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 his request that respondent (the district) fund the costs of his daughter's private services delivered by Edopt, LLC (Edopt) for the 2023-24 school year.  The 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

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.

Briefly, a CSE convened on August 17, 2020, and found the student eligible for special education as a student with a speech or language impairment (Parent Ex. B at p. 1).[1]  The CSE developed an IESP for the student (August 2020 IESP) with a projected implementation date of September 10, 2020 and recommended the student receive eight periods per week of direct, group special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech-language therapy and one 30-minute session per week of group speech-language therapy (id. at p. 1, 6).[2]

On May 15, 2023 the parent advised the district of his intent to place the student in a nonpublic school for the 2023-24 school year at his own expense and requested that the district provide the student with special education services at the nonpublic school (Parent Ex. E at p. 1).  Subsequently, a CSE convened on June 8, 2023 and found the student continued to be eligible for special education as a student with a speech or language impairment (Dist. Ex. 5 at p. 1).[3]  The CSE developed an IESP for the student (June 2023 IESP) with a projected implementation date of June 23, 2023, and recommended the student receive eight periods per week of group SETSS and two 30-minute sessions per week of individual speech-language therapy (id. at p. 8).

On July 12, 2023, the parent executed an "Enrollment Agreement" with Edopt for the 2023-24 school year for the provision of services per "the last agreed upon [IESP]" (Parent Exs. C at pp. 2-3).  On August 23, 2023, the parent notified the district that, due to its failure to assign a provider to the student for the recommended program, the parent would unilaterally obtain those services "through a private agency at an enhanced market rate" (Parent Ex. D).  The student began receiving SETSS from Edopt on September 12, 2023 (Parent Ex. F at ¶ 2).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and the 2024-25 school years (Due Process Compl. Notice).[4]  The parent alleged that the district had "failed to develop an appropriate program of services" for the 2023-24 school year, did not supply providers for the services last recommended for the student, and "put the burden on the [p]arent to find providers," which resulted in a denial of a FAPE to the student for the 2023-24 school year (id. at pp. 1-2).  As a result, the parent alleged he "had no choice but to retain the services of an agency . . . at an enhanced rate" (id. at p. 2).  Finally, the parent alleged that the district had not developed "an updated program of services for the student " for the 2024-25 school year and that the previous program had "passed its annual review date," which also resulted in a denial of FAPE for the 2024-25 school year (id.).

For relief, the parent requested an order of funding or reimbursement for the SETSS and related services delivered by the parent's unilaterally obtained provider(s) during the 2023-24 school year at an "enhanced rate" (Due Process Compl. Notice at p. 3).  For the 2024-25 school year the parent also requested the CSE provide "services and supports included by the CSE in the last program of services" (id.).  For both school years, the parent sought compensatory education for "any mandated services not provided by [the district]" (id.).

In a due process response, dated August 15, 2024, the district generally denied the parent's allegations and stated that it intended to "pursue all applicable defenses during th[e due process] proceedings, including . . . a defense against any claims or requested relief alleged pursuant to Education Law §3602-c on the basis that the parent failed to timely send a written request for equitable services by June 1 of the preceding school year, as required by New York State Education Law §3602-c(2)" (IHO II at pp. 1-2).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 9, 2025 (Tr pp. 1-30).  In a decision dated January 27, 2025, the IHO found that district denied the student a FAPE for the 2023-24 school year, that the parent failed to demonstrate that the unilaterally obtained SETSS were appropriate, and that the equitable considerations did not weigh in favor of the parent's requested relief (IHO Decision at p. 1).  The IHO denied the district's motion to dismiss and also dismissed the parent's claims for the 2024-25 school year as he found that the parent had not submitted a written request for dual enrollment services from the district prior to June 1, 2024, per the notice requirements of Education Law § 3602-c (id. at pp. 1, 8-10).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in making certain evidentiary findings, specifically, that the parent's witness was not sufficiently credible, that the hearing record lacked evaluative data required to make an appropriateness finding, that proof of the provider's certification was required, and that the parent failed to present evidence that he made a good faith effort to secure services at the district approved rate.

In an answer the district argues that the IHO's decision should be affirmed as the parent failed to demonstrate the appropriateness of the parent's unilaterally obtained program and equitable considerations did not favor the parent.[5]

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]).[6]  "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.).[7]  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

Initially, neither party appeals the IHO's denial of the district's motion to dismiss for lack of subject matter jurisdiction or the IHO's determinations that the parent did submit a written request for dual enrollment services to the district pursuant to Education Law § 3602-c prior to June 1, 2023 for the 2023-24 school year; that the parent did not submit such notice prior to June 1, 2024 and, therefore, the district was not required to provide the student with equitable services for the 2024-25 school year; and that equitable considerations did not weigh in favor of the parent's requested relief for the 2024-25 school year (IHO Decision pp. 4-5, 9-10).  Accordingly, these findings have become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).  The only remaining issues on appeal are those related to the appropriateness of the unilaterally obtained services and equitable considerations for the 2023-24 school year.

