I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the cost of her daughter's private services delivered by EDopt, LLC (EDopt) during the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which denied the district's request for dismissal based on lack of subject matter jurisdiction.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

At all relevant times, the student was parentally placed at a nonpublic school and eligible for special education as a student with a speech or language impairment (Parent Exs. B at pp. 1, 9; C at pp. 1, 10; F).[1]^, [2]

On November 13, 2019, a CSE convened and developed an IESP for the student with a projected implementation date of November 15, 2019 (Parent Ex. B at p. 1).  The November 2019 CSE recommended that the student receive four periods per week of special education teacher support services (SETSS) in a group setting; two 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual occupational therapy (OT); and testing accommodations (id. at pp. 1, 7).

In a letter dated May 10, 2023, the parent advised the district of her intent to place the student at a nonpublic school at her own expense and requested that the district provide the student with the educational services to which the student was entitled, pursuant to the State's dual enrollment statute, during the upcoming 2023-24 school year (see Parent Ex. F at p. 1).[3]

In a letter dated August 23, 2023, the parent, through an advocacy agency, notified the district of its "fail[ure] to assign a provider for the services mandated for the . . . [student] during the 2023-2024 school year" (Parent Ex. E).[4]  The September 2023 letter stated that, "[i]f the [district] fail[ed] to assign a provider, the parent w[ould] be compelled to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (id.).

On October 9, 2023, the parent signed a contract with EDopt, a private educational agency, under which EDopt would assign providers to deliver services to the student during the 10-month 2023-24 school year in accordance with "the [student's] last agreed upon IEP/IESP/FOFD" (Parent Ex. D at pp. 1-3).[5]  Under the contract's terms, the parent would be financially responsible for any fees not funded by the district (see id. at p. 2).

On October 12, 2023, a CSE convened for a meeting and developed an IESP with a projected implementation date of October 26, 2023 (Parent Ex. C at p. 1).  The October 2023 CSE again recommended that the student receive four periods per week of SETSS in a group setting; two 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual OT; and testing accommodations (id. at pp. 1, 7).

During the 2023-24 school year, EDopt provided the student with four periods per week of SETSS from October 16, 2023 through June 10, 2024 (see Parent Exs. H at p. 1; J at pp. 1-10).

A. Due Process Complaint Notice and Subsequent Events

In a due process complaint notice dated July 14, 2024, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at pp. 3-4).  Specifically, the parent alleged that the district failed to supply providers for the services it recommended and failed to inform the parent how services would be implemented (id. at p. 4).  The parent further alleged that she was unable to procure providers for the 2023-24 school year at the district's rates and, consequently, had no choice but to retain an agency to provide the mandated services at enhanced rates (id.).  The parent requested pendency pursuant to the student's October 2023 IESP (id. at p. 5).  As relief, the parent requested funding of the cost of the student's SETSS, speech-language therapy, and OT at the providers' enhanced rates, along with a bank of compensatory services "to make-up for any mandated services not provided by the [district] during the 23-24 school year" (id.).

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.).

The district submitted a motion to dismiss dated September 4, 2024, in which it argued that the parent's claim was not ripe for adjudication and that the IHO lacked subject matter jurisdiction to adjudicate the parent's claim (Mot. to Dismiss at pp. 1-6).[6]  The parent opposed the district's motion in an answer dated September 17, 2024 (Answer to Mot. to Dismiss at pp. 1, 5).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 16, 2024 and concluded the same day (see Tr. pp. 1-37).  The parent presented various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 10-13; Parent Exs. A-L).  The parent's exhibits included testimony by affidavit from a financial department employee at EDopt, who appeared for cross-examination during the hearing (see Tr. pp. 15-22; Parent Ex. G).  The district presented no witness testimony but offered several documents, each of which the IHO admitted into evidence (see Tr. pp. 6, 8-9; Dist. Exs. 1-4).

In a decision dated January 23, 2025, the IHO denied the district's motion to dismiss and, based on the district's failure to show that it implemented the recommended services, found that the district denied the student a FAPE on an equitable basis (IHO Decision at p. 7).

