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 the decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for the costs of her son's privately-obtained, home-based special education teacher support services (SETSS) and which denied her requests for compensatory educational services for the 2023-24 school year.  The appeal must be dismissed.

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]).  If disputes occur between parents and school districts, 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[a]).  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 student in this matter—who is eligible to receive special education as a student with a speech or language impairment— received services through the Early Intervention Program (EIP) and has continuously attended a district public school to receive his special education programming (see Parent Ex. Q ¶ 4).  Evidence in the hearing record reflects that, in January 2023 while the student was attending 11th grade in a district public school, a CSE convened to conduct the student's annual review and developed an IEP for the student with a projected implementation date of January 24, 2023 and with the next annual review projected to occur on January 23, 2024 (see Parent Ex. F at p. 1).  At the time of the January 2023 CSE meeting, the student was attending a 15:1 special class placement for instruction in English language arts (ELA), mathematics, and science, and he received related services consisting of speech-language therapy, occupational therapy (OT), and physical therapy (PT) (id.).  As reported in the January 2023 IEP, the student had "accumulated 34.45 credits out of 34.95 attempted with a grade average of 92.66 [percent]" and had received "waivers for all the required exams to be eligible for a Regents diploma" (id.).  It was also noted in the IEP that the student, who was then in his "third year in high school," was expected to earn his Regents diploma in "four years," and he was then-currently enrolled in courses that would allow him to "earn 12 credits this year" (id. at p. 8).[1]

Finding that the student remained eligible to receive special education as a student with a speech or language impairment, the January 2023 CSE recommended 12-month programming, which for July and August 2023 consisted of 15 hours per week of individual, home-based SETSS using applied behavior analysis (ABA) methodology; two 30-minute sessions per week of individual, home-based OT; two 30-minute sessions per week of individual, home-based PT; and five 30-minute sessions per week of individual, home-based speech-language therapy services (see Parent Ex. F at pp. 16-17).[2]^, [3]  For the 10-month portion of the 2023-24 school year, the January 2023 CSE recommended the following: a 15:1 special class placement for instruction in ELA (five periods per week), mathematics (five periods per week) and sciences (five periods per week); 15 periods per week of individual, home-based SETSS using ABA methodology (pursuant to an impartial hearing); one 40-minute session per week of individual OT and two 40-minute sessions per week of OT in a small group; two 40-minute sessions per week of individual PT; two 40-minute sessions per week of individual speech-language therapy and two 40-minute sessions per week of speech-language therapy in a group; and two 45-minute sessions per week of individual, home-based speech-language therapy (id. at pp. 14-15).  The January 2023 CSE also recommended the services of a full-time, individual paraprofessional (behavior support); assistive technology devices and services (use of a computer); and for the student to participate in adapted physical education (id. at pp. 14-16).  As noted in the January 2023 IEP, the student's instructional or functional reading level was at a seventh grade level, and in mathematics, the student's instructional or functional level was at a fifth grade level (id. at p. 21).

Evidence in the hearing record reflects that on June 6 and 7, 2023, the parent privately-obtained a neuropsychological evaluation of the student (see Parent Ex. E at p. 1).[4]

In a letter dated June 20, 2023, the parent notified the district of her intention to "contract with three independent providers" to deliver the student's home-based SETSS services for the 12-month, 2023-24 school year (Parent Ex. B at pp. 1-2).  The parent informed the district that she would move forward with this plan unless the district immediately provided qualified providers to deliver the home-based SETSS services, and she noted that the independent providers charged $150.00 per hour (id. at p. 2).  Additionally, the parent indicated that she intended to seek public funding for the costs of the student's home-based ABA services (id.).

On June 29, 2023, the parent executed three separate "Contract[s] for Services" with three different SETSS providers to deliver home-based SETSS to the student from July 1, 2023 through June 30, 2024 (Parent Exs. N-P).  Each contract contained the same language, except for the hourly rate charged by each SETSS provider: for example, two of the three SETSS providers charged $100.00 per hour and the third SETSS provider charged $125.00 per hour (compare Parent Ex. N, and Parent Ex. P, with Parent Ex. O).

