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 to be reimbursed for her son's private services delivered by Kinship Resources (Kinship) for the 2024-25 school year.  Respondent (the district) cross-appeals from that portion of the IHO's decision which determined that the parent's unilaterally obtained special education services were appropriate.  The appeal must be dismissed.  The cross-appeal must be sustained.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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]).  In addition, 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 (id.).  If disputes occur between parents and school districts relating to IESPs, 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 CSE convened on November 7, 2022 and reconvened on March 27, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP ("November 2022 IESP") for the student with a projected implementation date of November 21, 2022 (Parent Ex. B at pp. 1, 15).[1]^, [2]  The November 2022 and March 2023 CSEs recommended that the student receive seven periods per week of direct group special education teacher support services (SETSS), one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual occupational therapy (OT), one 30-minute session per week of group OT, and two 30-minute sessions per week of group physical therapy (PT) (id. at pp. 12-13).[3]^, [4]  The IESP reflected that the student was parentally placed in a nonpublic school (id. at p. 15).

On May 23, 2023, a CSE convened to develop an IEP for the summer portion of the 2023-24 school year from July 5, 2023 through August 18, 2023 (Parent Ex. D at pp. 1, 21-22, 26).  The May 2023 CSE recommended that the student receive seven periods per week of direct group SETSS for English language arts (ELA) and math, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group speech-language therapy, with all services provided in a separate location in a district non-specialized school (id. at pp. 21-22, 26).

On May 28, 2024, the parent executed and sent the district a form, on which she stated her intent to place the student at a religious nonpublic school in the district at her own expense for the 2024-25 school year (second grade) and her request for the district to provide the student's special education services (Parent Exs. E; F).

In a letter dated June 21, 2024, the parent notified the district that no CSE had convened to develop an IESP or IEP for the student for the 2024-25 school year (Parent Ex. G).  The parent informed the district that, if it did not "take action to remedy" this failure, she would file a due process complaint notice and "contract with a private agency to provide [her] child with services under pendency" (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated July 9, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2024-25 extended school year (Parent Ex. A).  In particular, the parent alleged that the district "failed to offer and implement a program of special education services and supports to address the student's documented disabilities" in that the district failed to convene a CSE to develop a new program of services for the 2024-25 extended school year and failed to implement the services mandated in the student's most recent May 2023 IEP and November 2022 IESP (id. at pp. 1-2).  For relief, the parent requested that the district fund the student's SETSS and related services at "an enhanced rate" for the entirety of the 2024-25 extended school year and provide compensatory education for services not delivered during the 2024-25 school year (id. at pp. 2-3).

B. Events Post-Dating the Due Process Complaint Notice

On September 3, 2024, the parent executed a service agreement with Kinship, which provided that, for the 2024-25 school year, Kinship would "endeavor to provide special education teacher services and/or related services and supports included in the last-agreed upon IEP or IESP, or in accordance with your child's pendency mandates or an IHO/SRO final decision" (Parent Ex. H).  Within the agreement, the parent represented that she could not afford the costs of services and, therefore, chose "to defer payment until the outcome of the due process hearing process" at rates higher than the company's hourly "Base Rate[s]" (id. at pp. 3-4).[5]

According to an administrator from Kinship, the company began providing the student with eight hours per week of SETSS "on or about September 5, 2024" (Parent Ex. N ¶ D).

A CSE convened on September 13, 2024, to develop the student's IESP for the 2024-25 school year (Parent Ex. C at pp. 1, 15).  The September 2024 CSE recommended that the student receive four periods per week of direct group SETSS in his general education classroom, and four periods per week of direct group SETSS in a separate location, along with one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual OT, one 30-minute session per week of group OT, and two 30-minute sessions per week of group PT (id. at pp. 11-12).  The September 2024 IESP noted that the student was parentally placed in a nonpublic school (id. at p. 15).

C. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 22, 2025 (Tr. pp. 1-48).  In a decision dated February 13, 2025, the IHO found that the district did not meet its burden to prove that it provided the student a FAPE or services on an equitable basis for the 2024-25 school year, noting that it was "undisputed" that the district did not implement the student's IEP or IESP services for the 2024-25 school year (IHO Decision at pp. 1, 6).[6]

The IHO found that the parent met her burden to prove that the unilaterally obtained SETSS were appropriate but did not meet her burden with respect to the speech-language therapy purportedly provided to the student (IHO Decision at pp. 7-8).  The IHO held that the testimony of the Kinship's administrator, combined with the SETSS progress report contained within the record, was sufficient evidence that the program met the student's needs and was "reasonably calculated to allow. . . meaningful progress" (id.).  However, the IHO held that the hearing record did not support a finding that the speech-language therapy was meeting the student's needs as the record contained no evidence as to what the provider then-currently offered or intended to offer the student (id. at pp. 7-8).  The IHO highlighted concerns regarding the veracity of the speech-language therapy implementation plan admitted into the record and determined that, given the lack of explanation combined with lack of evidence as to what, if anything, the student was receiving for speech-language therapy services, the hearing record did not demonstrate that the speech-language therapy services were appropriate (id. at p. 8).

Next, the IHO determined that equitable considerations warranted a reduction in an award of district funding for the costs of SETSS provided to the student by Kinship (IHO Decision at p. 10).  The IHO weighed the evidence before him and cited deficiencies in the Kinship administrator's testimony and the documentary evidence regarding the rate charged by Kinship and in evidence that the parent transmitted notice to the district of her intent to unilaterally obtain private special education services for the student at public expense (id. at pp. 9-10).

The IHO directed the district to provide SETSS and speech-language services to the student "for the duration of the 2024-[]25 school year" (IHO Decision at p. 11).  The IHO denied the parent's request for district funding for the speech-language therapy services purportedly provided to the student by Kinship during the 2024-25 school year, and directed the district to fund the SETSS at a rate to be decided by the district's implementation unit from July 5, 2024 until the district implements a SETTS program for the student during the 2024-25 school year (id.).

As a final matter, the IHO determined that it was undisputed that the student did not receive the recommended OT or PT mandated in the student's IEP and IESP during the 2024-25 school year (IHO Decision p. 8).  The IHO held that the student was entitled to a bank of compensatory education hours to make-up for those services (id.).  Accordingly, the IHO awarded a bank of compensatory education hours for PT and OT services that were mandated but not provided to the student during the 2024-25 school year (id. at p. 11).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in awarding district funding of SETSS provided by Kinship during the 2024-25 school year at a reduced rate and in denying the parent's request for district funding for speech-language therapy services provided by Kinship during the 2024-25 school year.[7]

In an answer and cross-appeal, the district alleges that the IHO erred in ordering the district to fund SETSS provided by Kinship during the 2024-25 school year as the record did not support the IHO's finding that those services were appropriate to meet the student's needs.[8]

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]

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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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., 554 F.3d at 252).  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, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "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).

With respect to students who are enrolled by their parents in nonpublic schools, the IDEA confers no individual entitlement to special education or related services (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., 694 F.3d at 184-85).

VI. Discussion

Initially, neither party appeals the IHO's determinations that the district denied the student a FAPE or services on an equitable basis for the 2024-25 school year or that the student is entitled for a bank of compensatory education hours for missed OT and PT services.  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]).  In addition, neither party disputes that the Burlington/Carter analysis applied by the IHO was the correct approach.  Accordingly, I turn now to the parties' dispute regarding whether the services provided by Kinship were appropriate to meet the student's needs during the 2024-25 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 IDEA for summer 2023 and 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 Kinship 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 Carter, 510 U.S. at 14 [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."]).

Turning to a review of the appropriateness of the unilaterally-obtained services, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

A. Student Needs

Initially, as noted above, the IHO declined to consider the September 2024 IESP because it was beyond the scope of the parent's due process complaint; however, neither party disputes the appropriateness of the September 2024 IESP or the student's needs contained therein.  A brief discussion of the student's needs as described in the September 2024 IESP provides context for the issue to be addressed, namely whether the parent's unilaterally obtained SETSS and speech-language therapy provided specially designed instruction to address the student's special education needs.