The IHO then addressed whether the SETSS provided by EDopt during the 2023-24 school year were appropriate for the student and found that the parent failed to meet her burden in that regard (see IHO Decision at pp. 8-9).  The IHO reasoned that the parent's witness, a financial employee of the agency, lacked firsthand knowledge of the student and could not provide any information regarding the educational aspects of the services provided (id. at p. 8).  The IHO further reasoned that the hearing "record d[id] not explain why four periods per week [of SETSS] remain[ed] appropriate for [the] [s]tudent," as her then-current needs were unclear (id.).  According to the IHO, the 2023 IESP contained outdated information, and because EDopt provided services based on that IESP, it could reasonably be inferred that the agency's services were not appropriate (id. at p. 9).[7]  The IHO noted that, according to the SETSS progress report, the "[s]tudent continue[d] to perform below age-level expectations, suggesting that updated evaluations [we]re necessary to identify the reasons for [her] delays and determine what services [we]re . . . appropriate" (id.).[8]

Having found that the parent did not meet her burden to prove that the unilaterally obtained SETSS were appropriate, the IHO denied the requested relief without addressing whether equitable considerations favored the parent's requested relief (IHO Decision at p. 9).  However, the IHO ordered that the district "conduct new evaluations in all areas of suspected disabilit[y]" and reconvene a CSE "to develop a new IEP or IESP for [the] [s]tudent" (id.).

IV. Appeal for State-Level Review

The parent appeals, and the district cross-appeals.  The parties' familiarity with the issues raised in the parties' respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail.  Briefly, according to the parent, the IHO erred in determining that she failed to prove the appropriateness of the unilaterally obtained SETSS.  The parent requests an award of funding of the cost of such services at the contracted rates of $195.00 per hour for individual SETSS and $145.00 per hour for group SETSS.  The district contends that the IHO should have dismissed the parent's due process complaint notice for lack of subject matter jurisdiction.  Additionally, the district argues that, if an SRO finds that the unilaterally obtained services were appropriate, the SRO should reduce the requested award because equitable considerations do not support the parent's request for relief.[9]

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]).[10]  "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.).[11]  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

Neither party has appealed the IHO's refusal to dismiss the parent's claim as unripe for adjudication or the IHO's determination that the district denied the student a FAPE on an equitable basis for the 2023-24 school year.  Nor has either party appealed the IHO's order that the district reevaluate the student and reconvene a CSE to develop an updated educational program for the student.  Those portions of the IHO's decision have, therefore, 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. March 21, 2013).[12]

A. Subject Matter Jurisdiction

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

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

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

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

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[13]

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 notice 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).[14]  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.[15]

According to the district, under the Education Law, parents never had a right to bring a due process complaint regarding implementation of an IESP or to seek relief in the form of 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]).[16]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed as further described below.

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

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" (id. at p. 7).[17]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

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

B. Unilaterally Obtained Services

Turning to the merits, the following disputed issues remain to be addressed: whether the parent met her burden to show that the student received appropriate services from EDopt during the 2023-24 school year; and, if so, whether equitable considerations support the parent's request for relief.

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from EDopt for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[18]  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).

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 v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. The Student's Needs

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

In determining that the parent failed to prove the appropriateness of the unilaterally obtained SETSS, the IHO found that the hearing record lacked sufficient information as to the student's current needs (see IHO Decision at p. 9).  However, contrary to the IHO's reasoning, "it was the district's obligation to evaluate the student and present its view of h[er] needs at the impartial hearing" (Application of a Student with a Disability, Appeal No. 18-049; see 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208, 214 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate, although the private school's assessments and reports were alleged to be incomplete or inaccurate, as the fault for such inaccuracy or incomplete assessment of the student's needs lied with the district]).  Moreover, the hearing record includes undisputed information about the student's needs from the November 2019 and October 2023 IESPs.

