I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their daughter's unilaterally obtained services delivered by Always a Step Ahead, Inc. (Step Ahead) for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which awarded compensatory education.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

A Committee on Preschool Special Education (CPSE) convened on July 14, 2021, determined the student was eligible to receive special education services as a preschool student with a disability, and developed an individualized education program (IEP) for the student (see generally Parent Ex. B).  According to the CPSE, the student's full scale IQ was in the borderline range, she exhibited difficulty attending and focusing, and she demonstrated adaptive behavior, speech-language, sensory, and motor delays (id. at pp. 3-6).  The July 2021 CPSE recommended that the student receive seven and one-half hours per week of group (2:1) special education itinerant teacher (SEIT) services, together with two 30-minute sessions per week of group (2:1) speech-language therapy, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), and two 30-minute sessions per week of group (2:1) counseling (id. at pp. 1, 21).[1]

On May 20, 2022, the CSE convened and found the student eligible for special education services as a student with a learning disability and developed an IESP with a projected implementation date of September 1, 2022 (see generally Dist. Ex. 1).[2]  The May 2022 CSE recommended that the student receive two periods per week of group special education teacher support services (SETSS) and related services consisting of three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual PT, and two 30-minute sessions per week of individual counseling services (id. at pp. 13-14).[3]  According to the IESP, the student was parentally placed in a nonpublic school (id. at p. 16).  The district sent the parents a prior written notice of the May 2022 recommendation on June 5, 2022 (see Dist. Ex. 3).

On May 23, 2024, the parents signed a district form declaring that they had placed the student in a nonpublic school at their own expense and requested special education services from the district for the 2024-25 school year (first grade) (Parent Ex. F at p. 1).  Then, on September 3, 2024, the parents electronically signed an agreement with Step Ahead acknowledging the rates the agency charged for SETSS and related services, that the services "being provided" to the student were consistent with the July 2021 IEP and would continue for the entire 2024-25 school year, and that if the district did not pay for the services, the parents would be responsible for payment (Parent Ex. C).[4]  According to the student's mother, Step Ahead began delivering SETSS and speech-language therapy to the student in September 2024, and the agency was "still looking for additional providers," as the parent would have liked the student "to receive all of her mandated services" (Parent Ex. K ¶¶ 1, 3, 7-9).

A. Due Process Complaint Notice

In a due process complaint notice dated September 11, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see generally Parent Ex. A).[5]  The parents disputed the May 2022 IESP because it failed to address the student's "academic, social and emotional issues" and failed to recommend appropriate services (id. at p. 1).  The parents argued that the July 2021 IEP was appropriate for the student and the program and related services should be implemented for the 2024-25 school year (id. at p. 2).  Additionally, the parents asserted that for the 2024-25 school year, the district failed to implement services and that the parents were therefore required to find providers at higher or "enhanced" rates (id.).  The parents requested pendency and direct funding for the student's special education and related services recommended in the July 2021 IEP at enhanced rates (id.).[6]

B. Impartial Hearing Officer Decision

After a prehearing conference on October 16, 2024, and a pendency hearing on November 7, 2024, an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on December 5, 2024 (Tr. pp. 1-49).[7]^, [8]  The IHO issued an interim decision on November 22, 2024, finding that pendency lay in the student's July 2021 IEP which included seven and one-half hours per week of SEIT services, one 30-minute session per week of individual speech-language therapy, two 30-minute sessions per week of group speech-language therapy, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and two 30-minute sessions per week of group counseling (IHO Ex. V).[9]

In a decision dated January 23, 2025, the IHO found that the district failed to meet its burden to prove that it provided the student "a FAPE on an equitable basis" for the 2024-25 school year (IHO Decision at pp. 7-8).  In addition, the IHO found that the district failed to offer "a cogent and responsive explanation" for the recommendations in the student's May 2022 IESP (id. at p. 8).  Furthermore, the IHO found that the district failed to develop an IESP for the student for the 2024-25 school year (id.).