A review of the September 2024 IESP shows that the student had a full scale IQ of 83, which was in the low average range (Parent Ex. C at p. 1).  In addition, the IESP reported that the student exhibited academic abilities within the "very low" range with his performance in reading and written expressions in the "very low" range (id.).  According to the IESP, the student "struggled significantly with fundamental literacy skills" which the IEP noted were "essential for academic success" (id.).  The student had difficulty recognizing sight words and phonetic patterns, which led to difficulty with reading fluency and comprehension (id. at pp. 1-2).  In the area of writing, according to the September 2024 IESP, the student had difficulty organizing his thoughts and ideas effectively, and his "written work often lack[ed] clarity, coherence, and proper structure" (id. at p. 2).  He also had difficulty using proper punctuation, capitalization, and grammar (id.).  The student could write his first name, but not his last name, and struggled with tasks that required him to print his name and the date (id.).  Writing headings (e.g., name, date, subject, grade, and task title) took a "long time" and caused him to "fall behind" when copying from the board (id.).  The student's handwriting was inconsistent, with letters of varying size and letter and number reversals (id.).  The September 2024 IESP also related that the student had "a solid understanding of basic math" as evidenced by his math composite score in the "low average" range (id.).  He demonstrated an understanding of basic mathematical operations and problem-solving skills but "required support to fully engage with the curriculum and apply these skills independently" (id.).

The September 2024 IESP related that the student had strong verbal communication skills (Parent Ex. C at p. 2).  He articulated his thoughts and ideas effectively when speaking, particularly when discussing topics of interest, and received speech-language therapy to address delays in articulation, vocabulary, and conversational skills (id. at pp. 2-3).

Regarding the student's social development, the September 2024 IESP reported that the student's communication difficulties impacted on his ability to engage effectively with peers (Parent Ex. C at p. 3).  The IESP noted that the student would benefit from social skills training focused on turn-taking, active listening, and appropriate conversational skills, with "structured opportunities" for cooperative learning and group activities (id.).

In terms of the student's physical development, the IESP noted that the student wore glasses, had difficulty touching his toes when seated and "walked heavily" but could participate in "typical physical activities" at school (Parent Ex. C at p. 3).  He occasionally bumped into objects and used the handrail when going up and down stairs (id. at pp. 3-4).  The IESP reported that the parent had no concerns about the student's physical development (id. at p. 4).

The September 2024 IESP also identified strategies to support the student's management needs including extra time on tests and assignments, visual aids and manipulatives for math, reading materials at a lower level, permitting oral responses over written responses when appropriate, frequent breaks, technology tools (e.g., text-to-speech software) to assist with reading and writing, small group instruction, and peer tutoring to enhance social skills and provide academic support (Parent Ex. C at p. 4).  The September 2024 IESP further identified that the student's "learning disability significantly impact[ed] his ability to participate in general education activities and access the curriculum" (id.).  His low academic abilities in reading, writing, and math made it difficult for the student to keep up with peers and affected his confidence and motivation in school (id.).  The student's "sociable nature" could be used to support his learning through collaborative activities with peers (id.).

B. Unilaterally Obtained Services

As an initial matter, to the extent the IHO found the unilaterally obtained programming appropriate "in part" (i.e., with respect to SETSS) and identified some weaknesses in the evidence as it pertained to appropriateness (i.e., with respect to speech-language therapy), this was error as the Second Circuit has explained, it is not appropriate for an IHO to "conduct[] reimbursement calculations in [the] appropriateness analysis"; rather, "[t]he first two prongs of the [Burlington/Carter] test generally constitute a binary inquiry that determines whether or not relief is warranted, while the third enables a court to determine the appropriate amount of reimbursement, if any" (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]).  With that in mind, I turn to the evidence in the hearing record.

The administrator's affidavit testimony indicated that Kinship provided the student with SETSS and speech-language therapy during the 2024-25 school year (Parent Ex. N ¶ C).  The administrator indicated that the Kinship began providing SETSS on September 5, 2024, but did not state the date on which speech-language therapy purportedly commenced (id. ¶ D).  The administrator identified by name two special education teachers and one speech-language pathologist who she stated were delivering the student's services (id. ¶¶ E-G; see Parent Exs. I-J).  Other than the administrator's testimony, the evidence in the hearing record includes a SETSS progress report dated January 13, 2025, signed by one of the SETSS providers identified by the administrator (compare Parent Ex. K at p. 4, with Parent Ex. N ¶ E), and a speech-language therapy "Implementation Plan" dated January 13, 2024, signed by a speech-language pathologist with a different name than that identified by the administrator (compare Parent Ex. L, with Parent Ex. N ¶ G).[12]

