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 partially denied her request for compensatory education related to her son's 2022-23, 2023-24, and 2024-25 school years.  The district cross-appeals from aspects of the relief awarded by the IHO.  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).  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

For the 2022-23 school year, the student was parentally placed in a religious, nonpublic school as a third-grade student (Parent Exs. B at p. 14; C at p. 1; D at p. 1; E at pp. 1-2).  In a June 27, 2022 email to the district, the parent had requested an initial "evaluation for special ed[ucation] services" for the student, noting, among other things, his difficulty with writing, math, and word problems (Parent Ex. G at pp. 6, 7).[1]

In response to the parent's request, the district conducted a speech-language evaluation on October 20, 2022, an occupational therapy (OT) evaluation on October 24, 2022, and a psychoeducational evaluation on November 9, 2022 (Parent Exs. C-E).[2]

A CSE convened on December 20, 2022 and, finding the student eligible for special education services as a student with a speech or language impairment, developed an IESP for the student with a projected implementation date of January 10, 2023 (Parent Ex. B at pp. 1, 12, 14).[3]  To address the student's needs, the CSE recommended he receive two 30-minute sessions per week of individual occupational therapy (OT) in English and two 30-minute sessions per week of individual speech-language therapy in Yiddish (id. at p. 12).

The parent arranged for a private tutor to work with the student for two hours per week during the 2022-23 school year to "try and help him catch up with his peers and make progress," noting that the student's "behavioral challenges [had] caused him to fall behind a lot" (Parent Exs. L ¶ 1; N ¶ 7).  In an August 22, 2023 email, the parent informed the district that the student had struggled at school all year and that he recently met with a psychiatrist who confirmed that the student met the criteria for a diagnosis of attention deficit hyperactivity disorder (ADHD) (Parent Ex. G at p. 1; see Parent Ex. F).

For the 2023-24 school year, the student attended the same religious, nonpublic school, again as a third-grade student (see Parent Exs. F at p. 2; H at pp. 2, 11; K at pp. 1-3).

In May 2024, the parent obtained a private psychological evaluation to assess the student's cognitive, adaptive, and social/emotional functioning (Parent Exs. H; N ¶ 9; M ¶ 4).  The clinical psychologist and school psychologist who jointly evaluated the student concluded that he met the diagnostic criteria for an autism spectrum disorder, without accompanying intellectual or language impairments, and ADHD (Parent Ex. H at p. 13).

A. Due Process Complaint Notice

In a due process complaint notice dated July 15, 2024, the parent, through an attorney, alleged the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A).  In particular, the parent asserted the district failed to develop "procedurally valid and substantively appropriate" IESPs for the student for the school years at issue, including by failing to recommend special education teacher support services (SETSS) or behavioral supports in the December 2022 IESP (id. at pp. 1-2).  The parent also claimed the district failed to convene a CSE to engage in educational planning for the student for the 2023-24 or 2024-25 school years (id. at pp. 2-3).  Finally, the parent alleged that the district failed to implement the one IESP it developed for the 2022-23 school year (id. at p. 1).

The parent requested an order that the student's programming for the 2024-25 school year consist of seven periods per week of SETSS provided in Yiddish, two 30-minute sessions per week of speech-language therapy provided in Yiddish, two 30-minute sessions per week of OT, two 30-minute sessions per week of counseling provided in Yiddish, twenty hours per week of applied behavior analysis (ABA) services, and two hours per week of "ABA supervision" (Parent Ex. A at p. 3).  The parent also sought a bank of compensatory education hours, to be implemented or funded by the district, based on the aforementioned frequency and duration of services, for the 2022-23, 2023-24, and 2024-25 school years, at enhanced rates set by parent selected providers (id. at p. 4).

The district filed a response to the due process complaint notice dated August 29, 2024, generally denying all the parent's claims and asserting several defenses (see Dist. Response to Due Process Compl. Not.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 23, 2024, and concluded on November 8, 2024, after two days of proceedings (Sept. 23, 2024 Tr. pp. 1-13; Nov. 8, 2024 Tr. pp. 1-82).  The district presented no evidence or witnesses (IHO Decision at pp. 4, 6; see Nov. 8, 2024 Tr. pp. 8, 20).  In a decision dated January 10, 2025, the IHO found that the district failed to provide the services mandated in the December 2022 IESP to the student for the 2022-23 school year and failed to convene a CSE or develop a program for the student for the 2023-24 and 2024-25 school years, thereby denying the student a FAPE for the three school years at issue (IHO Decision at p. 7).