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, he 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]).[8]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.  A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak 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 Cent. 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).

In his decision dated January 27, 2024, the IHO summarized the background and procedural history of the matter, the legal background, and the relevant facts (IHO Decision at pp. 1-4).  The IHO concluded that "taken as a whole" the parent failed to establish that the services provided by Edopt were appropriate for the student (id. at p. 5).  The IHO summarized the legal requirement that the unilaterally obtained placement must be "proper under the Act" citing Burlington and Carter (id.).  The IHO also indicated that the parent, in seeking reimbursement for the services, had the burden to demonstrate that the private services were was appropriate, which required a determination that the services were "reasonably calculated to enable the child to receive educational benefits" (id.).

The IHO summarized the testimony of the parent's witness and noted that the witness worked in the financial department and did not testify beyond the rates charged by the agency's providers, noting specifically, that no testimony from the providers themselves was offered by the parent (IHO Decision at pp. 3-4; see Tr. pp. 10-16; Parent Ex. F).  Moreover, the IHO noted that, although the witness stated the providers were State certified as special education teachers, no other evidence regarding the provider's qualifications was presented (IHO Decision at p. 3; see Parent Ex. F ¶ 4).  The IHO further noted the witness "did not observe, assess, or meet with [the s]tudent" and did not provide any information about the student's clinical assessments or evaluations, or see any session notes, which, consequently, were not included or presented as evidence at the hearing (IHO Decision at pp. 4, 5).  The IHO found there was a complete lack of explanation in the hearing record as to the services that were provided to the student by Edopt, including what methodologies were used or why individual sessions were provided to the student when the operative IESP recommended group sessions (id. at p. 5; see Parent Ex. H; Dist. Ex. 5 at p. 8).  The IHO also identified deficiencies in the Edopt progress report for the 2023-24 school year, noting that it was undated and did not identify who created the report (IHO Decision at p. 6; see Parent Ex. G).  The IHO found that the report described the student's progress in "the most basic terms," for example indicating that the student demonstrated progress in math, but with no explanation of the criteria used to measure progress (IHO Decision at pp. 4-6; see Parent Ex. G at p. 1).

While the IHO weighed additional factors in the analysis of equitable considerations, I find that they also go to the appropriateness of the unilaterally obtained services (see IHO Decision pp. 6-7).  For example, the IHO noted the lack of evidence regarding the certification of the providers and found a lack of evidence that the unilaterally obtained services were actually providing an educational benefit to the student (id. at p. 7).  The IHO again found that the hearing record was devoid of any information regarding the student's abilities and how the student progressed through the school year, noting specifically "no testimony from the providers . . . to demonstrate what activities were conducted to assist [the student]" (id.).  Moreover, the IHO noted that "[v]irtually no information was provided regarding [s]tudent's level of abilities at the beginning of the year or how [her] abilities changed by the end of the school year" (id.).  The IHO reiterated that the only testimony provided was from an employee in the financial department and the witness's sole contribution to the services provided to the student was "processing invoices" (id.).

Upon my independent review of the hearing record, I have determined that the IHO relied on the proper legal standards to support his conclusion that the parent failed to demonstrate the appropriateness of the unilaterally obtained services for the 2023-24 school year and that the IHO carefully recited and considered the testimonial and documentary evidence presented, and carefully marshalled and weighed the evidence in support of his conclusions.

While the IHO bordered in some instances on faulting the parent for failing to establish the student's needs, when it is the district's function to evaluate the student (see 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]), putting aside those observations, I find no basis to disturb the IHO's findings regarding the quality of the evidence, including the lack of first hand knowledge possessed by the parent's witness, the unreliability of the progress report, and the gaps in the hearing record including the lack of testimony from the parent or the providers.[9]  In addition, the district raises additional concerns in its answer to the parent's appeal such as the lack of speech-language therapy in the student's programming or evidence as to whether the SETSS served to allow the student to access the general education curriculum in the nonpublic school (see Tr. p. 15 [indicating that the agency did not provide the student with other services]).

Accordingly, I find that the IHO in this matter conducted a thorough and well-reasoned analysis of the relevant evidence and controlling authority and, accordingly, I find no basis to disturb his findings regarding the appropriateness of the unilateral placement.

VII. Conclusion

Having concluded that there is insufficient basis to overturn the IHO's determination that the parent failed to meet his burden to demonstrate the appropriateness of services provided to the student by Edopt during the 2023-24 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of district funding for the costs of the unilaterally obtained services (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000])..

THE APPEAL IS DISMISSED.