).

With respect to speech-language therapy, the supervisor testified that she collaborated with the speech-language pathologist but acknowledged that she is "not a speech therapist" herself (Tr. p. 35).  Thus, according to the supervisor, she supervised the speech-language pathologist in the sense that she would provide "different instruction and different ways" to operate sessions if there was a need to decrease maladaptive behaviors and increase positive behaviors; and she would provide different goals the speech-language pathologist could implement so that they were "on the same page and seeing . . . [the] student as a whole" (id.).

According to the June 2024 SETSS progress report, to address the student's needs in reading, the provider "practiced" reading words in isolation, as well as in the text or a storybook; used visuals and multisensory decoding practice to strengthen the student's literal comprehension and understanding of main ideas; practiced placing a story in sequence to develop an understanding of the storyline; practiced answering the five "wh" questions after reading; and used pre-teaching and review of material taught in class "to solidify the information for [the student's] understanding (Parent Ex. H at pp. 2-3).  The provider used visual and auditory prompts to refocus the student and teach the importance of staying focused (id. at p. 2).  To address the student's needs in math, the SETSS provider employed repetitive techniques and tactile tools to reinforce mathematical concepts, such as addition, subtraction, and regrouping, to make them more accessible and understandable (id. at p. 3).

The SETSS progress report further indicated that the provider addressed the student's communication deficits by repeating information, asking the student to retell what he had heard, guiding the student "in person outside of sessions" to apply the lessons taught, providing positive reinforcement, and using the "Social Thinking program" to help the student progress in the nonverbal communication domain (Parent Ex. H at p. 4).  With respect to the student's social/emotional/behavioral deficits, the progress report indicated that the provider offered direct instructions on initiating social interactions and joining in play activities with peers (id.).  To address assertiveness skills, "the provider [] practiced repeating a thought clearly and effectively if [the student] fail[ed] to do so on his first try" (id.).  In addition, the provider practiced conversation skills and asking for help (id.).

Although the district recommended that the student receive SETSS in a group, the supervisor testified that the student received individual services because the agency was "not able to locate a similarly situated group of students" (Parent Ex. J ¶ 18).  In that regard, the supervisor cited the student's "ASD diagnosis," his "very unique delays," and differences in academic levels (Tr. pp. 30-31).

According to the June 2024 speech-language therapy progress report, "modes of intervention" included articulation drills, picture cards, books, manipulatives, worksheets and workbooks, therapist-made materials, turn-taking games, and language games (Parent Ex. H at p. 7).  The progress report further stated that the provider used modeling prompts, tactile prompts, verbal cue prompts, and visual cue prompts to facilitate mastery of skills (id.).

With respect to progress, the supervisor testified that the student showed "signs of progress," as measured through assessments, consistent meetings with the providers and support staff, and observation of the student in the classroom (Parent Ex. J ¶¶ 19, 21). 

As an example of progress, the supervisor testified that the student was not doing addition and subtraction at the start of the school year, but that as they implemented visuals and math activities, she could see the student was "doing better" (Tr. p. 33).  The supervisor further testified that the student was not reading any sight words at the start of the school year, but after they enacted a sight word program, in which they highlighted the words, teaching in a "very visual way," she saw the student was reading many more sight words (Tr. pp. 33-34; see Parent Ex. H at p. 1).

According to the SETSS progress report, as of June 2024, the student could read short vowel "CVC" words and short vowel compound words, answer five "wh" questions with 80 percent accuracy when reading a passage with illustrations, and "retell a story read in sequence" (Parent Ex. H at p. 1).  The progress report stated that the student could write "CVC" words with 80 percent accuracy; write upper- and lower-case letters with 90 percent accuracy; and had "recently started writing basic sentences, understanding the concept of a full thought" (id.).  The progress report further stated that the student was "now able to hold [a] pencil correctly and press down with adequate pressure" and could write most upper- and lower-case letters at the correct height while correctly spacing the letters within a word (id. at pp. 1-2).  The student had reportedly shown progress in his classroom behavior, as he was "able to take out the appropriate books" upon teacher request, "express[] his wants and needs effectively," and "greet[] the teacher at the start of the session" (id. at p. 2).  Lastly, the progress report stated that the student had "been making notable strides in his social [] development," "demonstrat[ing] a growing awareness of group dynamics by walking beside his provider instead of [] running ahead" and "successfully initiat[ing] interactions by inviting a friend to join a game during therapy sessions" (id.).  It was noted, however, "that extending th[o]se social skills beyond the therapeutic environment remain[ed] a work in progress" (id.).