The IHO ordered the CSE to convene within sixty days of the IHO's decision to develop an appropriate IEP or IESP for the student (IHO Decision at pp. 7, 19).  The IHO also ordered the district to fund a bank of compensatory OT and speech-language therapy services as follows: two 30-minute sessions per week for each service for the 10-month 2022-23 school year, commencing January 10, 2023; two 30-minute sessions per week for each service for the 10-month (36 week) 2023-24 school year; and two 30-minute sessions per week for each service for the 10-month (36 week) 2024-25 school year, to the extent not already provided (id. at pp. 14-15, 19-21).[4]  The IHO set the rate for all awarded services, except for the OT services for the 2024-25 school year, at "a reasonable market rate as determined by the [district's] implementation unit" (id. at pp. 15, 19-20).  Because the parent testified that a private agency was delivering the student's OT services during the 2024-25 school year, the IHO ordered the OT services for the 2024-25 school year be "fund[ed] at the provider's usual and customary rate" (id. at pp. 15, 21).

The IHO found there was "insufficient information in the hearing record to support [the p]arent's request for SETSS for any of the school years" at issue because the parent's primary evidentiary support for SETSS was the testimony of the parent's retained psychologist, who evaluated the student in May 2024 and recommended educational services to remediate academic deficits in reading and mathematics (IHO Decision at pp. 11-14).  The IHO opined that the retained psychologist's report did not contain information regarding the student's academic abilities or skills in reading or mathematics (id. at p. 12).[5]  The IHO also ruled there was insufficient evidence to support an award of ABA services or ABA supervision (id. at pp. 15-17, 21).  Finally, the IHO found that the parent's requested counseling services "would be overwhelming to a child of [the s]tudent's age" (id. at p. 18).  Thus, the IHO denied and dismissed the parent's remaining requested relief of SETSS, ABA services, ABA supervision, and counseling (id. at pp. 19-21).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in her denial of compensatory education in the form of SETSS, ABA services, and ABA supervision for the school years at issue.[6]  The parent seeks an order requiring the district to provide seven periods per week of SETSS, 20 hours per week of ABA services, and two hours per week of ABA supervision for the 2024-25 school year.[7]  The parent also seeks an award of compensatory education for missed SETSS, ABA services, and board-certified behavior analyst "(BCBA)" services, in addition to the IHO awarded related services for the 2022-23, 2023-24, and 2024-25 school years at issue.

In an answer and cross-appeal, the district challenges the parent's right to seek "BCBA" services, alleging it is beyond the scope of relief sought in the parent's due process complaint notice.  The district further challenges the IHO's rate award for OT services for the 2024-25 school year as inconsistent with the rate awarded for all other compensatory services and alleges that the IHO erred in ordering the CSE to reconvene.  Finally, the district asserts the IHO's denial of SETSS and ABA services should be upheld.

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. Scope of Review and of the Impartial Hearing

Neither party appealed the IHO's determinations that the district failed to offer the student a FAPE for the 2022-23, 2023-24, and 2024-25 school years; that the parent was entitled to the awarded hours of compensatory OT and speech-language therapy; or the IHO's denial of counseling.  Therefore, these determinations have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

The district argues that the parent, on appeal, seeks relief beyond the scope of the due process complaint notice in seeking ABA services for the 2022-23 and 2023-24 school years and BCBA services for all three school years.  The district contends that the parent only requested ABA services for the 2024-25 school year and that the parent did not request BCBA services in her due process complaint notice or at the impartial hearing.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).

With respect to relief (versus alleged violations), the due process complaint notice must state a "proposed resolution of the problem to the extent known and available to the party at the time" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][7][A][ii]; 34 CFR 300.508[b]).  A review of the parent's due process complaint notice reveals that ABA services and ABA supervision were sought by the parent for the 2022-23, 2023-24, and 2024-25 school years (Parent Ex. A at pp. 3-4).  In the proposed relief section of the due process complaint notice, the parent requests, in relevant part, 20 hours per week of direct ABA services and two hours per week of ABA supervision for the 2024-25 school year and then requests the IHO order the district to provide a bank of "compensatory services for each of the above-mentioned services not provided by the [district] during the [20]22-23, [20]23-24, and [20]24-25 [s]chool [y]ears" (id. at p. 4 [emphasis added]).  In the opening statement, the parent's advocate reiterated the parent's request for ABA supervision (Nov. 8, 2024 Tr. p. 12).  In her affidavit testimony, the parent provided additional information about the requested ABA supervision and why it was requested (Parent Ex. N ¶ 16).  Specifically, the parent testified that ABA services require the supervision of a BCBA, two hours per week, to guide and supervise the services, develop and update services plans, and assess the student's ongoing challenges and difficulties related to the diagnosis of autism spectrum disorder (id.).  Thus, the hearing record indicates that the "ABA Supervision" sought in the parent's due process complaint is synonymous with the "BCBA" services the parent seeks on appeal.  As both the request for ABA services and ABA supervision were timely and properly raised in the parent’s due process complaint notice, I will address the parent's request on its merits, below.[10]

The scope of the decision is now limited to determining whether the IHO erred in denying the student compensatory SETSS, ABA services, and ABA supervision for the 2022-23, 2023-24, and 2024-25 school years; in awarding the parent a different rate for compensatory OT services for the 2024-25 school year; and/or in ordering the CSE to convene.

