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.  Petitioners (the parents) appeal from the decision of an impartial hearing officer (IHO) which dismissed, in part, the parents' due process complaint notice for lack of subject matter jurisdiction to adjudicate their claims.  The district cross-appeals from that portion of the IHO's decision which alternatively found that the parents sustained their burden to establish the appropriateness of the unilaterally-obtained special education teacher support services (SETSS) delivered to the student by Yes I Can during the 2023-24 school year.  The appeal must be sustained in part.  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[a]).  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

In this case, the evidence reflects that a CSE convened in February 2021 to develop an IESP (February 2021 IESP) for the student—who was eligible to receive special education as a student with a learning disability—and recommended that the student receive the following services: five periods per week of SETSS in a group, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual counseling services (see Parent Ex. B at pp. 1, 7).  At that time, it was noted in the February 2021 IESP that the student, who was in second grade, was "bilingual" and had been "attending [a] bilingual school since pre-k[indergarten]" (id. at p. 3).  The February 2021 IESP reflected that an evaluation had been "requested due to concern about her difficulties with writing, math[ematics] and reading skills in English and Yiddish, as well as difficulty with focus on academic tasks in group academic settings" (id.).[1]  To support the student's management needs, the February 2021 IESP included recommendations for OT, testing accommodations, SETSS, counseling, visual supports in the classroom, positive reinforcement, and breaks throughout the day (id. at p. 4).

Evidence in the hearing record further reflects that, on May 9, 2023, a CSE convened to develop an IESP (May 2023 IESP) for the student for the 2023-24 school year (see Dist. Ex. 2 at p. 1).  Finding that the student remained eligible to receive special education as a student with a learning disability, the May 2023 CSE recommended the following: five periods per week of SETSS in a group, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual counseling services (id. at pp. 8-9).[2]  In addition, the May 2023 IESP included recommendations to support the student's management needs, such as testing accommodations, SETSS, counseling, visual supports in the classroom, graphic organizers, positive reinforcement, and breaks throughout the day (id. at pp. 4-5).

In an email to a district CSE dated May 24, 2023, the parents' attorney advised that the parents were placing the student in a nonpublic school at their own expense and wanted the district to provide the student with special education services "in the next school year" (Parent Ex. C).[3]

On June 27, 2023, the parents electronically signed an agreement with Yes I Can to provide the student with SETSS (see Parent Ex. D at pp. 1, 3).  The agreement included a "Rate Reference Sheet 2023-2024," which reflected that the agency charged $200.00 per hour for SETSS (id. at p. 4).  An individual countersigned the agreement on August 22, 2023 (id. at p. 3).

In a "Progress Report" dated June 2024 (June 2024 progress report), and drafted on Yes I Can letterhead, the student's special education teacher (SETSS provider)—who held a New York State teaching certificate for students with disabilities, birth through second grade—described the student's then-current present levels of performance, reading levels and goals, comprehension goals, mathematics goals, social goals, and language goals (Parent Exs. E at pp. 1-5; F at p. 1).  According to the progress report, the student was in "fifth grade" and received five hours of "special education services" (Parent Ex. B at p. 1).   At that time, the SETSS provider indicated that the student had "made academic progress," and required the "use of specialized methods and resources to develop her skills and work towards grade level" (id. at p. 5).

A. Due Process Complaint Notice

By due process complaint notice dated June 12, 2024, the parents alleged that the district failed to offer the student a free appropriate public education (FAPE) and equitable services for the 2023-24 school year (see Parent Ex. A at pp. 1-2).  The parents invoked the student's right to pendency, and asserted that a February 2021 IESP represented the student's last agreed-upon program, which consisted of the following: five hours per week of SETSS, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of counseling services in a group (id. at p. 2).  For the 2023-24 school year, the parents alleged that the district failed to convene a CSE meeting to develop an IESP or an IEP for the student prior to the start of the school year, failed to fully and timely evaluate the student in all areas of suspected need, failed to implement either IEP or IESP special education services for the 2023-24 school year, and deprived the parents of the right to meaningfully participate in the "education planning process" (id. at p. 3).

As relief, the parents requested an order directing the district to fund the costs of the following services: five hours per week of SETSS by a provider selected by the parents, two 30-minute sessions per week of individual OT services by a provider selected by the parents, and two 30-minute sessions per week of counseling services in a group by a provider selected by the parents (see Parent Ex. A at p. 3).

