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 district) appeals from a decision of an impartial hearing officer (IHO) which found the district failed to offer the student equitable services and awarded direct funding for the student's privately obtained services provided by LAR Learning, LLC (LAR Learning) and by Strivright for the 2023-24 school year.  The appeal must be sustained in part.

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 will not be recited here in detail.

On February 7, 2023, a CSE convened, determined that the student was eligible to receive special education as a student with a learning disability, and developed an IESP for the student with a projected implementation date of February 28, 2023 (Parent Ex. Q at pp. 1, 11, 14).[1]  The February 2023 CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS), two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual speech-language therapy (id. at p. 11).[2]

On May 7, 2023, the parent provided the district with notice that she was placing the student in a nonpublic school at her own expense and was seeking the provision of the student's special education and related services from the district at the nonpublic school during the 2023-24 school year (Parent Ex. I).  On August 26, 2023, the district issued an authorization for independent special education teacher services for a parentally placed student, which the parent signed on September 6, 2023 (Parent Ex. H).  On September 26, 2023, the parent signed a contract with Strivright for the provision of speech-language therapy for the student for the 2023-24 school year (Parent Ex. C at pp. 1-3).  On November 13, 2023, the parent signed a contract with LAR Learning for the provision of SETSS for the student for the 2023-24 school year (Parent Ex. J at pp. 1-3).[3]

On March 6, 2024, a CSE convened to develop an IESP for the student with a projected implementation date of March 20, 2024 (Parent Ex. B at pp. 1, 7-8, 10).  Finding the student remained eligible for special education and related services as a student with a learning disability, the March 2024 CSE recommended that the student receive three periods per week of direct group SETSS, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of group speech-language therapy (id. at pp. 1, 7-8).  By prior written notice dated March 6, 2024, the district summarized the recommendations of the March 2024 CSE (Parent Ex. E at pp. 1-2).  During the 2023-24 school year, Strivright provided the student with speech-language therapy and LAR Learning provided the student with SETSS (see Parent Exs. G; K; L; M; N).

A. Due Process Complaint Notice

In a due process complaint notice dated June 17, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  The parent asserted that the last program developed for the student was the March 2024 IESP, which recommended the student receive three periods per week of SETSS, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of group speech-language therapy.  The parent alleged that she was not able to locate providers to work with the student at the district's standard rates for the 2023-24 school year and that the district "did not provide any" (id.).  The parent claimed that she located providers who were willing to provide the student with all required services for the 2023-24 school year, however, at rates higher than standard district rates (id.).  As relief, the parent requested a pendency hearing and an award of pendency, an impartial hearing and an "[a]llowance of funding for payment to the student's special education teacher provider/agency for the provision of 3 sessions per week of special education teacher at an enhanced rate for the entire 2023-2024 school year" and an award of "all related services and aides on the IESP for the entire 2023-2024 school year" and "related services authorizations for such services if accepted by the parent's chosen providers" or "direct funding to each of the parent's chosen providers at the rate each charges, even if higher than the standard [district] rate for such service" (id. at p. 2).

In a due process response the district notified the parent of its intended applicable defenses and that it requested that the parent be ordered to appear at the next hearing (Parent Ex. D 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 September 24, 2024 (Tr. pp. 1-74).[4]^, [5]  In a decision dated March 5, 2025, the IHO initially determined that the student was entitled to pendency as a matter of law, and held that the March 6, 2024 IESP was the student's "then current placement" for the 2023-24 school year as of the date of the parent's filing of the due process complaint notice on June 17, 2024 (id. at pp. 6, 8).  The IHO stated that the issue of OT "was withdrawn in [his] case, and therefore [wa]s not a question before [him]" (id. at pp. 4, 8).  Next, the IHO found that the district failed to implement the recommended program which constituted a denial of a FAPE to the student for the 2023-24 school year (IHO Decision at p. 10).

Turning to "relief for the denial of a FAPE on an equitable basis," the IHO stated that the parent's entitlement to funding for privately obtained services rested on whether the evidence "showed that the SETSS providers' rates [we]re reasonable and appropriate under the circumstances" (IHO Decision at pp. 10-11).  The IHO then considered seven factors to determine the reasonableness of the parent's requested SETSS rate (id. at p. 11).  The IHO also stated that "[i]n deciding the ultimate remedy … [he was] mindful that regardless of any deficiencies in the [p]arent's justification for a particular rate paid to a provider, the [district] remained obligated to implement or fund the services, as holding otherwise would countenance the denial of FAPE on an equitable basis" (id. at pp. 11-12).  With regard to the parent's requested rate of $250 per hour for speech-language therapy, the IHO found "there [wa]s no evidence in the record describing how [Strivright] calculated that rate, including how much was paid to the [speech-language therapy p]rovider or what other costs and expenses were factored into the rate" (id. at p. 12).  As for the $225 per hour rate requested for SETSS, the IHO found that there was no evidence of how the rate was calculated and, as a result, he could not "determine that it was properly calculated (id.).  The IHO then determined that the parent's requested rates should be reduced due to a lack of supporting evidence (id. at pp. 12-13).