However, first, I must review evidence of the student's needs, as demonstrated by the record before me.

B. Student Needs

In developing the recommendations for a student's IEP or IESP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).  A CSE must consider independent educational evaluations, if they are before the CSE, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]).  The hearing record includes the following evaluative information.

An October 20, 2022 district speech-language evaluation, conducted to assess the student's speech-language skills and determine whether deficits in this area impeded his academic progress, included parent reporting that the student's physical, speech-language, and developmental milestones (toilet training, feeding, dressing himself) were achieved near age expectations (Parent Ex. D at p. 1).  The evaluation report reflected the parent's concerns that the student was not keeping up with his class academically, specifically with reading and reading comprehension (id.).  The evaluation report stated that the parent felt the student had a hard time focusing, but that she did not express social or behavioral concerns (id.).  According to the evaluation report, the student's "general studies teacher" reported that the student was struggling academically because he was a "'daydreamer,'" was having a hard time staying focused, and was "'slower than the class'" in all subjects (id.).

The evaluation report stated that Yiddish was the primary language spoken at the student's school and in the home and was his preferred language when communicating with family and peers (Parent Ex. D at p. 1).  The evaluation was conducted in Yiddish (id.).  The evaluator reported that the student presented as cooperative and established appropriate eye-contact (id. at pp. 1, 2).  Evaluation results, obtained through formal assessment and informal observation, indicated that the student presented with moderate receptive and expressive language delays with deficits characterized by difficulty following complex directions, understanding and using complex sentences to communicate, and explaining associations between words (id. at pp. 1-4).  Additional deficits exhibited by the student included delayed narrative skills including understanding and relating a sequence of events, understanding theory of mind, and making inferences and predictions (id.).  The evaluator stated that the student's "English sentences [were] often not grammatical" and his comprehension of English was limited and that those issues impeded his ability to thrive and progress in the classroom setting (id. at p. 1).  The evaluator found the student qualified for services because his speech-language delays negatively impact his ability to be successful in the general education environment and recommended bilingual Yiddish/English speech-language therapy services be initiated with service mandates to be determined by the school-based assessment team in collaboration with the parent (id.).

The October 24, 2022 district OT evaluation report stated that the student was referred for evaluation "secondary to concerns from his school with reading, writing, and fine motor skills" (Parent Ex. E at p. 2).  According to the evaluation report, school concerns included the student's poor "eye hand coordination," his poor executive functioning, his inability to complete tasks [in a] timely [manner], and his reading" (id.).  The report also stated that the student "g[o]t[] upset and anxious easily" (id.).  The school expressed concerns that the student needed additional interventions to assist him in being successful in his academic environment (id.).  The occupational therapist who conducted the evaluation reported that the student was exposed to English and Yiddish at home and at school and therefore the evaluation was conducted in English since the student's English comprehension was adequate (id.).

According to the evaluation report, the student was "very slow" in completing eye-hand coordination and copying subtests, displayed interest in the evaluation, demonstrated adequate eye contact and attention, and struggled with fine motor coordination (Parent Ex. E at p. 2).  The student presented with emerging bimanual skills and used a thumb wrap when writing (id.).  He had difficulty tracing figures, copying shapes, and completing mazes (id.).  The occupational therapist found the student's overall gross motor skills to be adequate and functional (id.).  According to the OT evaluation report, the student's life skills were functional but he needed some assistance to perform age-appropriate fine motor dressing skills (id. at p. 3).  With regard to visual/ocular motor functioning, the evaluator reported the student had difficulty tracking a wand smoothly through all four quadrants, and exhibited some dysfunction related to convergence and localization (id. at pp. 2-3).  In addition, the evaluator reported that the student struggled with many aspects of visual perception which affected his ability to decode and read and write on grade level (id. at p. 3).  In sum, the occupational therapist stated that based on standardized testing, observation, parent interview, and anecdotes, the student was found to have significant delays in visual motor integration, visual processing, planning, organization, and reading and writing skills and that OT intervention was highly recommended (id.).