B. Impartial Hearing Officer Decision

On August 20, 2025, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. p. 1).  After entering the parties' documentary evidence into the hearing record as evidence, the IHO reviewed the substance of the parents' claims and the relief sought (see Tr. pp. 8-9).  In addition, the IHO stated that she would "not be addressing issues of rate appropriateness in these proceedings based on a clarification" issued in August 2024 by the New York State Education Department (NYSED) regarding a "recent regulatory amendment" (Tr. pp. 9-10).  Based on the State guidance, the IHO indicated that claims including disputes about rates for equitable services "should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment" (Tr. p. 10).

The IHO then noted that, since both parties had provided written opening statements "crafted prior to this advisory issued by" NYSED, they had the opportunity to modify those statements at that time (Tr. p. 10).  Accordingly, the parents' attorney clarified that the parents were only seeking reimbursement or funding for the costs of the student's SETSS and were "withdrawing any claims not for SETSS" in this matter, and specifically withdrew their assertion that the district had failed to convene a CSE meeting for the 2023-24 school year since the district had entered a May 2023 IESP into the hearing record as evidence (Tr. p. 11; see Tr. pp. 12-14; see generally Dist. Ex. 2).  The parents' attorney also preemptively addressed what she characterized as the district's anticipated motion to dismiss (see Tr. pp. 11-12).  Finally, the parents' attorney noted that they were still pursuing claims that the district failed to fully and timely evaluate the student and failed to implement the student's services for the 2023-24 school year (see Tr. p. 14).

When given the opportunity to modify its opening statement, the district's attorney requested that the IHO dismiss the parents' claims based on a lack of subject matter jurisdiction, and indicated that the district, while conceding that the May 2023 IESP had not been implemented, continued to contest the parents' claims regarding the failure to fully and timely evaluate the student and that the parents' were denied the opportunity to meaningfully participate in the student's educational planning (see Tr. pp. 14-15).[4]

In response to the district's motion to dismiss, the parents' attorney noted that the IHO's "standing order" required "all other motions or requests for orders by either party" to have been made "in writing at least [10] business days before the scheduled hearing" and must include "any affidavits or exhibits relied upon" (Tr. p. 16; IHO Omnibus Order ¶ 9).[5]  The parents' attorney further noted that the district made the motion to dismiss "for the first time today at [the impartial] hearing," and requested that the IHO deny the motion (Tr. p. 16).

The IHO responded, noting that the "motion for jurisdiction [was] subsequent to information not available at the time to either the IHO or to [the d]istrict representative" (Tr. p. 16).  In addition, the IHO indicated her intention to "still move forward with the case for the claims not related to rate" (id.).  The IHO further indicated that, "jurisdiction [wa]s jurisdiction" regardless of whether the district made the argument, and "if [she] d[id]n't have the ability to decide issues of rate, then issues of rate w[ould] not factor into the decision in this case" (Tr. pp. 16-17).  Thereafter, the parents' attorney presented a closing statement, and the district's attorney relied on its opening statement, reiterating that the IHO lacked subject matter jurisdiction over certain claims made by the parents (see Tr. pp. 19-25).

In a decision dated January 9, 2025, the IHO initially addressed the issue of subject matter jurisdiction (see IHO Decision at pp. 3-5).[6]  According to the IHO, if jurisdiction existed in this matter, then a "Burlington/Carter [s]tandard would guide the analysis" (id. at p. 4).  Relying on this standard, the IHO found that the district "conceded that it did not implement an IESP nor did it offer any record of evaluation," and therefore, the district failed to sustain its burden under the Burlington/Carter standard and denied the student "equitable access on these failures" (id.).  Next, the IHO found that the parents "presented progress reports, service agreements, and provider affidavit testimony," and the hearing record contained "sufficient evidence that the [s]tudent received appropriate services" to meet her needs (id.).  As a result, the IHO determined that the parents had sustained their burden under the Burlington/Carter standard (id.).  The IHO further determined that equitable considerations weighed in favor of the parents' requested relief because the parents cooperated with the district and provided "timely notification of [their] intent to secure those services" (id.).