According to the student's most recent IESP, created on October 12, 2023, the results of an October 2018 evaluation, which administered the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V), reflected a full-scale intelligence quotient of 92, which fell in the average range; verbal comprehension and working memory scores of 103, and a visual spatial score of 105, all which fell in the average range; and a processing speed score of 77, which fell in the very low range (Parent Ex. C at p. 1).

The October 2023 IESP reported the following information regarding the student's academic performance (Parent Ex. C at pp. 1-2).  In reading, the student could identify "signposts" in fictional texts, extracted information from nonfiction texts, and understood what she read; however, the student struggled to "think deeper" and analyze what she has read, tended to become overwhelmed with "very wordy" text, and did not have large vocabulary (id. at p. 1).  According to the IESP, the student's writing looked disorganized as she failed to write on consecutive lines, the content of her writing was also disorganized as it lacked structure and elaboration, and she needed prompting to express her thoughts in writing (id. at p. 2).  In math, the student became overwhelmed and gave up "when here [wa]s too much going on at once"; she was "not fluent in her multiplication and division facts"; she struggled with word problems; "often fail[ed] to apply previously learned skills"; and her limited fraction skills affected her attempts to perform grade-level math problems (id.).[19]  Regarding the student's classroom performance, the IESP indicated that the student paid attention and concentrated in class, and was motivated "until a task [wa]s too hard," at which point "she fail[ed] to initiate the task and procrastinate[d] as much as possible" (id.).  Additionally, the IESP reflected reports that the student liked when her work was completed "perfectly, which sometimes cause[d] her to fall behind the rest of the class" (id.).

As for the student's social development, the October 2023 IESP described the student as kind, well-liked, and "the follower in a group" (Parent Ex. C at p. 2).  According to the IESP, while the student "relate[d] appropriately to her peers," she did "not have particularly close friendships" and did not "act herself" when frustrated (id.).  The IESP further reported that the student struggled with asking for help; expressing her feelings, wants, and needs; and with word retrieval and general expressive language (id.).

According to the October 2023 IESP, the parent described the student as physically healthy, with no allergies and "gross motor skills . . . within normal limit[s]," but expressed concern with the student's handwriting, hand-eye coordination, and organizational skills (see Parent Ex. C at pp. 3-4).  The IESP indicated that, based on an October 2018 OT evaluation, which included a sentence copying test, the student had "adequate strength in her hands" and "gripped the pencil with appropriate pressure" but "demonstrated poor word spacing" and "inconsistent letter sizing and alignment" (id. at p. 3).  The IESP also indicated that the Test of Visual Motor Integration (TVMI), administered as a part of the October 2018 OT evaluation, yielded results in the below average range (see id.).[20]

The October 2023 CSE identified the following supports to address the student's management needs: "[a] structured academic environment"; "[e]xtra time and adaptations to complete certain tasks"; positive reinforcement; "[t]eacher check-in and assistance"; "[t]he opportunity for breaks if/when frustrated"; repetition and review; "[s]caffolded/[d]ifferentiated instruction and assignments"; graphic organizers and checklists; direct teacher modeling; and multi-sensory learning opportunities (Parent Ex. C at p. 4).

Finally, the October 2023 IESP featured four annual goals to address the student's needs in the areas of reading, writing, and math (Parent Ex. C at pp. 5-6).  In reading, the student's annual goal was to improve comprehension by making predictions and inferences, and "identifying sequence of events, main ideas, and appropriate details and facts" with various supports (id. at p. 5).  In the area of writing, the student's annual goal was to improve written paragraph organization and clarity, use of grade level words and phrases, and ability to revise and edit her work (id. at pp. 5-6).  In the area of math, the student's goals were to solve grade-level problems and multi-step word problems (id. at p. 6).  All of the student's annual goals referenced supports to achieve the goal consisting of modeling, repetition, scaffolding, visual support, processing time, and differentiation (id. at pp. 5-6).