The November 9, 2022 district psychoeducational evaluation report indicated that it was part of an initial evaluation and was administered by a bilingual Yiddish clinician, in Yiddish (Parent Ex. C at pp. 1-2).  According to the report, school staff characterized the student's academic functioning as "dramatically delayed" and stated that he was experiencing profound difficulty within the academic domains (id.).  More specifically, the report indicated that the student was "struggling very mightily" in reading and presented with very poor comprehension skills and struggled "very dramatically" when having to look into a text and find meaning and with staying focused and was "very fidgety" in class (id.).  The psychoeducational evaluation report indicated that assessment of the student's cognitive functioning yielded a full-scale IQ in the average range with student strengths in the area of working memory (high average range) and weaknesses in verbal comprehension (low average range) and processing speed (very low range) (id. at pp. 2-3).  Regarding academic functioning, on a standardized measure of academic achievement, the student performed in the extremely low range on the reading comprehension, word reading, math problem solving, and spelling subtests, the low average range on the pseudoword decoding subtest, and average range on the addition, subtraction, and numerical operations subtests (id. at pp. 4-6).  Regarding social/emotional functioning, the examiner stated that initially the student refused to respond to "this psychologist," but that he was "very eager" to perform well and was trying to do his best (id. at p. 2).  In addition, the examiner reported that the student made appropriate small-talk and was appropriately friendly, was quiet and focused during the testing session, and maintained an engaged manner and adequate eye contact (id. at pp. 2, 7).  According to the evaluation report, the parent reported that in school the student was "very dreamy and spaced out" and that he had a very hard time transitioning from one activity to another and would "forget[] what he ha[d] to do" after hearing an instruction (id. at p. 7).[11]

The December 2022 IESP present levels of performance documented the student's academic abilities and deficits included in the fall 2022 assessments (compare Parent Ex. B at pp. 1-5, with Parent Exs. C; D; E).  In addition, the present levels of performance reflected the parent's concerns regarding the student's reading comprehension, problem-solving skills, ability to express himself, limited number of friends, and tendency to be "bossy," and throw temper tantrums often (Parent Ex. B at pp. 4-5).  Academically, the IESP stated that the student had a difficult time organizing tasks and breaking them into steps to complete assigned work and that he struggled with managing time effectively, memorizing facts, understanding what was read, solving multi-step problems, and organizing thoughts when writing (id. at p. 5).  Regarding social development, the IESP stated that the student was well-behaved at school, thrived socially, and had a good relationship with school staff (id.).  The IESP also reported that the student had a difficult time sitting on his chair and transitioning between activities (id.).  With respect to physical development, in addition to reporting from the recent assessments as detailed above, the IESP included reporting that the student was in good health and participated in all activities throughout the day (id. at pp. 5-6).

The following evaluative information was developed after the December 2022 CSE.

Due to the student's "difficulties with impulsivity, self-regulation, distractibility, focusing, time management, and other symptoms which interfere[d] with his ability to function in an age appropriate manner" the parent sought a psychiatric evaluation, which was conducted on August 20, 2023 (Parent Ex. F at p. 1; see Parent Ex. N ¶ 8).  The evaluation report stated that the student had a history of "ADHD symptoms" including difficulties with sustaining attention, distractibility, making careless mistakes, not listening when spoken to, organizing tasks, losing things and forgetfulness, fidgeting and squirming in his seat, waiting his turn, being always "on the go," playing quietly, blurting out answers, and interrupting and intruding on others (Parent Ex. F at p. 1).  The report also stated the student could be "rough" with other students and would impulsively push students without thinking first (id.).  The parent reported the student had anxiety, as well as difficulty transitioning, and would get distracted from his routine, get angry when told "no," and "nag and nag" his parents (id.).

The psychiatric evaluation report also included a description of the student provided by the parent that indicated he was social and had friends, was a leader and charismatic, and kept up in school sufficiently (Parent Ex. F at p. 2).  According to the evaluation report, an educator from the student's nonpublic school said the student was below average academically because of "carelessness" (id.).  The examiner found the student met the criteria for diagnoses of ADHD, combined presentation; unspecified behavioral and emotional disorders in childhood and adolescence; developmental disorder of scholastic skills, unspecified; and anxiety, unspecified (id. at p. 3).

According to the May 2024 psychological evaluation report, the parent reported that the student had difficulty socially and academically and received tutoring (Parent Ex. H at p. 2).  The parent also reported that the student's motor development was delayed and that his fine and gross motor skills were attained later than expected (id.).  Further the parent reported that social interactions could be challenging for the student and that he did not pick up on the nuances of spoken or non-verbal interactions, had trouble taking the perspective of others, struggled with recognizing emotions in others, and could not properly interpret the intentions of others (id.).

The psychologists who conducted the evaluation reported that the student displayed and communicated little understanding of emotions and demonstrated little insight into typical social relationships (Parent Ex. H at p. 2).  In addition, they noted that the student's social overtures lacked integration and at times the student seemed to be speaking in the direction of the examiner rather than to him (id.).  The psychologists found the student did not sustain any reciprocal conversation, displayed limited spontaneous use of gestures, demonstrated limited social responsiveness, and that there was no significant consistent social interchange between the student and the examiners (id.).