In light of these determinations, the IHO indicated that the "sole remaining issue" in this matter concerned the rate charged for the services, namely, the district rate versus the provider's rate (IHO Decision at p. 4).  However, the IHO did not address this issue for "two reasons" (id.).  First, the IHO noted that a recent SRO decision in Application of a Student with a Disability, Appeal No. 24-222, "held that facts like these, supported by the exact same evidence, specifically the [d]istrict's rate study"—which used an "analysis of market rates for similar services in similar jurisdictions"—supported the district's "proposed rate" (id.).  Therefore, the IHO indicated that, consistent with that SRO decision, the district's rate in this matter "would have [been] upheld" (id.).

As the second reason to not address the rate issue, the IHO found that she lacked subject matter jurisdiction to "hear issues on implementation of IESPs or provider rates," as explained in a memorandum issued by the New York State Education Department in August 2024, which "clarifie[d] previous guidance intended to clarify the updated amendment" to State regulations (IHO Decision at pp. 4-5).  In light of the foregoing, the IHO concluded that "matters related to implementation and rate [we]re dismissed with prejudice for lack of subject matter jurisdiction" (id. [emphasis in original]).

Notwithstanding these determinations, the IHO addressed the remedy in this matter (see IHO Decision at pp. 5-6).  Here, the IHO noted that the evidence in the hearing record did not "indicate timely evaluations" of the student and failed to establish that the district provided the student with any services (id. at p. 5).  Therefore, the IHO found that the district failed to provide the student with an "educational benefit" and "denied [the p]arent[s] a meaningful opportunity to participate" (id.).  Consequently, the IHO ordered the district to reevaluate the student in all areas of suspected disability within 60 days of the date of the decision, convene a CSE meeting within 30 days of completing the student's evaluations to consider the evaluative information, during the CSE meeting the parents shall inform the district whether the student should have an IESP or an individualized education program (IEP), the district shall make recommendations based on the evaluative information, and the district and parents shall consider annual goals and the student's program and placement (id. at p. 6).  In addition, the IHO ordered the district to issue a prior written notice offering a "cogent explanation for the program choices made" at the CSE meeting (id.).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred by finding that she lacked subject matter jurisdiction to adjudicate the parents' claims related to rate and implementation.  Additionally, the parents contend that any rate amendment applied to due process complaint notices filed after July 16, 2024, and concerned matters for the upcoming 2024-25 school year; in this matter, the due process complaint notice was dated June 12, 2024 and concerned the 2023-24 school year.  Next, the parents assert that the IHO erred by applying a Burlington/Carter analysis to this matter.  The parents further assert that the IHO erred by alternatively upholding the district rate for SETSS, rather than the parents' contracted rate of $200.00 per hour.  As relief, the parents seek an order directing the district to fund five hours per week of SETSS at $200.00 per hour for the 2023-24 school year.

In an answer, the district responds to the parents' allegations and generally argues to uphold the IHO's findings that she lacked subject matter jurisdiction over the parents' claims and that a Burlington/Carter analysis applied to this matter.  The district also argues to uphold the IHO's determination that the parents were not entitled to the contracted rate for the unilaterally-obtained SETSS from Yes I Can.  As a cross-appeal, the district contends that the IHO erred by finding that the parents sustained their burden to establish the appropriateness of the SETSS delivered to the student by Yes I Can during the 2023-24 school year.[7]

In an answer to the district's cross-appeal, the parents assert that the IHO properly concluded that they sustained their burden to establish the appropriateness of the SETSS from Yes I Can.

V. Applicable Standards

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

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[8]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[9]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. Preliminary Matters—Subject Matter Jurisdiction

The parents contend that the IHO erred by finding that she lacked subject matter jurisdiction to adjudicate their claims to be reimbursed for the costs of the SETSS unilaterally-obtained through a contract with Yes I Can for the 2023-24 school year.

Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice 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. 25-127; Application of a Student with a Disability, Appeal No. 25-106; 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]).[10]

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).[11]  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.[12]

In its answer and cross-appeal, the district contends that the decision does not change 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]).[13]  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 section 4404 are repudiated by the due process provisions of section 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).[14]  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 parents' claims must be denied, and the parents' appeal on this point must be sustained.

B. Unilateral Placement

In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parents 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, they unilaterally obtained private services from Yes I Can 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 parents are 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."]).