A. Due Process Complaint Notice

By due process complaint notice dated June 30, 2023, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at pp. 1, 4).  The parent asserted that the district failed to implement the student's home-based ABA-based SETSS, and therefore, the parent located three providers to deliver those services to the student (id. at pp. 4-5).  As relief, the parent initially requested an interim order on pendency directing the district to fund the costs of the student's home-based SETSS (15 hours per week, individually, at the rates of $125.00 and $100.00 per hour depending on the provider) (id. at pp. 5-6).  In addition, the parent sought an order with specific declaratory findings, and directing the district to fund costs of the student's home-based SETSS; to fund the costs of "any other services, at an enhanced rate as necessary, that [we]re necessary for [the student] to obtain any of the related services mandated" in the January 2023 IEP; and to fund compensatory educational services for any service not provided to the student that he was otherwise mandated to receive (id. at p. 6).

B. Impartial Hearing and Events Post-Dating the Due Process Complaint Notice

On July 13, 2023, the parties proceeded to an impartial hearing, however, no one appeared on the district's behalf (see Tr. p. 1).  When the impartial hearing resumed on July 21, 2023, the parties discussed the student's pendency placement, and in an interim decision on pendency, dated July 31, 2023, the IHO ordered the district to provide the following as the student's pendency services based on an unappealed IHO decision, dated September 14, 2022: direct funding of the costs of 15 hours per week of individual, home-based SETSS retroactive to the date of the due process complaint notice (June 30, 2023) (see Tr. pp. 5, 8-16; IHO Ex. I at pp. 1, 4-5).  The impartial hearing resumed on August 8, 2023, and proceeded thereafter over the course of approximately 20 more impartial hearing dates through July 23, 2024, with the parties indicating at each scheduled appearance that they were either working toward settling this matter or the parties needed to extend the compliance date (see generally Tr. pp. 20-95).

In the midst of the proceedings held between August 2023 and July 2024, the evidence reflects that a CSE convened on January 12, 2024, and developed an IEP (January 2024 IEP) for the student to be implemented beginning on February 1, 2024 (see Parent Ex. G at pp. 1, 22).[5]  Finding that the student remained eligible to receive special education as a student with a speech or language impairment, the January 2024 CSE recommended a 15:1 special class placement for instruction in mathematics (five periods per week), five periods per week of SETSS in a group for mathematics, and related services consisting of the following: one 40-minute session per week of individual OT and two 40-minute sessions per week of OT in a small group, two 40-minute sessions per week of individual PT, two 40-minute sessions per week of individual speech-language therapy, and two 40-minute sessions per week of speech-language therapy in a group (id.  at pp. 15-16).  The January 2024 CSE recommended the services of a full-time, individual paraprofessional (behavior support) and assistive technology devices and services (use of a computer) (id. at pp. 16-17).  As noted in the January 2024 IEP, the student's instructional or functional reading level was at an eighth grade level, and in mathematics, the student's instructional or functional level was at a sixth grade level (id. at p. 22).[6]