As factors to consider in determining whether the parent's requested rates were reasonable, the IHO reviewed the qualifications of the providers, the parent's financial obligation for the private services, whether the providers' "approach" addressed the student's specific needs, the degree to which the providers "adhered to or deviated from the recommended program," the parent's efforts in attempting to find other providers before engaging providers at higher rates, and whether the parent provided notice to the district of her request for "enhanced rate services" (IHO Decision at pp. 13-16).  The IHO found that the parent's providers were appropriately qualified, and that the parent had a financial obligation to Strivright and to LAR Learning (id. at pp. 13-14).  The IHO then determined that the SETSS provided by LAR Learning did not constitute specially designed instruction for the student, but the speech-language therapy provided by Strivright appropriately addressed the student's needs (id. at pp. 14-15).  The IHO next found that neither the SETSS provider nor the speech-language therapy provider deviated from the recommendations in the February 2023 or March 2024 IESPs (id. at pp. 15-16).

The IHO then determined that the parent had not sufficiently demonstrated that she contacted other providers prior to engaging Strivright and LAR Learning (IHO Decision at p. 16).  Lastly, the IHO found that the parent had provided the district with a request for equitable services on or before June 1, 2023 and, thus, had provided the district with adequate notice (id.).

Turning to relief based on his analysis of the factors he set out for determining the reasonableness of the providers' rates, the IHO found that the parent was entitled to "an enhanced rate," however, the IHO reduced the requested rate for SETSS to $125 per hour from September 6, 2023 through November 12, 2023 and to $135 per hour from November 13, 2023 through June 30, 2024 (IHO Decision at pp. 16-18).  The IHO also reduced the requested rate for speech-language therapy to $187.50 per hour for the entirety of the 10-month 2023-24 school year (id. at pp. 17, 18).

IV. Appeal for State-Level Review

The district appeals and alleges that the IHO erred in failing to apply a Burlington/Carter analysis to the parent's claims.  The district argues that the IHO should have found that the parent did not meet her burden of proving that the SETSS provided by LAR Learning and the speech-language therapy provided by Strivright were appropriate for the student, based on the lack of progress reports, methodologies utilized, or how the providers were working with the student's general education teacher.  Further, the district requests that the parent's OT services claim be dismissed with prejudice or in the alternative, the district requests a finding that the parent did not meet her burden to demonstrate the appropriateness of her unilaterally obtained OT services.  The district requests that the parent's claim for OT services be dismissed with prejudice, a finding that the parent did not meet her burden to demonstrate the appropriateness of her unilaterally obtained speech-language therapy and SETSS, and that the IHO's award of funding be reversed.  With regard to the parent's OT services claim, the district has offers six documents on appeal and requests that they be considered as additional evidence.[6]

In an answer, the parent responds with general denials of the allegations raised in the request for review.  The parent asserts that the IHO correctly permitted the parent to withdraw her claim for OT services and that the IHO's allowance of withdrawal should not be disturbed.  Next, the parent argues that the IHO did not err in finding that the parent was entitled to funding for SETSS and speech-language therapy provided to the student for the 2023-24 school year.  The parent also alleges that the district's request for review should be dismissed for failure to comply with the practice regulations.

In a reply, the district asserts that the parent's answer should be dismissed for failure to comply with the practice regulations and argues that the request for review should not be dismissed.[7]

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]).[8]  "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.).[9]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. Scope of Review

The IHO noted that the parent's attorney advised, in her closing statement, that the parent was "not requesting any award [of] occupational therapy as [there was] no information about the occupational therapy other than the fact that it was delivered" (Tr. p. 65; see IHO Decision at p. 3).  The IHO further noted that, after the impartial hearing had concluded, the parent's attorney requested a post-hearing conference on the issue of OT services (IHO Decision at p. 3).  The IHO surmised that the parent's request was due to another proceeding (IHO Case number 288431) having been dismissed with prejudice on res judicata grounds, and that the other IHO had apparently relied on the due process complaint notice in this matter, notwithstanding that there had not yet been a determination on OT (id. at p. 3).  The IHO noted the district's objection to the request for a post-hearing conference and ultimately denied the parent's request stating he could not and would not "pass judgment on the propriety of the determination of another IHO; moreover, it [wa]s enough for [him] here to find that [he was] without jurisdiction to pass on OT, which was withdrawn in [his] case, and therefore it [wa]s not a question before [him]" (id. at pp. 3-4).