2. SETSS from EDopt

As stated above, the parties dispute whether the IHO erred in determining that the parent failed to prove the appropriateness of the services by EDopt during the 2023-24 school year.  According to the parent, the SETSS progress report and session notes established that EDopt's services were appropriate.  The parent further argues that the district failed to create a new IESP at the start of the 2023-24 school year and that the district's IEP/IESP planning requirements should not be imposed onto the evaluation of a parent's unilateral placement.  According to the district, the SETSS progress report and session notes lacked sufficient detail to establish how EDopt met the student's needs, and the hearing record did not contain testimony in that regard from the student's provider or the parent.  The district further argues that, because the progress report is undated, its relevance, in terms of the student's performance, is unclear; and, although EDopt's financial employee testified that the provider was certified, the parent provided no supporting evidence in that regard.  Finally, the district argues that the parent offered no detail regarding the curriculum at the student's nonpublic school, and without that information, it is impossible to link the student's SETSS with the nonpublic school's curriculum and assess the appropriateness of the student's overall educational program.

As explained below, the hearing record supports the conclusion that the parent failed to prove that the services she unilaterally obtained from EDopt were appropriate for the student, albeit for reasons that differ from the IHO's rationale.

The evidence in the hearing record indicates that, during the 2023-24 school year, the student attended seventh grade at a nonpublic school and received four periods per week of SETSS from EDopt (see Parent Exs. H at p. 1; J at pp. 1-10).  The SETSS timesheets for the 2023-24 school year indicated that the student sometimes received individual SETSS but primarily received SETSS in a group setting in the afternoon (see Parent Ex. J at pp. 1-10).[21]  Session notes, from the week beginning on October 30, 2023 through the week ending on March 24, 2024, indicated that the SETSS provider prepared weekly summaries of the activities, outcomes, and goals addressed during SETSS sessions (see Parent Ex. I at pp. 1-11).

A SETSS progress report for the 2023-24 school year indicated that the student was functioning at a sixth-grade level in reading and math; "learn[ed] best through a hands-on approach, which help[ed] her grasp concepts more concretely," and benefitted from interventions including visual aids, graphic organizers for reading and math, multisensory tools, step-by-step instructions, and "structured guidance in writing" (Parent Ex. H at pp. 1-3).[22]  The progress report included goals to address the student's needs in reading comprehension, writing, and math, but it is unclear whether those goals reflect the skills targeted during SETSS sessions in the 2023-24 school year or recommendations for the following school year (see id. at p. 4).[23]

According to the progress report, "SETSS sessions . . . focused on enhancing [the student's] reading comprehension through the use of graphic organizers and guided practice in retelling stories" (Parent Ex. H at p. 2).  The progress report indicated that the student's "impatience with long tasks and lack of focus[] often hinder[ed] her performance during reading sessions" and "[s]he need[ed] frequent prompting to stay engaged and benefit from the strategies provided" (id.).  The progress report further indicated that, while the student "demonstrated the ability to understand the main ideas in grade-level text," she continued to struggle "significantly with comprehension of details and inferential thinking," and had difficulty with "recalling specific details, making inferences, and supporting her answers with textual evidence" (id. at pp. 1-2).

According to the progress report, writing interventions included modeling sentence structure, using visual aids, and providing step-by-step guidance in writing tasks (Parent Ex. H at p. 2).  The progress report indicated that, while the student was "able to initiate ideas with guidance," and had shown improvement in organizing her work, "she still struggle[d] with extending her thoughts, using varied vocabulary, and adhering to writing conventions" (id.).  The progress report further indicated that, while the student's writing abilities showed some improvement over the 2023-24 school year, "particularly in handwriting and paper organization," the student continued to need significant support, including "reinforcement of organizational strategies," "to help her achieve greater independence in writing" (id.).

The SETSS provider reported using "hands-on tools such as number lines, manipulatives, and procedural charts," which helped the student grasp foundational concepts in math (Parent Ex. H at p. 2).  The progress report indicated that, while the student "ha[d] mastered basic operations" and "show[ed] proficiency in solving single-step equations," she had difficulty "with multistep equations, word problems, and higher-order mathematical concepts" (id.).  It was further reported that the student often became frustrated by complex procedures, leading to errors and a decline in focus (id.).  According to the progress report, although the student's math performance was improving, she still needed support "to keep pace with grade-level expectations" (id.).