The evidence also reflects that, as a result of the development of the January 2024 IEP, the parent filed an amended due process complaint notice, dated April 3, 2024, and informed the IHO of the amended due process complaint notice at the impartial hearing held on April 9, 2024 (see Parent Ex. D at p. 1; see also Tr. pp. 96-97).  In the amended due process complaint notice, the parent realleged that the district failed to offer the student a FAPE for the 2023-24 school year, but additionally noted that the district failed to implement the student's related services mandated for July and August 2023 (see Parent Ex. D at p. 2).  With respect to the January 2024 IEP, the parent alleged that the special education program recommended for the student was "grossly incapable of meeting" his needs, and failed to follow the recommendations included in the September 2023 neuropsychological evaluation of the student (id. at p. 3).  The parent also alleged that the January 2024 IEP failed to include a recommendation for home-based SETSS, and failed to recommend any special education to address the student's needs in reading and writing (id. at pp. 3-4).  In addition, the parent asserted that the January 2024 IEP failed to include annual goals and failed to include a recommendation for counseling services (id. at p. 4).  As relief, the parent repeated her requests set forth in the June 2023 due process complaint notice, and added requests for compensatory educational services for the related services the student did not receive during July and August 2023 (OT, PT, and speech-language therapy), as well as requesting that the district fund compensatory educational services for individual, multisensory tutoring and executive function coaching as determined by evidence (id. at pp. 6-7).

Following the impartial hearing in July 2024, the parties began the presentation of their respective cases at the following impartial hearing held on August 29, 2024, and the parent entered evidence into the hearing record (see generally Tr. pp. 116-36; Parent Exs. A-R; IHO Exs. I-III).[7]  After entering the parent's evidence into the hearing record, the IHO and the parties discussed the relief sought by the parent, wherein the parent's attorney stated that the reimbursement for the costs of the student's home-based SETSS—meaning, 15 hours per week of individual SETSS—had already been "compensated through pendency," and there was no outstanding balance remaining to be paid for those services (Tr. pp. 127-28).  As a result, the parent only sought a finding that the student was entitled to 15 hours of home-based SETSS at the rates of $125.00 and $100.00 per hour for the respective providers as relief, as well as compensatory educational services for speech-language therapy (15 hours), OT (6 hours), PT (6 hours), and tutoring services (105 hours) (see Tr. pp. 127-29).  The parent's attorney noted in the opening statement that the request for compensatory tutoring services arose due to the January 2024 CSE's decision to remove "special education support" in ELA, and the resulting regression in the student's reading and writing skills (Tr. pp. 132-33).  According to the parent's attorney, the student "should have received at least an hour per day of special education instruction in reading and writing" from the date of the January 2024 IEP through the conclusion of the 2023-24 school year (Tr. p. 133).

  Ultimately, the impartial hearing concluded on December 20, 2024, after approximately 28 total days of proceedings (see Tr. pp. 190-95).[8]

C. Impartial Hearing Officer Decision

In a decision dated March 4, 2025, the IHO found that the district failed to offer the student a FAPE for the 2023-24 school year, the parent failed to sustain her burden to establish that the privately-obtained home-based SETSS were appropriate to meet the student's needs, and equitable considerations weighed in favor of the parent's requested relief (see IHO Decision at pp. 25-28).

In finding that the parent failed to sustain her burden of proof, the IHO initially noted that two of the three SETSS providers did not testify at the impartial hearing about the services they delivered to the student, and the progress reports entered into evidence did not "cite progress" with regard to the home-based SETSS (IHO Decision at p. 27).  According to the IHO, the parent's evidence consisted of "general information about the services provided," which was not sufficient to demonstrate that the privately-obtained SETSS were appropriate or "specifically designed to meet the student's needs" (id.).  Additionally, the IHO indicated that the hearing record lacked evidence concerning "how those services were integral to the student's educational progress" and therefore, based on a totality of the circumstances, the parent did not sustain her burden (id. at pp. 27-28).

Turning to the parent's request for compensatory educational services, the IHO found that the student was "entitled to compensatory services" for the district's failure to offer the student a FAPE for the 2023-24 school year (IHO Decision at pp. 28-29).  However, the IHO also found that the hearing record did not include sufficient evidence to "support compensatory relief" for that school year, noting that the hearing record lacked evidence "regarding how the hours requested were to be utilized and apportioned going forward and how the bank of hours would assist the student in receiving the benefit he should have if the [district] had provided a FAPE" (id. at p. 29).