The May 2024 psychological evaluation report included the results of standardized intelligence testing, which found the student obtained a full-scale IQ in the average range (Parent Ex. H at pp. 2-3).  The student's adaptive functioning was evaluated via the parent's completion  of behavior rating scales and was found to be "well below the normative mean" (id. at pp. 4-6).  The student's social/emotional functioning was assessed through administration of the Autism Diagnostic Observation Schedule-Second Edition (ADOS-2) and the Behavioral Assessment System for Children, Third Edition (BASC-3) (id. at pp. 6-7).  The psychologists found the student's scores were consistent with a classification of autism as his "total score of 14 exceeded the autism cutoff score and his ADOS-2 Comparison Score of 8 fell within the High range . . . of Autism Spectrum-related symptoms" (id. at p. 12).  The evaluation report stated that based on the results of the BASC-3, "there [wa]s a high level of [autism spectrum disorder] related symptoms and . . . a clear indication that [the student's] issues stem[med] from [a]utism and not any other behavioral difficulty, other than ADHD" (id.).  Among other things, the psychologists noted the need for students with an autism spectrum disorder to receive high rates of consistency in learning and applying new skills in order to ensure carryover to everyday life (id. at p. 13).  To meet this goal the psychologists recommended the student receive ABA services to address his poor social communication skills, social awareness, and coping skills, as well as to modify his rigidity and address adaptive deficits associated with autism spectrum disorder (id. at p. 13).

C. Relief Requested - Compensatory Education

On appeal, the parent pursues an award of SETSS and ABA services with ABA supervision, arguing that, contrary to the IHO's assertions, the record shows the student required these services for the 2022-23, 2023-24, and 2024-25 school years.  In contrast, the district alleges the IHO's denial of these services was well reasoned, citing the IHO's finding that the 2024 evaluation and the psychiatrist's testimony were essentially the only evidence provided that the student required SETSS and ABA services with ABA supervision (see IHO Decision at pp. 11-17).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

1. Special Education Teacher Support Services (SETSS)

In denying the parent's request for compensatory SETSS, the IHO found that neither the December 2022 CSE nor the August 2023 psychiatric evaluation had recommended SETSS for the student (see IHO Decision at pp. 11-12).[12]  However, the December 2022 CSE's failure to recommend SETSS for the student was an issue raised by the parent as a basis for her allegation that the district denied the student a FAPE or equitable services (see Parent Ex. A at p. 2).  The district did not defend the recommendations of the December 2022 CSE during the impartial hearing.  Moreover, the district never convened a CSE to consider whether the student's needs as identified in the August 2023 psychiatric evaluation warranted a recommendation for SETSS.  

The IHO found that the parent "mainly" relied on the May 2024 psychological evaluation to support the request for compensatory SETSS.  The May 2024 psychological evaluation recommended, among other things, that the student receive "educational services to address his learning needs associated with Autism Spectrum Disorder" (Parent Ex. H at p. 13).  In his affidavit testimony, the evaluator elaborated that the student should receive the services "from a trained special education teacher in school, to work on his academic deficits" and that the services be provided for seven to ten hours per week (Parent Ex. M ¶ 18).  In assessing the weight to accord the May 2024 psychological evaluation, the IHO noted that the evaluators did not assess or describe the student's academic abilities (IHO Decision at p. 12).

Putting aside the May 2024 psychological evaluation, the evidence in the hearing record reflects that the student presented with academic needs as early as the December 2022 CSE meeting and that, therefore, an award of compensatory SETSS is appropriate to place the student in the position he would have been but for the district's failure to offer the student appropriate services for the school years at issue.

As detailed above, the December 2022 IESP present levels of performance included academic testing results from the district-conducted November 2022 psychoeducational evaluation, that found the student performing in the "[e]xtremely [l]ow" range in reading comprehension, word reading, math problem solving, and spelling (Parent Ex. B at p. 1; see Parent Ex. C at pp. 4-6).  The November 2022 evaluation report included information from school staff that the student's academic functioning was dramatically delayed and that he was experiencing profound difficulty within the academic domain, was "struggling very mightily" within the reading domain, presented with very poor comprehension skills, struggled "very dramatically" when having to look into a text and find meaning, and struggled "very dramatically" with staying focused (Parent Ex. C at pp. 1-2).  Thus, the district's own assessment demonstrated that the student had intensive academic deficits, and the district has not offer a rationale for the December 2022 CSE's failure to recommend special education support to address the student's academic needs as identified in the evaluation (see Parent Exs. B; C).