According to the January 2025 SETSS progress report, the student attended a full-day program at a religious nonpublic school in a classroom of approximately 25 students with one head teacher (Parent Ex. K at p. 1).  The report indicated that the student received eight hours per week of SETSS during the 2024-25 school year but did not identify if the SETSS were provided individually or in a group or where or when sessions were provided (i.e., in the classroom or outside of the classroom; during the school day or after school) (id.).  The SETSS report reflected the student's needs, which were consistent with those identified in the September 2024 IESP, and described the instructional methods used with the student (compare Parent Ex. K, with Parent Ex. C at pp. 1-4).

For example, to address the student's difficulty with addition and subtraction skills, the SETSS provider used manipulatives, such as mini block counters, self-made rulers, and detailed number lines, and modeling of problem-solving steps to assist the student (Parent Ex. K at p. 1).  Instruction on "value placement" helped the student with accurately placing and adding numbers in the hundreds column (id.).  The student was supported through "hands-on tools, repeated practice, verbal prompts, and constant checks for understanding" (id.).

The January 2025 SETSS report related that, in reading, the student had difficulty with decoding and word recognition, blending sounds to form words, and reading directions and worksheets (Parent Ex. K at p. 2).  He benefitted from regular practice of sight words, additional practice with reading, and specialized focus on decoding strategies (id.).  When writing, the student had difficulty with letter formation and consistency and reversed some letters and numbers (id.).  The student's SETSS providers used verbal cues, worksheets with directional arrows, and self-correction techniques to help the student spot and fix letter reversals (id.).  The student often relied on others to dictate word sounds and help with writing tasks, but with extra practice, phonics games, and slow repetition of blended sounds, the student could write some words independently (id.).  When allowed to use word builder games and sentence organizers, the student showed increased motivation to complete writing tasks (id.).

The January 2025 SETSS report also reported that the student needed tasks broken into smaller steps and extra time and opportunities to practice (Parent Ex. K at p. 2).  According to the January 2025 SETSS report, the student benefitted from social skills instruction that focused on turn-taking, active listening, and appropriate conversational skills to support his communication challenges (id. at p. 3).  According to the report, SETSS provided the student with structured opportunities for cooperative learning, such as partner work and small group discussion, group activities to practice social skills, and guidance on social cues and appropriate interactions promoted (id.).

The January 2025 SETSS progress report stated that the student had made "meaningful strides" and, with the use of "verbal prompts, checks for understanding, visuals, physical examples, and one-to-one assistance," felt "secure and supported enough to raise his hand, share his thoughts, and complete academic assignments" (Parent Ex. K at p. 1).  He demonstrated progress "overall," and "continue[d] to build his academic and social skills with regular prompts, restructured routines, and positive reinforcement" (id.).  In math, the student made progress completing double-digit addition and subtraction problems with 90 percent accuracy and was applying those skills to problems with regrouping (id.).  He showed "increased confidence and a willingness to attempt these tasks independently," and had made "meaningful progress . . . in building foundational addition and subtraction skills" (id.).

According to the January 2025 SETSS report, the student also demonstrated "notable progress" in reading, especially in comprehension (Parent Ex. K at p. 2).  He demonstrated "good comprehension skills when listening to short stories . . . [and] correctly answer[ed] related questions" (id.).  He was becoming "more familiar" with sight words and his performance on spelling tests had improved to the point where he correctly spelled two to four words correctly out of 10, which was " a modest increase" from the previous school year (id.).  While the student's progress in reading was "much slower" than in other areas, his comprehension and ability to engage with stories was strong, and his spelling and word recognition skills were "gradually improving" (id.).  The student's progress in writing was also "gradually improving" (id.).  He had improved in his ability to identify word sounds and could write words such as "fan, cap, dog, and mat" (id.).  He was also more confident when constructing basic words following a model (id.).  The SETSS report also noted the student's progress with turn-taking and reciprocal conversation (id. at p. 3).

While a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  Nor does evidence of progress substitute for evidence that the services provided were specially designed to address the student's unique needs.