For these reasons, the IHO denied the parent's request to be reimbursed for the costs of 15 hours per week of privately-obtained, home-based SETSS; the IHO similarly denied the parent's request for compensatory educational services, consisting of 15 hours of speech-language therapy, 6 hours of OT and 6 hours of PT (see IHO Decision at pp. 29-30).  Next, the IHO ordered the district to "either provide services pursuant to the January 2023 and 2024 IEPs that were not provided or reimburse [or] directly pay" the parent's private provider (id. at p. 30).  The IHO also ordered the district to "reimburse or direct[ly] pay" the SETSS providers for "unpaid hours from June 30, 2023 to the issuance" of the decision (id.).  Finally, the IHO ordered the district to "provide services as above or to direct[ly] pay the service provider [or] reimburse [the p]arent at the rate to be determined by the [district's implementation unit] based upon the lowest rates paid to such provider or comparable rates to comparable providers for the same or similar students," less any services the district had already provided or otherwise funded (upon the parent providing proof of services and itemized invoices) (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging initially that the IHO erred by improperly shifting the burden of proof regarding compensatory educational services to the parent and by denying the parent's request for compensatory educational services consisting of 105 hours of tutoring services.  Alternatively, the parent contends that if the IHO properly denied her request for compensatory tutoring services, the IHO erred by failing to award any compensatory educational services, and the IHO failed to develop the hearing record with respect to the student's need for compensatory educational services.  Next, the parent argues that the IHO erred by finding that the privately-obtained, home-based SETSS were not appropriate to meet the student's needs.  The parent further argues that the IHO erred by failing to award compensatory educational services for the speech-language therapy, OT, and PT the student did not receive during July and August 2023, and moreover, that the IHO's order attempting to address this deprivation was "vague" and "indefinite" and improperly granted the district with discretion in order to implement the order.  Next, the parent contends that the IHO erred by ordering the district's implementation unit to determine the appropriate rates for providers to deliver the missed services to the student.  As a final point, the parent asserts that the IHO's decision was internally inconsistent and incomprehensible, thereby creating "numerous ambiguities" about the IHO's findings.  With respect to relief, the parent seeks to reverse the IHO's findings that the privately-obtained, home-based SETSS were not appropriate and that the student was not entitled to compensatory educational services.  The parent also seeks an order directing the district to fund compensatory educational services, consisting of the following: 105 hours of tutoring services at a rate not to exceed $125.00 per hour, 15 hours of speech-language therapy, 6 hours of OT, and 6 hours of PT all delivered by a private provider selected by the parent at the provider's standard rates.

In an answer and cross-appeal, the district responds to the parent's allegations and generally argues to uphold the IHO's decision in its entirety.

V. Discussion

A. Preliminary Matters—Scope of Review

Since the district has not appealed the IHO's finding that the district failed to offer the student a FAPE for the 2023-24 school year, this determination has 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]).

With respect to that portion of the parent's appeal seeking to reverse the IHO's finding that the privately-obtained, home-based SETSS were not appropriate to meet the student's needs, it is well settled that the dispute between the parties in an appeal must at all stages be "real and live," and not "academic," or it risks becoming moot (see Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Chenier v. Richard W., 82 N.Y.2d 830, 832 [1993]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]; Application of a Child with a Disability, Appeal No. 07-139).  In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 05-058; Application of a Child with a Disability, Appeal No. 04-027; Application of a Child with a Disability, Appeal No. 00-037; Application of the Bd. of Educ., Appeal No. 00-016; Application of a Child with a Disability, Appeal No. 96-37).  Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).  However, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040; Application of a Child with a Disability, Appeal No. 04-038).