Next, in connection with the unilaterally obtained SETSS and speech-language therapy, the IHO held that the parents failed to meet their burden to prove that the services were appropriate for the student (IHO Decision at pp. 9-10).  With respect to the SETSS, the IHO found that the evidence in the hearing record failed to describe "the specific techniques and methodologies" used during the SETSS sessions with the student (id. at p. 9).  Further, the IHO found that the parents failed to present evidence of goals, progress reports, or session notes with respect to the 2024-25 school year (id.).  The IHO found that the only evidence pertaining to the SETSS was the testimony of the student's mother, which he found to be "vague and lacking in specificity" and failed to describe the specially designed instruction provided to the student (id.).  In connection with the speech-language therapy services, the IHO found that the parents failed to submit any progress reports or other "objective evidence" that the services were specially designed to meet the student's needs (id. at p. 10).  Accordingly, the IHO denied the parents' request for funding of the SETSS and speech-language therapy for the 2024-25 school year with prejudice (id. at p. 14).

For completeness of the hearing record, the IHO addressed equitable considerations (IHO Decision at pp. 10-11).  The IHO determined that the parents failed to submit evidence to support the rates charged by Step Ahead and, if relief was awarded, she would have limited the parents' requested relief for SETSS to a "reasonable market rate as determined by [the district's] [i]mplementation [u]nit" (id. at p. 11).  Next, the IHO addressed the rate charged for speech-language therapy and found no evidence from the district as to a reasonable market rate and therefore found the rate of $250 per hour to be reasonable (id.).

Also, the IHO discussed the parents' requested relief for compensatory education (IHO Decision at pp. 12-14).  The IHO found that the student was entitled to a bank of hours of compensatory education for unimplemented services recommended in the 2021 CPSE IEP and the May 2022 IESP (id. at p. 13).  Specifically, the IHO concluded that the parents were entitled to a bank of hours consisting of two 30-minute sessions per week of OT, two 30-minute sessions per week of PT, and two 30-minute sessions per week of counseling (id. at pp. 13-14).  However, the IHO stated that because the 2024-25 school year had not yet ended the award of compensatory education "for the entirety of the 2024-[]25 school year [wa]s inappropriate as such remedy would be for harms not yet realized" and therefore, the award of compensatory education was from the beginning of the 2024-25 school year through the date of the decision – January 23, 2025 (id. at pp. 13-14).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred as follows: using a Burlington/Carter standard to determine whether the unilaterally obtained SETSS and speech-language therapy were appropriate; finding that the SETSS and speech-language therapy were not appropriate for the student; finding that the mother's testimony was vague and not specific to support the parents' claims that the unilaterally obtained services were appropriate; finding that if the SETSS were awarded it would be at a reduced rate; and failing to award all requested compensatory relief.

As relief, the parents request that the student be awarded seven and one-half hours of SETSS per week, that any SETSS and speech-language therapy delivered to the student by Step Ahead be funded by the district at the rates charged by Step Ahead, compensatory relief for all OT, PT, and counseling mandated on the student's May 2022 IESP for the full 2024-25 school year; and alternatively, if funding for the SETSS and speech-language therapy is not awarded, granting compensatory relief for all SETSS and speech-language therapy mandated on the May 2022 IESP for the full 2024-25 school year.

In an answer and cross-appeal, the district generally denies the material allegations contained in the request for review.  The district asserts that under a Burlington/Carter analysis the parents failed to meet their burden that the SETSS and speech-language therapy were appropriate or that the services were specially designed to meet the student's needs.  In its cross-appeal, the district asserts that the IHO erred in making a finding with respect to compensatory education because the parents did not properly raise the claim in their due process complaint notice, and therefore, any request for compensatory education should be denied.  Next, the district claims that the rates charged by Step Ahead were excessive.  The parents did not interpose an answer to the district's cross-appeal.

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

A. Preliminary Matters

1. Scope of Impartial Hearing and Scope of Review

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]).  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]).

In its cross-appeal, the district argues that the parents failed to properly raise the request for compensatory education in their due process complaint notice as the claim "was not raised with specificity" (Answer & Cr.-Appeal ¶ 14).  However, in the due process complaint notice, the parents "request[ed] compensatory relief as may be appropriate based on the [district's] failure to provide services to [the] student" (Parent Ex. A at p. 2).  I find that the due process complaint notice can be reasonably read as providing notice that the parents requested compensatory education services for those services the district failed to provide for the 2024-25 school year.