Regarding the student's continued need for special education services during the 2022-23 school year and leading in to the 2023-24 school year, the student's private tutor for the 2022-23 school year reported that, when she began working with the student, he read at a first grade level and struggled with phonemic segmentation, decoding, and reading fluency, which affected his comprehension despite his mental capacity to understand storylines. (Parent Ex. L ¶¶ 1-4).  She indicated that, by the end of the 2022-23 school year, although the student achieved some progress in reading and writing, the student required frequent refocusing to develop reading skills and remained below grade level, ending the school year at "an end of first grade level" (id. ¶¶ 5-6).  In writing, the tutor described the student's writing skills as "very poor" and indicated that her work with the student focused on the student's ability to write a simple but full sentence, which he was able to do by the end of the school year with fading prompts (id. ¶ 7).  The tutor reported that she did not work with the student in the area of math but that he struggled in that area as well, demonstrating a "severe inability to comprehend number sense and execute simple addition and subtraction equations" (id.¶ 8).  The tutor emphasized the student's severe attention deficits, which impacted his academic and social skills, necessitating constant redirection and reinforcement (id. ¶ 9).  The student's tutor for the 2022-23 school year indicated in her affidavit testimony that she "highly endorse[d]" the parent's request for compensatory SETSS for the student, noting that the student "required this help, most immediately, in order to help him overcome his unique challenges that [we]re so debilitating to him" (Parent Ex. L ¶ 10).[13]

Regarding the student's continued need for special education services leading in to the 2024-25 school year, the 2023-24 end-of-year report from the student's private school noted that the student, who was finishing third grade for the second time, was reading at a first to early second grade level, struggled to decode regularly spelled one syllable words, struggled to segment spoken single-syllable words into phonemes, and relied on pictures in order to answer questions about a story or a text (Parent Ex. K at p. 1).  With regard to writing, the end-of-year report indicated that the student's writing skills were very poor (better in Yiddish), he could not write a sentence stating a complete thought, and his understanding of basic rules, such as capitalization, was very spotty and poor (id. at p. 2).  Turning to math, the end-of-year report indicated that the student did not have number sense and could not do math word problems without having each component broken down for him (id.).  The end-of-year report stated that the student needed "tutoring and individual support in order to make progress" (id. at p. 1).[14]

Based on the above, even if the IHO was correct to accord the recommendations from the May 2024 psychological evaluation limited weight for the purpose of determining the student's need for SETSS, the hearing record supports the parent's position that an award of compensatory SETSS is warranted.  The parent requested an award based on seven hours per week of SETSS.  The district has not proposed an alternative frequency for SETSS or otherwise articulated a basis to depart from the frequency requested by the parent.  Accordingly, for the 2022-23 school year 147 hours of SETSS from date of implementation of the December 2022 IESP (21 weeks of school x 7 hours), for the 2023-24 school year 252 hours (36 weeks x 7 hours), and for the 2024-25 school year 252 hours (36 weeks x 7 hours), to the extent not yet provided (see Nov. 8, 2024 Tr. pp. 12-13).

Although the parent requested in the due process complaint notice that compensatory education be provided "through private provides to be chosen by the parent" (Parent Ex. A at p.  on appeal, she seeks that the district be required to "provide" the compensatory SETSS (see Req. for Rev. at p. 10).  Even if the parent had phrased her request for compensatory education to be delivered by private providers, absent additional information in the hearing record identifying a plan for the delivery of the compensatory SETSS through private providers, I would order the district to deliver the services subject to any agreement between the parties for other arrangements.  Accordingly, the district will be required to provide the student with 651 hours of compensatory SETSS.

2. ABA Services and ABA Supervision

Regarding ABA services and ABA supervision, the parent claims that expert testimony and educational reports established the student's need for these services starting in 2022.  However, unlike the evidence above supporting the student's needs for SETSS, the hearing record does not support the parent's assertion that an award of compensatory ABA services or ABA supervision would serve to place the student in the position he would have been in had the district not denied him appropriate equitable services for the school years in question.  The primary evidentiary support for the parent's requested ABA services and ABA supervision was the May 2024 evaluation report and the testimony of one of the psychologists who conducted the evaluation.

As detailed above, the May 2024 psychological evaluation report recommended that the student receive ABA services (Parent Exs. H at p. 13; M ¶¶ 16, 17).[15]  This 2024 recommendation for ABA was to address the student's social skills, social awareness, and coping skills as well as to address his rigidity and adaptive deficits associated with autism spectrum disorder (Parent Exs. H at p. 13; M ¶¶ 16, 17).

Within the May 2024 psychological evaluation report, the parent shared that social interactions could be challenging for the student and that he did not pick up on the nuances of spoken or non-verbal interactions, had trouble taking the perspective of others, struggled with recognizing emotions in others, and could not properly interpret the intentions of others (Parent Ex. H at p. 2).  The psychologists reported that the student displayed and communicated little understanding of emotions and demonstrated little insight into typical social relationships, that his social overtures lacked integration, and that at times the student seemed to be speaking in the direction of the examiner rather than to him (id.).  The psychologist added that the student did not sustain any reciprocal conversation, displayed limited spontaneous use of gestures, demonstrated limited social responsiveness, and that there was no significant consistent social interchange between the student and the examiner (id.).