The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]).  It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88; Application of a Child with a Disability, Appeal No. 07-139).  Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; see Hearst Corp., 50 N.Y.2d at 714-15; Application of a Child with a Disability, Appeal No. 07-139).  To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ., 260 F.3d 114, 120 [2d Cir. 2001]; Application of a Child with a Disability, Appeal No. 07-139).  Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; Application of a Child with a Disability, Appeal No. 07-139).  Mootness may be raised at any stage of litigation (In re Kurtzman, 194 F.3d 54, 58 [2d Cir. 1999]; Application of a Child with a Disability, Appeal No. 07-139).[9]

In this instance, the question of whether the parent's privately-obtained, home-based SETSS were appropriate to meet the student's needs and whether the parent was therefore entitled to be reimbursed for the costs of those services has become moot.  Here, the student has graduated from high school in June 2024, the parent's attorney confirmed at the impartial hearing that the home-based SETSS had been fully paid for through pendency, and neither party alleges on appeal that the pendency order was not implemented, either through the failure to fully deliver SETSS or through the failure to fully pay for those services (see generally Req. for Rev.; Answer & Cr. App.; Answer to Cr. App.).  As such, the parent has received all of the relief requested for the district's alleged failure to implement the home-based SETSS recommended in the January 2023 IEP during the 12-month, 2023-24 school year, and the district's alleged failure to recommend home-based SETSS in the January 2024 IEP.  Therefore, there is no need to further examine the appropriateness of the privately-obtained, home-based SETSS or reimbursement thereof, as no meaningful relief can be ordered at this juncture (see Beckford v. Aviles-Ramos, 2025 WL 2781539, at *4 [S.D.N.Y. Sept. 30, 2025] [finding parent's claim for tuition and related services was moot because defendant had already paid the tuition and related services expenses required by the IHO's decision, and noting that the 'hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed']).

B. Compensatory Education

While the question of whether the privately-obtained SETSS were appropriate is no longer live, the question of whether the student was entitled to compensatory educational services remains at issue.  Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).[10]

In the decision, the IHO noted that although the student was entitled to compensatory educational services for the district's failure to offer a FAPE for one year, the hearing record did not support any award (see IHO Decision at p. 29).  The IHO indicated that the hearing record lacked "testimony regarding how the hours requested were to be utilized and apportioned going forward and how the bank of hours would assist the student in receiving the benefit he should have if the [district] had provided a FAPE" (id.).  According to the parent, the IHO's rationale improperly shifted the burden of proof to the parent with respect to her request for 105 hours of compensatory tutoring services, because there was no authority requiring the parent to establish how the compensatory educational services would be used or apportioned going forward.

With regard to the burden of proof, the undersigned has many times indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district in an administrative due process proceeding, and I note that no Court or other authoritative body in this jurisdiction has addressed the topic to date (Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050).  Where the parent seeks relief in the form of compensatory education to be provided by parentally-selected private special education companies or providers, I find it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief.  In most cases, the district, as the party responsible for implementing special education services in the first place, should be directed to carry out the remedial relief in the form of compensatory education ordered by an administrative hearing officer.  But district-provided services is not what the parent seeks. Therefore, contrary to the parent's argument, she was required to present evidence sufficient to support her request for compensatory educational services.  Given the circumstances of this matter, and as explained more fully below, the hearing record does not contain sufficient evidence upon which to award compensatory educational services.

Next, the parent asserts that the student was entitled to 105 hours of compensatory tutoring services as a remedy for the district's failure to recommend a 15:1 special class placement in the January 2024 IEP as support for the student in ELA.  The parent contends that the evidence demonstrates that the student regressed in reading and writing without the support of the 15:1 special class for ELA and the only special education support he received after the development of the January 2024 IEP was through the home-based SETSS.