According to the speech-language therapy progress report, as of June 2024, the student was able to identify "photographs [] of many familiar objects," "identify many object functions in pictures," and identify many opposites (Parent Ex. H at p. 6).  With respect to articulation skills, the student was "proficient with producing the /t/ sound in isolation and [in] the initial position of single syllables" (id.).

As stated above, the Burlington-Carter framework requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction designed to address his 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]).

Initially, the supervisor's testimony offered little substance regarding the way in which the services provided to the student during the 2023-24 school year were individualized to meet his unique needs (see Parent Ex. J).  Although the supervisor asserted that services were provided in "individualized sessions" with "a great deal" of specialized instruction, she provided no supporting details in that regard (Parent Ex. J ¶ 17).

The progress reports, as described above, provided some evidence that Yeled addressed the student's identified areas of weakness with specially designed instruction (see Parent Ex. H at pp. 1-8).  However, the progress reports included no information regarding the curriculum at the student's nonpublic school or the instruction the student received from his nonpublic school outside of the SETSS and speech-language therapy provided by Yeled (see id.).  Nor does any other evidence in the hearing record.[26]  This is particularly significant here, where the student's most recent IESP indicated that, as a second grade student, he had not been formally taught to identify letters of the English language, the operations of addition or subtraction, or how to perform writing tasks (Parent Ex. C at p. 2).  Despite testimony that the student's providers met with teachers, the evidence in the hearing record does not describe the way in which the SETSS and speech-language therapy from Yeled supported the student in the general education classroom (Parent Ex. J ¶ 14).  Without such information, it is not possible to ascertain whether the student received special education support in the classroom to enable him to access the general education curriculum or whether the SETSS delivered to him, even if provided in a separate location, supported his classroom functioning.[27]  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, the evidence in the hearing record is, overall, insufficient to demonstrate that the student's program was appropriate to meet his needs.

Lastly, the progress reports and the supervisor's testimony noted progress in the student's areas of need, but the evidence in the hearing record also indicates that the student may have stalled in his academic progress (see Parent Ex. H at pp. 1-2, 6).[28]  Specifically, the November 2022 IESP and the June 2024 progress reports both described the student as attending the second grade (compare Parent Exs. C at p. 3, with Parent Ex. H at pp. 1, 6).[29]  In any event, while a finding of progress is a relevant factor to be considered in determining whether a unilateral placement is appropriate, it is not dispositive (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

Therefore, considering the totality of the circumstances, the parent failed to meet her burden of proving that Yeled's services were appropriate for the student (see, e.g., [finding that the parent failed to prove the appropriateness of unilaterally obtained services, despite some evidence of the modalities, strategies, and materials used to assist the student, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of the Student with a Disability, Appeal No. 24-645, [  Application of a Student with a Disability, Appeal No. 25-018 [finding that the parent failed to prove the appropriateness of unilaterally obtained services, despite evidence that those services addressed the student's identified areas of weakness, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of a Student with a Disability, Appeal No. 24-436 [finding that the parent failed to prove the appropriateness of unilaterally obtained services, although the student's private providers reported progress, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]).

VII. Conclusion

In summary, the district's request for dismissal of the parent's appeal and underlying claim for lack of subject matter jurisdiction is denied; and there is insufficient basis in the hearing record to disturb the IHO's determination that the parent failed to prove the appropriateness of the services she unilaterally obtained from Yeled for the 2023-24 school year.  Thus, the necessary inquiry is at an end, and I need not reach the issue of whether equitable considerations support the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

THE APPEAL IS DISMISSED.