Contrary to their assertion, the parents' request for district funding of unilaterally-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]).[15]  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).

1. Student Needs

Although not in dispute, a discussion of the student's special education needs provides context to resolve the parties' dispute on appeal, namely, whether the unilaterally-obtained SETSS were appropriate for the student.

As noted in the February 2021 and May 2023 IESPs, the student demonstrated difficulties in mathematics and reading, "as well as difficulty with focus on academic tasks in group academic settings" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 3).[16]  According to the student's IESPs, she struggled "academically due to reading delays, slow laborious handwriting and limited focus in a classroom environment," and "[s]he los[t] her place when she read[] or copie[d] from the board" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 4).  The IESPs indicated that the student needed "individualized attention" from her parents in order "to complete assigned tasks" for homework, and at times, she was "missing information (instructions) needed to do homework" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 3).  In the February 2021 IESP, the parents indicated that they wanted "support services to address [the student's] difficulties with reading and writing skills, and completing academic tasks independently in a timely manner" (Parent Ex. B at p. 3).  In the May 2023 IESP, the parents reported that the student's "reading comprehension skills, and math[ematics] word problems [we]re difficult for [the student]" (Dist. Ex. 2 at p. 3).  Additionally, the student's IESPs noted teacher concerns with her "social emotional progress," such as crying easily, difficulty making eye contact, and having tendency to "stay alone in school" (Parent Ex. B at p. 3; Dist. Ex. 2 at pp. 3-4).

Results of the Vineland-3 reflected in the IESPs indicated that, generally, the student's communication, daily living, personal, coping, and gross and fine motor skills fell within the moderately low range, but that she exhibited adequate socialization, interpersonal, and play and leisure skills (see Parent Ex. B at p. 2; Dist. Ex. 2 at pp. 1-2).  According to the IESPs, the student was "independent for most self-help skills as expected for her age," and "was described to have age appropriate gross motor skills" (Parent Ex. B at p. 3; Dist. Ex. 2 at pp. 3-4).  Further, while both IESPs indicated that the student was "able to participate in all school activities," the February 2021 IESP noted that her performance on measures of motor coordination was in the above average range (compare Parent Ex. B at p. 3, with Dist. Ex. 2 at p. 4).  In addition, the IESPs reflected reports that the student "exhibit[ed] dysfunctional sensory processing skills for processing visual, tactile, proprioceptive and vestibular information," which "result[ed] in immature social participation skills and ineffective organization [and] planning skills (i.e. executive function skills)" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 4).  Additionally, the IESPs indicated that the student was "hypersensitiv[e] to visual, tactile and vestibular stimuli," which "seem[ed] to contribute to [her] distractibility in her classroom setting" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 4).  Further, the student's "poorly integrated reflexes appear[ed] to be associated with several of [the student's] physical and academic limitations" (Parent Ex. B at p. 3; Dist. Ex. 2 at p. 4).

In addition to the student's IESPs providing information about her needs, the hearing record also includes a copy of the June 2024 progress report prepared by the student's SETSS provider from Yes I Can (see generally Parent Ex. E).  As of June 2024, it was reported that the student—who was in fifth grade—struggled with reading grade level texts fluently, comparing and contrasting two texts, generating questions based on a text, forming basic and coherent sentences with conventional spelling and grammar, capitalizing titles in written assignments, comprehending place value, understanding mathematics word problems, depicting which operation to use when solving mathematics problems, maintaining focus for an extended period of time, and regulating her emotions (see Parent Ex. E at pp. 1-4).  Further, the June 2024 progress report indicated that the student "require[d] the use of specialized methods and resources to develop her skills and work towards grade level" and "special education support to support her in mastering her goals" (id. at p. 5).

2. Specially Designed Instruction: SETSS from Yes I Can

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

In this matter, the parents unilaterally-obtained SETSS for the student during the 2023-24 school year.  The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder.  As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125).  For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).