Other than alleging that compensatory education was outside the scope of the impartial hearing, the district does not appeal the IHO's award of a "bank of compensatory education hours to be directly funded by [the] [d]istrict either through [r]elated [s]ervices [a]uthorizations ("RSAs") or at a reasonable market rate" consisting of one hour weekly of OT, one hour weekly of PT, and one hour weekly of counseling services (IHO Decision at pp. 13-14).  Accordingly, this finding as well as the IHO's denial of the district's motion to dismiss for lack of subject matter jurisdiction and the IHO's finding that the district denied the student a FAPE on an equitable basis for the 2024-25 school year 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]).

2. Legal Standard

Initially, the parents assert that the IHO erred in using a Burlington/Carter analysis to determine the parents' entitlement to funding for their unilaterally obtained services.

In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement from the district for the cost of the student's parental placement.  Instead, the parents alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, they unilaterally obtained private services from Step Ahead 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 who fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parents are entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parents' 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 obtained for a student by his or her parents 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]).[12]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

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

The most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F., 746 F.3d at 76; R.E., 694 F.3d at 184-85).  Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

Based on the foregoing analysis, and contrary to the parents' arguments, the IHO correctly applied the Burlington/Carter standard to evaluate the parents' request for direct funding for unilaterally obtained services.

B. Unilaterally Obtained Services

Turning to a review of the appropriateness of the unilaterally obtained services, the federal standard for adjudicating these types of disputes is instructive.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. 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 Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. Student's Needs

A brief discussion of the student's needs provides context for the issue to be resolved, namely, whether Step Ahead delivered specially designed instruction to the student to address her unique needs during the 2024-25 school year.

The May 2022 IESP was developed as the student transitioned from preschool to kindergarten special education services, at which time she was parentally placed at a nonpublic school (Dist. Exs. 1 at p. 16; 3 at p. 1; 6).  According to the May 2022 IESP, the student's overall cognitive abilities fell within the borderline impaired range of intelligence, with a significant weakness in attention and memory where she performed three standard deviations below the mean due to poor focusing and difficulty sitting during the evaluation (Dist. Ex. 1 at p. 1).  The student's performance on reasoning, academics, perception, and concept subtests indicated her knowledge and ability to learn was within the "normal" range; however, the student's "overall cognitive score [wa]s an accurate reflection of her current classroom functioning which [wa]s negatively impacted by her poor attention and focusing" (id.).  Additionally, the student's adaptive behavior composite standard score of 75 fell within the moderately low range (id.).

Turning to speech-language, the May 2022 IESP stated the student struggled with expressive and receptive language skills, syntax, focusing, problem solving, articulation, and intelligibility (Dist. Ex. 1 at p. 2).  Receptively, the student followed simple two-step directions, identified shapes, and answered questions about a story (id. at p. 3).  According to a 2022-23 speech-language progress report, receptively, the student sequenced four-picture-card stories, followed directions with prepositions, and identified items based on characteristics and negation, but had difficulty following instructions with temporal terms, answering complex "wh" and comprehension questions, and learning new concepts (Dist. Ex. 7 at pp. 1, 2).  Expressively, the student described objects, listed items in categories, and used transition words, and spoke in "fragments and simple sentences" (id.).  Additionally, the student's speech was hard to understand and presented with "weak lip strength and oral awareness; she often ha[d] excess saliva collecting in her mouth" (id. at p. 2).

The May 2022 IESP stated the student was reported to have "moderately low" socialization skills (Dist. Ex. 1 at p. 4).  The May 2022 IESP noted the student had difficulty sitting in a group environment and attending to an activity for three minutes (id. at p. 1).  In terms of peer interaction, the student was noted to be friendly, social, took turns, and played reciprocally (id. at p. 5).  However, the student's peers had difficulty understanding the student's speech, which impacted their interactions (id.).