The district asserts that the IHO erred in finding that the parent withdrew her claim for funding for unilaterally obtained OT services and argues that it was not permissible for the parent to withdraw her claim for OT services after she had presented evidence in support of her claim.  Instead, the district contends, the IHO should have either found the parent's request was untimely or found the parent did not meet her burden to demonstrate the appropriateness of her unilaterally obtained OT services, and dismissed the parent's request for funding of OT services with prejudice.  The parent argues that the IHO correctly permitted the parent to withdraw her claim for OT services and that the IHO's allowance of withdrawal should not be disturbed.

One day after the IHO issued his decision in this matter, the parent filed a notice of intention to seek review of the decision rendered in IHO Case number 288431.  Subsequently, the parent filed a request for review in that matter and, in an email dated April 29, 2025, the parent withdrew her appeal, which request was subsequently filed with the Office of State Review on May 5, 2025.  As a result of the withdrawal of the parent's request for review in Application of a Student with a Disability, Appeal No. 25-160, the IHO's decision in IHO Case number 288431 has become final and binding on the parties (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]).  Thus, the IHO's findings that the parent's claim for funding of her unilaterally obtained OT services for the 2023-24 school year was barred by the doctrine of res judicata and the IHO's dismissal of the November 15, 2024 due process complaint with prejudice are final and binding on the parties.

In addition, the district has not appealed from the IHO's determination that it failed to offer the student a FAPE for the 2023-24 school year, or from the IHO's determination that the student was entitled to pendency from June 17, 2024 through the conclusion of the proceedings.  Therefore, these findings are 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]).

B. Legal Standard and Unilaterally Obtained Services

Next, a discussion of the IHO's analysis of the parent's claims is warranted.  In this matter the IHO examined the facts and circumstances of the matter, noting that "the [p]arent's evidence must be scrutinized, consistent with [the IHO's] obligation and equitable authority to ensure that the remedy 'be appropriate in light of the purpose of the Act' … [and t]he evidence therefore must show that the SETSS providers' rates [we]re reasonable and appropriate under the circumstances"  (IHO Decision at p. 11).  The IHO considered seven factors related to the reasonableness of the providers' rates and determined that the parent was entitled to funding for her unilaterally obtained services at rates lower than her requested relief (id. at pp. 11-17).

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement for the cost of the student's attendance there.  The parent alleged that she unilaterally obtained SETSS from LAR Learning and speech-language therapy from Strivright for the student and then commenced due process to obtain remuneration for the services provided by LAR Learning and Strivright.  Accordingly, the issue in this matter is whether the SETSS and speech-language therapy obtained by the parent, as a self-help remedy, constituted appropriate unilaterally obtained services for the student such that the cost is reimbursable to the parent or, alternatively, should be directly paid by the district to LAR Learning and Strivright upon proof that the parent has paid for the services or is legally obligated to pay but does not have adequate funds to do so.

Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for privately obtained special education services for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  "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"]).

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

As for review of the appropriateness of the unilaterally obtained services, the federal standard 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, 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).

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  The aforementioned are generally considered to be the factors of the "appropriateness" standard—or prong II—under the Burlington/Carter analysis, which when applied to the instant matter, leads to a determination of whether the SETSS LAR Learning delivered and the speech-language therapy Strivright delivered to the student met her needs.  To conduct this analysis, it is initially necessary to describe the student's needs, and thereafter, to review the instruction delivered to the student to determine if the methods and strategies used constitute specially designed instruction.  Contrary to the IHO's findings, it is well settled that a parent need not engage the services of a certified special education teacher—or, as here, a SETSS provider—in order to qualify for reimbursement or direct funding of those services.  In addition, the seven factors considered by the IHO conflate the appropriateness of the parent's unilaterally obtained services with equitable considerations.

The Second Circuit Court of Appeals has held, it is error for an IHO to apply the Burlington/Carter test by conducting reimbursement calculations that are based on the IHO's analysis of the appropriateness of the unilateral placement (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]).  The Court further reasoned that "once parents pass the first two prongs of the Burlington-Carter test, the Supreme Court's language in Forest Grove, stating that the court retains discretion to 'reduce the amount of a reimbursement award if the equities so warrant,' suggests a presumption of a full reimbursement award" (A.P., 2024 WL 763386 at *2 quoting Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 [2009]).  Thus, the IHO erred in considering issues related to the appropriateness of the unilaterally obtained SETSS and speech-language therapy, and issues related to equitable considerations in a discussion of the reasonableness of the parent's requested rates.