To support her claim for funding of the costs of the unilaterally-obtained SETSS, the parents presented documentary evidence, as well as testimony from the associate director of educational services at Yes I Can (associate director) (see generally Parent Ex. G).  The associate director testified that, from September 7, 2023 to June 30, 2024, Yes I Can delivered five hours per week of individual SETSS to the student at her "mainstream" nonpublic school (id. ¶¶ 24, 36-37, 43).[17]  According to the associate director, services were "typically provided both inside the classroom as push-in sessions and 1:1 in a separate location," and were "individualized sessions that include[d] a great deal of specialized instruction" (id. ¶ 46).  The associate director testified that "[g]oals were created for [the student] to work on during the 2023-2024 school year and [we]re reviewed quarterly," and the "progress report entered into evidence [wa]s an accurate representation of what the providers ha[d] been working on with [the student], including goals, over the course of the 2023-2024 school year" (id. ¶¶ 44-45­).  Additionally, the associate director testified that the student's "progress [wa]s measured through quarterly assessments, consistent meetings with providers and support staff, observation of [the student] in the classroom, and daily session notes" (id. ¶ 47).

According to the associate director, the student's SETSS provider was certified to teach students with disabilities, and "trained and experienced in teaching literacy and comprehension to school aged children and adolescents" (Parent Ex. G ¶ 38; see Parent Ex. F).  The associate director testified that, in addition to "providing direct 1:1 service to [the student], the providers prepare[d] for sessions, create[d] goals, wr[o]te progress reports, and m[et] with teachers and parents" (Parent Ex. G ¶ 41).  Further, she stated that "[t]hese providers ha[d] experience working with [e]lementary school students and were selected based on their training and successful teaching experience with students similar in their education profile to [the student]" (id. ¶ 42).

As previously indicated, the parents also entered a June 2024 progress report into the hearing record as evidence (see generally Parent Ex. E).  Review of the June 2024 progress report reflects the academic goals that the student was "currently working on" to "help [the] student achieve grade level," including reading goals to "[k]now and apply grade-level phonics and word analysis skills in decoding words," "[r]ead with sufficient accuracy and fluency to support comprehension," "[c]ompare and contrast the most important points and key details presented in two texts on the same topic," and to "[a]sk and answer questions to demonstrate understanding of a text, referring explicitly to the text as the basis for answers" (id. at pp. 1-2).  The progress report reflected the student's current level of functioning for each of the goals and reflected that the provider used phonemic awareness activities, "Lively Letters," guided reading, read-alouds, activating prior knowledge, graphic and semantic organizers, "Star Power Books," and the "Visualizing and Verbalizing Approach" to assist the student's progress toward those goals (id.).

In the area of language and written expression, the June 2024 progress report indicated that the student was working on goals to "[d]emonstrate command of the conventions of standard English grammar and usage when writing or speaking," and to "[c]apitalize appropriate words in titles" (Parent Ex. E at p. 4).  After describing the student's current performance, the progress report noted that the SETSS provider used the "All About Spelling Curriculum," worksheets, and "color-coding" to assist the student with those goals (id.).

In mathematics, the June 2024 progress report reflected the current goals for the student to "[u]se place value understanding to round whole numbers to the nearest 10 or 100," and "[u]se multiplication and division within 100 to solve word problems in situations involving equal groups, arrays, and measurement quantities, e.g., by using drawings and equations with a symbol for the unknown number to represent the problem" (Parent Ex. E at p. 3).  According to the progress report, the SETSS provider described the student's current math functioning level and that she used "graphic [o]rganizers and visuals to assist" the student's progress toward those goals (id.).

In the area of social skills, the June 2024 progress report reflected the student's current goals to "[f]ollow agreed-upon rules for discussion," and "[d]emonstrate control of impulsive behavior" (Parent Ex. E at pp. 3-4).  According to the progress report, the student was "able to engage in free play activities" and "devote herself to her classroom assignments," and noted that the SETSS provider used the "Red/Green Behavior System," social stories, role play, and modeling to assist the student's progress with her social/emotional goals (id.).

Although not dispositive, regarding progress, the associate director testified that the student "ha[d] already shown signs of progress with her SETSS," although her "academic and social delays warrant[ed] the need for continued services" of five hours per week of individual SETSS "for the 2023-24 school year" (Parent Ex. G ¶¶ 48-49).  According to the June 2024 progress report, the student "ha[d] demonstrated progress in her ability to express her thoughts and ideas in a coherent manner and decode words containing vowel sounds and dipthongs independently" (Parent Ex. E at p. 1).  In reading, the progress report reflected that, according to the Fountas and Pinnel assessment, "[a]t the start of service, the student scored at level O," and that "[b]ased on the most recent assessment, the student scored at level P," which "demonstrate[d] progress in the area of literacy" (id.).  Overall, the progress report indicated that the student "ha[d] made academic progress" (id. at p. 5).