In terms of physical development, the May 2022 IESP stated that the student received OT to improve upper and lower extremity strength, graphomotor skills, fine motor skills, visual perceptual skills, hand strength, balance, and gross motor coordination (Dist. Exs. 1 at p. 3; 8 at p. 1).  The student earned a standard score of 79 on the Peabody Developmental Motor Scales, which indicated a delay in her fine motor skills (Dist. Ex. 1 at p. 5).  The clinician opined that her delays were closely related to her weak grasp and poor ability to modulate sensory input (id.).  The student used an immature three finger grasp on writing utensils (Dist. Exs. 1 at p. 3; 8 at p. 1).  Due to decreased hand strength, the student often did not complete graphomotor tasks and was unable to keep pace with her classmates (Dist. Exs. 1 at p. 3; 8 at pp. 1-2).  Additionally, the student presented with "sensory processing immaturity which affect[ed] her ability to adequately engage in various activities in the classroom," and "significant delays" in self-care skills including feeding herself and dressing (Dist. Ex. 1 at p. 5).  In terms of gross motor skills, the student had difficulty with age-appropriate motor planning activities, such as placing one foot on a line in front of the other and tandem walking, walking sideways, jumping forward 36 inches, jumping off an 18-inch step, and she did not alternate her feet to walk up and down steps and required support to navigate stairs (id.).

Academic strengths and needs of the student were also described in the May 2024 Step Ahead "end of 2023-24 progress report" when the student was in kindergarten (see Parent Ex. H).  The progress report, written by the SETSS provider, indicated the student was kind and had above-average art and fine motor skills but struggled in social situations because she tended to play alone instead of participating in group activities (id. at pp. 1, 3).  When the student was tired, she lost focus easily but responded to redirection back to tasks (id. at p. 3).

The May 2024 Step Ahead progress report stated that the student was below grade level in math, reading, and writing (Parent Ex. H at p. 1).  In reading, the student followed print features and expressed thoughts and ideas effectively; however, she struggled with phonics skills like rhyming and decoding single-syllable words (id.).  The SETSS provider recommended four goals to be achieved in the next "three months" for the student to produce verbal rhyming words, decode single-syllable words with onset-rhyme, recall grade level sight words, and read emergent readers (id. at p. 2).  In writing, the student needed support to narrate events and answer questions through writing (id. at p. 1).  The SETSS provider did not identify any strengths in the area of writing (id. at p. 2).  Areas of need were written into goals to be achieved in three months and included narrating events in a sequence and answering questions through recalling information (id. at pp. 2-3).  In math, the student named numbers 0-20, described objects using descriptive words, and named shapes (id. at p. 1).  The student had difficulty counting to 100 by ones and tens, matching numbers to their values, and adding and subtracting within 10 (id. at p. 2).  The SETSS provider recommended four math goals for the student which addressed the above-mentioned weaknesses and a goal to identify how many more objects were needed to get to 10 (id.).

2. SETSS and Speech-Language Therapy Delivered by Step Ahead

The hearing record includes what appears to be a fillable document, which the parents submitted into evidence and identified as "session notes;" however, the document, itself, does not bear any title or reflect the origin of the document (Parent Ex. G at pp. 1-2).  The session notes reflect the student's name; the SETSS provider's name; the date of the session, as well as reporting the "time in" and "time out" for each date; the location of the service (i.e., "school"); areas to describe goals; and areas for notes (id.).

For the 2024-25 school year, the provider's session notes indicated 12, one-hour SETSS sessions were provided at school between September 6, 2024 and November 11, 2024 (see Parent Ex. G).  The first four session notes identified the goals that were addressed during the session, which were identical to annual goals from the May 2022 IESP (compare Parent Ex. G at p. 1, with Dist. Ex. 1 at pp. 7-10).  Session notes indicated the SETSS provider instructed the student on walking "up and down the stairs in line with the class following the teacher and the teacher[']s directions," cutting neatly on a straight line, pasting paper in a notebook, orally retelling a story using the words first, then, next, and last, creating a holiday card/project, reading a short story focused on the "short i" sound, working on sentences differentiating between "I have" and "I don't have," keeping focus when the teacher read a book, handwriting, eating efficiently, and initiating appropriate conversations with peers (Parent Ex. G at pp. 1-2).  While the student was able to orally retell a story, she was not able to write it on paper (id. at p. 1).  Eight of the sessions involved cutting, coloring, pasting, and handwriting with the provider commenting that the student struggled to keep pace with her peers in these skill areas, which is in contrast with the "end of 2023-24 progress report" from Step Ahead, which stated the student had above average art and fine motor skills (compare Parent Ex. G at pp. 1-2, with Parent Ex. H at p. 3).  Only three of the sessions addressed the needs identified at the "end of the 2023-24" school year progress report created by Step Ahead, in which instruction focused on reading books focused on "short i" and retelling a story (compare Parent Ex. G at pp. 1-2, with Parent Ex. H at pp. 2-3).  During a session focused on reading, the SETSS provider noted it "took some time for the student to get a word out" when decoding, which created a "slight problem" because the student "was placed in a group and the students in the group were getting impatient from [the student]'s lack of speed while reading" (Parent Ex. G at p. 1).  Absent from the hearing record is a progress report for the 2024-25 school year similar to that provided for the end of the 2023-24 school year by Step Ahead (see Parent Ex. H).