Initially, the May 2024 evaluation report, and its recommendations, were not before the December 2022 CSE or available to inform planning prior to the 2024-25 school year.  Further, review of the May 2024 evaluation report, as well as testimony from the evaluating psychologist and parent in support of ABA services and ABA supervision, demonstrates that the recommendation was made based on a view of the student and his needs that differed from previous reporting from evaluators, school staff, and even the parent.

The psychologist who evaluated the student in May 2024 testified that he reviewed the student's educational and psychological records and, in summarizing the August 2023 psychiatric evaluation, stated that the student experienced significant difficulties and delays socially, noting that social interactions were challenging for the student and that he did not communicate easily (Parent Ex. M ¶ 6).  The psychologist reported that the student seemed to lack the ability or necessary skills to navigate interpersonal relationships and displayed limitations within his social communication and reciprocal social interaction (id. ¶ 14).

In her November 2024 written testimony the parent stated that the student "has always had difficulty with social interactions with adults and peers" and that he did not communicate easily and fluently, did not understand the feelings of others, and did not read the body language of others (Parent Ex. N ¶ 4).  The parent also testified that the student would avoid social situations and preferred to "be alone and play alone" (id.).

However, a review of the evaluative information from fall 2022 though summer 2023 reveals a different social development profile of the student from that presented in the May 2024 report and evaluation.

As noted earlier, the October 2022 speech-language evaluation report indicated that the parent did not express any social or behavioral concerns and the evaluator reported that the student presented as cooperative and established appropriate eye-contact (Parent Ex. D at pp. 1, 2).  Similarly, the October 24, 2022 OT evaluation report describes the student as interested in the evaluation and demonstrating adequate eye contact and attention (Parent Ex. E at p. 2).

Regarding social/emotional functioning, the November 9, 2022 district psychoeducational evaluation report stated that, while the student was not initially responsive, he was ultimately "very eager" to perform well, made appropriate small-talk and was appropriately friendly, was quiet and focused during the testing session, and maintained an engaged manner and adequate eye contact (Parent Ex. C at pp. 2, 7).  Although the December 2022 IESP noted parent concerns that the student had few friends, could be bossy, and would throw temper tantrums, it also included reports that the student was well-behaved at school, thrived socially, and had a good relationship with school staff (Parent Ex. B at pp. 4-5).

Additionally, the August 20, 2023 psychiatric evaluation report, obtained by the parent, included the parent report that the student was social, had friends, was charismatic, and a leader (Parent Ex. F at p. 2).  The report also stated that the parents denied a history of "ASD traits," among other things (id. at p. 1).  As part of a mental status examination the psychiatrist noted that the student was "[c]ooperative with the assessment," "polite toward [the] writer," and made "[g]ood eye-contact" (id. at p. 2).

Given that the May 2024 evaluation describes a different social profile than that summarized in the records from prior evaluations and reports, further inquiry is in order.

Regarding the apparent discrepancy between the student's reported social skills in 2022 and his reported abilities at the time of the May 2024 evaluation, the psychologist testified that it was not unusual for individuals with "high functioning autism" to have their social success depreciate or decline as social demands increase (Nov. 8, 2024 Tr. pp. 58-59).  Regarding the discrepancy in the student's adaptive functioning, the psychologist testified that the decrease in the student's "daily functional skills" could be due to the fact that, for individuals with autism, their adaptive functioning becomes increasingly poor as they get older (Nov. 8, 2024 Tr. pp. 55-57).  The parent testified that the student's social development "issues" escalated during the 2022-23 school year but added that the student was "very charming" and would "sort of weasel his . . . way out of trouble" (Nov. 8, 2024 Tr. p. 40).

Here, as noted by the IHO, the psychologists who conducted the May 2024 evaluation of the student did not solicit information from the student's teachers or OT provider despite the inconsistencies in the student's behavior between the student's prior evaluations and the May 2024 evaluation (IHO Decision at p. 17; see Parent Ex. H).  Also, there is no evidence that the student had been provided ABA services as part of his program.  Without dismissing the viewpoint of the recent 2024 evaluation or the observations of the psychologist and the parent at the time they were made, I find that, for the reasons outlined above, they tended to show a possible evolution in the student's needs over time which is a basis for further testing, school progress reporting, and discussion by a CSE before a reaching a determination that the student requires ABA services and supervision.

Further, while the evaluative reports all included some discussion regarding the student's executive function and sensory needs, which were also identified in the 2024 psychological evaluation report, these areas of need do not necessarily require support limited to ABA services only and likely could be addressed with other classroom supports or accommodations (compare Parent Exs. B at pp. 4-5; C at pp. 1-2, 7; F at p. 1; N ¶ 8, with Parent Ex. H at pp. 2, 7-13).  Indeed, the special education teacher, who worked with the student during the 2022-23 school year, testified that the student had not made as much progress as she would have wanted, as he had "some hyperactivity and a big lack of focusing skills that really affected his progress" (Nov. 8, 2024 Tr. p. 73).  However, she also stated that with her tutoring support, the student made "some progress" and noted that he was "maybe at the end of first grade level" at the end of the school year, which she reported as "almost a full school year" of progress (Nov. 8, 2024 Tr. p. 73; see Nov 8, 2024 Tr. p. 71).  The tutor provided the student with support for two hours per week, but with more frequency—such as the seven hours per week that are awarded as compensatory SETSS as discussed above—the hearing record tends to support a finding that the student would be able to make meaningful progress thereby placing him in the position he would have been but for the district's failure to offer or provide appropriate equitable services.