Having considered the evidence in the hearing record, the IHO properly concluded that the parents' unilaterally-obtained SETSS delivered by Yes I Can provided the student with specially designed instruction to meet her academic needs.  However, it is troubling that both IESPs included recommendations for OT and counseling services, and the June 2024 progress report indicated that the student continued to exhibit social/emotional needs, namely, that she "required assistance with remaining focused on a given topic during peer discussions," and she "tend[ed] to get very overwhelmed when the work [wa]s too difficult for her" (Parent Ex. E at p. 5; see Parent Ex. B at p. 7; Dist. Ex. 2 at pp. 8-9).  Moreover, the hearing record lacks evidence regarding how the student's needs were addressed in her "mainstream" nonpublic school classroom, the instruction the student received in her classroom, and how, if at all, the SETSS provider collaborated with the student's classroom teacher and curriculum, especially where, as here, the evidence indicated that the student's SETSS took place both within the classroom and in an individual setting (see generally Tr. pp. 1-28; Parent Exs. A-H; Dist. Ex. 1-2; IHO Ex. I).  Although the parents were not required to identify the student's needs that previously had been addressed by OT, the hearing record is devoid of information about the student's performance in those areas during the 2023-24 school year (see generally Tr. pp. 1-28; Parent Exs. A-H; Dist. Ex. 1-2; IHO Ex. I).

While the hearing record does not include sufficient evidence to overturn the IHO's finding with regard to SETSS, the parents are only cautioned for the future that, as noted above, information about what instruction or services the student did or did not receive during the school year at issue is relevant to the analysis (see Khanimova, 2025 WL 722876, at *6 [noting that it was appropriate to consider that a unilateral placement did not "provide a substantial portion of the related services" that the student needed as planned in finding the unilateral placement inappropriate]).  While in this matter, the absence of more specific information as to the totality of the educational program the student received during the 2023-24 school year will not weigh against the parents with regard to the appropriateness of the unilaterally-obtained SETSS, it is expected that in any future proceeding, the parents will produce evidence of this nature or it may weigh against the parents' ability to prove the appropriateness of the unilaterally-obtained services, especially if the student has been adequately evaluated by the district, a claim that went ignored by the district in this proceeding.

C. Equitable Considerations

Finally, the parties dispute whether the IHO erred in determining that, assuming the IHO had jurisdiction to award funding, "the IHO would have upheld the [d]istrict's rate" (IHO Decision at p. 4).  Initially, the parent argues as follows: the district has never proposed a specific hourly rate that should apply to the facts of this matter, the district declined the opportunity to cross-examine the associate director at the impartial hearing; the American Institute for Research (AIR) report, offered into evidence by the district and relied upon by the SRO in deciding Application of a Student with a Disability, Appeal No. 24-222, "cannot be relied upon to set a reasonable market rate for private . . . services in New York City" because it includes data from three states and does not account for profit; the 27.7 percent "overhead" rate should not be applied in this case because the district did not disclose the United States Bureau of Labor Statistics (USBLS) data upon which that rate was based and did not request its application during the hearing; and furthermore, the district failed to elicit any testimony regarding the SETSS provider's hourly wage, which nullifies the use of the overhead rate as a figure to determine an appropriate rate (Req. for Rev. ¶¶ 13-16).  The parents seek funding of the costs of the unilaterally-obtained SETSS at the contracted rate of $200.00 per hour.

The district contends that the IHO properly denied the parents' request for an enhanced hourly rate for SETSS at $200.00 per hour.  The district asserts that, contrary to the parents' contention, the hearing record included evidence of an alternative hourly rate through the AIR report.  In addition, the district argues that the IHO's decision to deny the parents' requested rate of $200.00 per hour should be upheld, but if funding is awarded, then the district's implementation unit should determine the reasonable market rate for such SETSS.[18]

Under the Burlington/Carter framework, the final criterion for an award of funding is that the parents' claim must be supported by equitable considerations.  With respect to equitable considerations, the IDEA provides that funding may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).  Among the factors that may warrant a reduction in funding under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  Generally, an excessive rate argument requires, at a minimum, evidence of not only the rate charged for the private services, but evidence of reasonable market rates for the same or similar services.