While the hearing record describes the specially designed instruction delivered through SETSS and the student's progress with the SETSS provided, as noted in the district's cross-appeal, absent in the hearing record is information about the student's general education program that the SETTS and speech-language services were meant to support or the student's progress vis-à-vis the general education curriculum.

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]).  However, the hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school, in terms of the structure, instruction and curriculum provided, methodologies, or modifications within the core educational program.  Nor is it possible to ascertain whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the SETSS and speech-language therapy supported his functioning in the classroom.

While the January 2025 SETSS progress report make a brief reference to the facts that "[the student] and his peers ha[d] recently begun working on decomposing numbers" and noted that he could "keep up with his classmates and work more independently," it is unclear from the hearing record whether this reflected a description of the student's performance within the general education classroom or was meant more as a comparison of the student to his peers (Parent Ex. K at p. 1).  References to "structured opportunities for cooperative learning and group activities" lacks context absent a clear articulation of the manner in which the SETSS were delivered (id. at p. 3).  Without evidence regarding the school-based programming, the unilaterally obtained services were described in isolation.  The lack of evidence about what the general curriculum entailed or how the SETSS and speech-language therapy supported access to that curriculum makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  The absence of such information means that the SETSS could not be evaluated in the context of the setting in which the student was purportedly being educated.

Another weakness in the evidence regarding the unilaterally obtained services is the documentation of the speech-language therapy purportedly provided by Kinship.  The January 2024 speech-language therapy implementation plan appears to state a future intention for the student to receive speech-language therapy but there is no evidence that the plan was implemented or executed (Parent Ex. L at pp. 1-2).[13]  According to the January 2024 speech-language therapy plan, the proposed goals were "to be addressed during speech and language services for the [20]24-25 school year" (id. at p. 1).  The January 2024 speech-language therapy plan identified annual goals related to using complete sentences to express thoughts, engaging in conversation with peers and adults, using appropriate sentence structure, and retelling a personal narrative or short story orally or in writing (id. at pp. 1-2).  Potential strategies noted in the January 2024 speech-language therapy plan included language rich activities, such as storytelling, role playing, and sharing personal experiences to enhance expressive language skills, visualizing verbalizing technique, and self-questioning to promote expressive language skills for verbal and written communication, using aids, modeling, and breaking down written tasks, providing consistent language models and practice, using graphic organizers and vocabulary building to help develop spelling skills, and incorporating social communication skills practice such as partner work and small group discussion (id. at p. 1). 

Although the January 2024 speech-language therapy implementation plan identified intended goals and possible strategies for the 2024-25 school year (see Parent Ex. L), there is no evidence in the hearing record that this plan was ever implemented, no reports of the specially designed instruction used with the student, and no evidence of the student's progress with the speech-language therapy provided.  Although the parent asserts in the request for review that the student began receiving speech-language therapy from Kinship in January 2025, there is no evidence in the hearing record to that effect (Req. For Rev. ¶ 17).  The Kinship administrator testified that the student received speech-language therapy from Kinship during the 2024-25 school year and was "entitled to" two 30-minute sessions per week, but did not state when the student began receiving speech-language therapy or if the service was provided at the frequency and duration identified (Parent Ex. N ¶ C).  The hearing record does not include attendance records, therapy logs, or progress reports.  Further, as noted above, although the administrator identified the name of the speech-language pathologist who provided the student's services during the 2024-25 school year, the name given did not match the name of the speech-language pathologist who authored the January 2024 speech-language therapy plan or whose credentials were included in the hearing record, and there is no explanation for this discrepancy in the hearing record (compare Parent Ex. N ¶ G, with Parent Exs. L at p. 2; M).

Here, where analysis of the unilaterally obtained SETSS and speech-language therapy is based on the totality of the circumstances, the lack of information regarding how the student's SETSS were delivered and whether they supported the student in accessing the general education curriculum, coupled with the lack of information regarding the speech-language therapy provided by Kinship, supports a finding that the parent did not meet her burden to prove that the unilaterally obtained services were appropriate.

VII. Conclusion

Having found that the parent failed to demonstrate the appropriateness of the SETSS provided by Kinship, 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 services.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO decision dated February 13, 2025 is modified by reversing that portion of the decision that found the parent was entitled to funding for the unilaterally obtained SETSS services provided by Kinship for the 2024-25 school year.