The hearing record is silent on how the SETSS instruction was specially designed to meet the student's needs, what instructional techniques were used, or how the SETSS provided the student with access to the general education curriculum (see Parent Exs. G; K).  The student's mother reported that the SETSS provider used "a lot of redirection and refocusing" (Parent Ex. K ¶ 11).[13]  Additionally, there was no evidence provided regarding what the general education curriculum consisted of, how the SETSS assisted the student to access the curriculum, or evidence of the student's progress in the general education curriculum other than the mother's testimony that the student was "now able to read," had more confidence in her classwork, and completed homework assignments without discouragement, and that it was easier to understand the student (id. ¶ 12).

While speech-language services were purportedly provided as indicated in the Step Ahead agreement and mother's testimony, there is no documentary or testimonial evidence in the hearing record with respect to when the services were provided or how they addressed the student's speech-language needs (Parent Exs. C at p. 1; K ¶¶ 5, 7-8, 10-11).

The foregoing evidence in the hearing record does not support a finding that the parents met their burden under Burlington-Carter to prove that the services unilaterally obtained for the student constituted specially designed instruction designed to address his unique educational needs.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . . , the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  As noted above, the hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school.  Thus, it is not possible to ascertain whether the student received any special education support in the classroom to enable her to access the general education curriculum or how the SETSS and speech-language therapy delivered to her supported her functioning in the classroom, as provided in the IESP developed for her by the district.

Additionally, there is no information in the hearing record about why Step Ahead did not provide the student's related services of OT, PT, and counseling because the district did not implement those services.  The agreement with Step Ahead stated that the services provided by the agency to the student were "consistent with those listed in my child's IEP/IESP dated: 07/14/21" (Parent Ex. C at p. 1).  However, according to the parents, the student only received SETSS and speech-language therapy from Step Ahead (Parent Ex. K ¶¶ 5-6).  It is unclear then how the student's delays in fine motor, visual motor, visual perceptual/cognitive skills, sensory processing, poor motor planning, and coordination weaknesses were addressed by the nonpublic school (Dist. Ex. 1 at pp. 3, 5-6).

Based on the totality of the circumstances, there is insufficient basis in the hearing record to disturb the IHO's determination that the parents did not meet their burden to prove that the unilaterally obtained services delivered to the student by Step Ahead were specially designed to meet the student's unique needs.

Having determined that the parents did not meet their burden of proving the appropriateness of the unilaterally obtained SETSS and speech-language therapy services for the 2024-25 school year, I need not reach the issue of whether equitable considerations support the parents' request for funding of those services (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

As a final matter, under the particular circumstances of this matter where the parents engaged in self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education above and that ordered by the IHO to, in effect, remediate gaps in the unilateral programming arranged for by the parents, especially absent specific evidence regarding any difficulties they encountered arranging for the services (see generally Application of a Student with a Disability, Appeal No. 24- 625; Application of the Dep't of Educ., Appeal No. 22-139).  Accordingly, I decline to award the additional compensatory education services requested by the parents in the form of SETSS and speech-language therapy.

VII. Conclusion

In summary, there is insufficient basis in the hearing record to disturb the IHO's determinations that the parents failed to prove the appropriateness of the student's services they unilaterally obtained from Step Ahead for the 2024-25 school year.  Furthermore, the hearing record does not support an award of additional compensatory education for unimplemented SETSS and speech-language therapy services.  Accordingly, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.