 

While not all of the AIR report and its methodologies are strictly applicable to a parents' decision to unilaterally obtain private special education services from a private company like Yes I Can, I find that the AIR report, entered into evidence as district exhibit 1, offers some basis to conclude that the rate charged by YES I Can for SETSS was excessive.

First, the AIR report draws data published by the USBLS, a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 (N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data was published.[19]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey, and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers, public and private, working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/ oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

The AIR report appears to address a question of what kind of approach "NYC DOE can use to determine a fair market rate for its Special Education Teacher Support Services (SETSS)" (Dist. Ex. 1 at p. 4).  If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.

However, a parent facing the failure of the district to deliver his or her child's IESP services, who is left searching for a unilaterally selected self-help remedy, would be unable to hire teachers already employed by the district unless a teacher is "moonlighting" and, thus, dually employed; and the parent facing that situation would therefore be unable to negotiate for private teaching services with the same bargaining power that the district holds.  Thus, while the AIR report relies on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose, namely, to ensure fair treatment among union members who are operating in public employment.  Yet, fair treatment among district employees is of little or no interest to a parent who seeks to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees.  Thus, the district-negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.

Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers from across the spectrum including private schools, charter schools, and district special education teachers.  The USBLS data indicated that, in May 2023, annual salaries for "Special Education Teachers, All Other" ranged from $49,000 in the 10th percentile, $63,740 in the 25th percentile, $97,910 in the median, $146,200 in the 75th percentile, to $163,670 in the 90th percentile.[20]

In my view, this is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parents' costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees, and private industry, expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better, and more expensive, than those offered in private industry (see Employer Costs For Employee Compensation (ECEC)—June 2023, available at https://www.bls.gov/news.release/archives/ecec_09122023.pdf).[21]

The undersigned had little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.[22]  I will take this into account when ordering equitable relief.

In this case, the associate director did not provide any testimony regarding the hourly rate that Yes I Can paid the SETSS provider (see generally Parent Ex. G).  Accordingly I will use an hourly rate of $83.68 per hour derived from the USBLS data which, if annualized would approximate the median annual salary of $97, 910 for a special education teacher in the geographic region as described above.  This would leave over $116 attributable to overhead costs, which falls far above the 27.7 percent identified in the USBLS data.

With regard to the $200.00 per hour for SETSS charged by Yes I Can, the associate director testified that the rate included "one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs, and overhead costs" (Parent Ex. G ¶¶ 32-33).[23]  Considering that the associate director only identified general categories of indirect costs that factored into the hourly rate charged without providing the actual overhead costs applied to the rate charged for the student or explaining why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence in the hearing record leads me to the conclusion that the parents arranged for SETSS from Yes I Can at an excessive cost, as the district argues, and that it is more than what the district should be required to pay (id.).  On the other hand, some indirect or overhead cost is reasonable.  Calculating for overhead costs equating to 27.7 percent of the overall rate, and accounting for the provider's wage at the median figure for the metropolitan geographic region, the total rate computes to $115.69 per hour.  Accordingly, the district will be ordered to fund the student's SETSS for the 10-month 2023-24 school year, at a rate of $115.69, subject to the parent providing the district with proof of the student's attendance and invoices from Yes I Can.

VII. Conclusion

As explained above, the district's request for dismissal of the parents' appeal is denied.  While the IHO applied the correct legal standard to assess the parents' entitlement to the relief sought, the IHO erred in dismissing the claim relating to IESP implementation and provider rates for lack of subject matter jurisdiction and, thus, denying relief.  I find that the parents are entitled to an award of funding, as the hearing record supports the IHO's determination that the parents established the appropriateness of the services provided to the student by Yes I Can during the 2023-24 school year.  However, I also find that equitable considerations warrant reduction of the requested rates in accordance with the body of this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED the IHO's decision, dated January 9, 2025, is modified by reversing that portion which dismissed the parents' claim pertaining to IESP implementation and provider rates for lack of subject matter jurisdiction; and,

IT IS FURTHER ORDERED that the district shall fund the costs of no more than five hours per week of SETSS delivered to the student by Yes I Can during the 2023-24 10-month school year, at a rate of $115.69 per hour, upon the parents' submission of proof of delivery.