At the impartial hearing, the SETSS provider who appeared as a witness for the parent testified that, absent special education support in ELA from January 2024 through June 2024, she "noticed significant regression" in the student's reading and writing skills (Parent Ex. R ¶ 18).[11]  According to the SETSS provider, the student required "daily practice in a special education ELA setting" and without it, he became "even more frustrated with and resistant to writing over the course of the semester" (id.).[12]  The SETSS provider also testified that the student continued to "struggle with reading fluency and comprehension" (id.).[13]

In order to make up for the absence of special education support in ELA, the SETSS provider recommended that the student receive compensatory tutoring of "one hour of make-up services for each period … missed," from January 2024 through June 2024, which, according to the provider, equated to 5 hours per week for 21 weeks or a total of 105 hours of compensatory tutoring (see Parent Ex. R ¶ 19).  The SETSS provider explained that the tutoring services would place the student in the position he would have been in for reading and writing had he received the appropriate instruction and that she, herself, would be available to deliver the compensatory educational services to the student, if the IHO awarded the relief (id. ¶¶ 19-20).  During cross-examination, the SETSS provider testified that the student passed all of his classes during the 2023-24 school year (see Tr. pp. 157-58).

In her direct testimony, the parent testified that, as a result of removing the special education support in ELA from the student's IEP, she noticed that the student "grew even more frustrated with tasks involving reading and writing" (Parent Ex. Q ¶ 19).  She also testified that the student "appeared to regress with respect to his reading fluency and comprehension, and his writing was more labored" (id.).  When cross-examined, the parent testified that during the 2023-24 school year, she had concerns about the student's progress in several areas, including in reading and writing and the home-based SETSS addressed those concerns (see Tr. p. 167).

While State regulations do not define regression, "substantial regression" is defined in State regulation as a "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year" (8 NYCRR 200.1[aaa]).  State guidance indicates that "an inordinate period of review" is considered to be a "period of eight weeks or more upon return to school" (see "Extended School Year Programs and Services Questions and Answers," at p. 3, Office of Special Educ. [Updated Sept. 2024], available at https://www.nysed.gov/special-education/extended-school-year-programs-and-services-questions-and-answers).

Here, the SETSS provider and the parent both testified that the student regressed in reading and writing because he no longer received special education support in ELA; however, those statements, without more, are not sufficient to demonstrate that the student lost skills or knowledge.  Instead, the evidence in the hearing record demonstrates that the student passed all of his classes during the 2023-24 school year and that he graduated—with a Regents diploma—in June 2024.  Generally, it is well settled that a student's graduation and receipt of a high school diploma is considered to be evidence of educational benefit (see Pascoe v. Washington Cent. Sch. Dist., 1998 WL 684583, at *4, *6 [S.D.N.Y. Sept. 29, 1998]; see also Rowley, 458 U.S. at 207 n.28; Walczak, 142 F.3d at 130), the receipt of which terminates a student's entitlement to a FAPE (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; 200.4[i]).  It is a rare case where a student will graduate with a high school diploma and yet still qualify for an award of further compensatory educational services thereafter (see, e.g., Application of a Student with a Disability, Appeal No. 19-116; Application of the Bd. of Educ., Appeal No. 18-081; Application of the Bd. of Educ., Appeal No. 17-081; Application of a Student with a Disability, Appeal No. 16-079; Application of a Student with a Disability, Appeal No. 13-215; Application of a Student with a Disability, Appeal No. 13-110; Application of a Student with a Disability, Appeal No. 11-159).

Furthermore, this is not an instance in which the IHO found that there was a gross violation of the IDEA, nor do I find a basis for reaching that conclusion upon review (Perez v. Banks, 2025 WL 3044460, at *3 [2d Cir. Oct. 31, 2025] [explaining that a student was not entitled to compensatory relief because the denial of a FAPE was not a gross violation of the IDEA]).  For these reasons, the evidence in the hearing record supports the IHO's finding that the student was not entitled to 105 hours of compensatory educational services.  Additionally, the same rationale applies to the extent that the parent argues that the student was entitled to compensatory educational services for the related services (OT, PT, and speech-language therapy) that were not delivered during summer 2023.

VI. Conclusion

Having found that the issue concerning the appropriateness of the student's SETSS delivered during the 2023-24 school year has now become moot, and alternatively, that the evidence in the hearing record supports the IHO's findings that the student was not entitled to compensatory educational services, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.