Regarding social development, the progress report indicated that, with support, the student was "learning . . . to better cope with academic challenges and express her needs more effectively" (Parent Ex. H at p. 3).  According to the progress report, the student interacted well with "peers and adults, demonstrating kindness and respect," and "ha[d] a close group of friends" (id.).  It was further reported, however, that the student's "difficulty [with] expressing herself during moments of academic frustration sometimes affect[ed] her ability to ask for help or articulate her struggles, leading to moments of withdrawal or disengagement" (id.).  The progress report indicated that "[c]ounseling and continued practice in communication w[ould] further support [the student's] social development" (id.).

Regarding physical development, the progress report indicated that the student had good balance and coordination and that her handwriting had shown improvement (Parent Ex. H at p. 3).[24]  It was further reported, however, that the student "sometimes skip[ped] lines or omit[ted] titles from her papers" and that "her work still lack[ed] neatness" (id.).  The progress report recommended "[c]ontinued encouragement and modeling in SETSS sessions" to further improve the student's paper organization (id.).

While the IHO employed a flawed rationale in faulting the parent for a lack of clarity around the student's then-current needs, as discussed above, the evidence in the hearing record nevertheless fails to establish the appropriateness of the unilaterally obtained SETSS.

Although the parent need not show that the student received every special service necessary to maximize her potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the [student] to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.  Here, the progress report indicated that the SETSS provider addressed the student's identified needs in reading, writing, handwriting, and math; but the session notes indicated that the student worked exclusively on math during SETSS sessions (compare Parent Ex. H at pp. 1-4, with Parent Ex. I at pp. 1-11).[25]^, [26]  Thus, while the student may have benefited from SETSS interventions in math, I am not convinced that the SETSS provider addressed the student's identified needs, which are undisputed, in reading, writing, and handwriting (see Parent Ex. I at pp. 1-11).[27]

Moreover, review of the hearing record in this case reveals that the student had a need for speech-language therapy; for example, the EDopt progress report references that the student's speech and language impairments "significantly impact[ed] her ability to engage with grade-level content," that her "academic struggles primarily involve[d] difficulty expressing her thoughts clearly," and that "[h]er speech impairment also complicate[d] her ability to engage in higher-order thinking tasks" (Parent Ex. H at p. 1).  Although the SETSS progress report asserted that the student received "speech therapy[] to address her speech and language impairments," the hearing record contains no other information regarding the delivery of such services (see Parent Exs. C at pp. 2-3, 7; H at p. 1).

As stated above, the Burlington-Carter framework requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction, which is defined as "adapting, as appropriate, to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; 34 CFR 300.39[b][3]). Yet, in this case, the hearing record includes no information regarding the curriculum at the student's nonpublic school or the instruction the student received from her nonpublic school outside of the SETSS from EDopt.  Nor does the evidence in the hearing record indicate where the student received SETSS or describe the way in which the student's SETSS supported her in the general education classroom.  Without such information, it is not possible to ascertain whether the student received special education support in the classroom to enable her to access the general education curriculum or whether the SETSS delivered to the student, even if provided in a separate location, supported her classroom functioning.  Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum and meet the educational standards that apply to all students, although the progress report and session notes provide some evidence of specially designed instruction, overall, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate to meet her needs.

Thus, considering the totality of the circumstances, the parent failed to meet her burden of proving that EDopt's services were appropriate for the student (see Application of a Student with a Disability, Appeal No. 24-548 [finding that the parent failed to prove the appropriateness of unilaterally obtained SETSS where the hearing recorded included no evidence regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of a Student with a Disability, Appeal No. 24-478 [finding that the parent failed to prove the appropriateness of unilaterally obtained SETSS where the session notes lacked "information regarding how the SETSS providers addressed the student's . . . identified needs in reading and math"]).

VII. Conclusion

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.