Therefore, I find the hearing record provides insufficient basis to disturb the IHO's denial of the parent's request for compensatory ABA services and ABA supervision.

3. Rates for Awarded Compensatory OT Services

The district challenges the inconsistency of the funding rates ordered by the IHO.  Except for the OT award for the 2024-25 school year, the IHO ordered all compensatory speech-language therapy and OT be funded at a "reasonable market rate as determined by the [district]'s implementation unit" (IHO Decision at pp 19-21).  However, the IHO ordered the rate for OT for the 2024-25 school year to be funded "at the provider's usual and customary rate" (id. at p. 21).

The hearing record does not contain evidentiary support for an award for a particular provider's delivery of OT services to the student during the 2024-25 school year.  There is no evidence that the parent contracted with any OT or speech-language therapy providers for the school years at issue.  The parent did testify that the student received some OT from a provider, noting that she had been contacted by an OT "agenc[y] or . . . therapy center[]," that she agreed to the "slot available," and that the student was receiving that service "through" the district (Nov. 8, 2024 Tr. pp. 34-37).  However, to the extent the district has already funded or provided some services to the student, they were explicitly omitted from the IHO's compensatory award (i.e., the award was "less any amounts already paid for such services") (IHO Decision at p. 21).  Accordingly, there is no support in the record for the award of a different rate for OT in the 2024-25 school year.

Had either of the parties raised the issue, I would have considered modifying the IHO's compensatory award of speech-language therapy and OT related to all school years to instead be delivered by the district, thereby negating an unnecessary debate over questions of  "rate"; however, as the parties have not challenged this aspect of the IHO's decision, I will order the compensatory OT to be funded at "a reasonable market rate," following the same unchallenged framework used by the IHO for the other compensatory services awarded, provided that, I will order that, by agreement of the parties, the parent may request that the district deliver the compensatory services awarded by the IHO.

D. Additional Relief Ordered – Reconvening the CSE

As a final matter, the district cross-appeals from the IHO's order for the CSE to reconvene within 60 days of her order, as the parent never requested such relief and the IHO did not provide notice that she would raise this issue (see IHO Decision at pp. 7, 19; Parent Ex. A at p. 2-3).

The district's argument that the IHO erred by ordering the CSE to reconvene, is without merit, and I decline to overturn the IHO.  An IHO generally has broad authority to fashion appropriate equitable relief (see, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011]; see Forest Grove v. T.A., 129 S.Ct. 2484 [2009]).  Further, a CSE is obligated to conduct an annual review for the student (34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]), and there is no evidence in the hearing record before me that the CSE has convened since December 20, 2022.  Notably, the district's argument on cross-appeal lacks any assertion, much less evidence, showing that a CSE has convened to address the student's needs since December 2022.  Accordingly, the IHO's order for the CSE to reconvene was an appropriate use of her discretionary authority to direct equitable relief.  Instead the district members of the CSE should be prepared to discuss the private evaluator's and the parent's concerns related to the student's potential need for ABA services as well as offering a cogent explanation for any decisions made on that topic.

VII. Conclusion

As discussed above, I find no basis to disturb the IHO's decision to the extent she ordered the CSE to convene and denied the parent's request for compensatory ABA services and ABA supervision.  However, I find that the hearing record supports an additional award of  compensatory SETSS as a remedy for the 2022-23, 2023-24, and 2024-25 school years.  In addition, the hearing record does not support the IHO's award of different funding rates for the compensatory OT services awarded for the 2024-25 school year.

I have considered the parties' remaining contentions and find it unnecessary to address them given my determinations herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated January 10, 2025, is modified by reversing those portions which found that the student was not entitled to compensatory SETSS and which awarded compensatory OT for the 2024-25 school year at "the provider's usual and customary rate"; and

IT IS FURTHER ORDERED that, unless the parties agree otherwise, the district shall provide the student with 651 hours of compensatory education for missed SETSS in the 2022-23, 2023-24, and 2024-25 school years, less any amount of services already provided to the student; and

IT IS FURTHER ORDERED that the district shall fund the compensatory OT awarded by the IHO for the 2024-25 school year at a reasonable market rate as determined by the district's implementation unit.

IT IS FURTHER ORDERED that the compensatory education awarded by the IHO shall, at the parent's request, be provided by the district instead of by private providers chosen by the parent.