Turning to the appropriate analysis, although the student's needs are not in dispute, a brief discussion thereof provides context to determine whether the parent's unilaterally obtained SETSS and speech-language therapy were appropriate to address those needs.  The hearing record does not include formal evaluation or assessment reports, however, the February 2023 IESP indicated the CSE considered results of an undated Wechsler Abbreviated Scale of Intelligence-Second Edition (WASI-II) and an undated Wechsler Individual Achievement Test-Third Edition (see Tr. pp. 1-74; Parent Ex. Q at pp. 1-4).[10]  Administration of the WASI-II yielded scale composite scores for verbal comprehension (114/"High Average"), perceptual reasoning (127/"Very High"), and full scale composite score (123/"Very High") (Parent Ex. Q at p. 1).  Administration of the WIAT, per the February 2023 IESP, yielded subtest standard scores for word reading (97)/"Average"), reading comprehension (116/"High Average"), spelling (82/"Low Average"), pseudoword decoding (89/"Low Average"), numerical operations (109/"Average"), and math problem solving (96/"Average") (id.). 

The February 2023 IESP's present levels of performance included assessment reporting that the student seemed to become nervous when asked to read aloud which caused her to make careless errors, but with reminders to take her time, she could self-correct and read the words appropriately (id. at pp. 1-2).  The February 2023 IESP indicated that overall, the student's reading ability fell within the average range with strength shown in her reading comprehension (id. at pp. 1-3).  Regarding math abilities, assessment reporting, included in the February 2023 IESP, indicated that the student was able to add and subtract single and multi-digit numbers, multiply and divide, round numbers, and simplify fractions and with respect to problem solving and word problems the student was able to complete basic addition, subtraction, multiplication, and division problems (Parent Ex. Q at p. 2).  In spelling, the student earned a standard score in the low average range (id.).[11]

The February 2023 IESP's present levels of performance included provider reporting that the student struggled with staying focused on task, completing her assignment in the allotted time, completing multi-step math problems and word problems, completing an essay as she required support and guidance, writing complete sentences as she often used run-on sentences to express her thoughts, making test to text connections when comparing two pieces of literature, preparing written summaries and applying grammar skills (Parent Ex. Q at p. 2).  According to provider reporting, the student enjoyed reading and demonstrated a strength in decoding words, yet it was noted that her comprehension of text was affected when she read too quickly as she often added or skipped words she read, which could cause the story to lose some of its essence (id.).  The student's imagination presented itself in her writing as she used many details in her writing and used grade-appropriate adjectives (id.).  Regarding her language skills, the student's strengths included orally summarizing a text that was read and making text-to-self connections (id.).  The February 2023 IESP also stated that the student demonstrated a strength in her computation skills as she was able to add, subtract, multiply, and divide numbers with ease (id. at p. 3).

With regard to speech-language abilities, the February 2023 IESP described the student as a bright girl who presented with weak executive function skills characterized by poor organization of personal space and materials and weak working memory, planning, organizing, managing, and "self-monitoring time" (Parent Ex. Q at p. 2).  At that time, the student was receiving speech-language therapy two times per week to address "current delays" (id. at p. 3).  She had received a diagnosis of attention deficit hyperactivity disorder (ADHD) (combined type) (id. at pp. 2-3).  According to the IESP, the student exhibited poor visual memory and graphomotor skills characterized by slow handwriting, inconsistent letter/word spacing, and excessive erasing (id. at p. 3).[12]  She struggled with taking notes in class, completing written homework, and completing long-term assignments and difficulty with transcription got in the way of her organizing and expressing ideas on paper (id.).  The IESP also noted that the student had a large gap between expressing written and spoken ideas (id.).

The February 2023 IESP indicated the student showed strength in her determination and motivation to learn (Parent Ex. Q at p. 3).  The IESP noted the student would benefit from continued support and that it was recommended that the student continue receiving the related service to offer her more opportunities for guided practice with individual cueing and feedback, to solidify progress made to date, and to facilitate development of age-appropriate language skills (id.).

Socially, the February 2023 IESP included student reporting that her favorite subjects were reading, writing, English language arts (ELA), and history; her least favorite subject was bible studies; and "math [wa]s okay, sometimes it [wa]s hard and sometimes it [wa]s easy" (Parent Ex. Q at p. 4).  The February 2023 IESP stated that the student was a well-adjusted youngster with age-appropriate interests who struggled with frustration tolerance due to her poor organizational skills (id.).  The IESP also stated that the student expressed a positive relationship with her parents and siblings and got along with her peers and was respectful toward her teachers (id.).

With regard to the student's physical needs, the February 2023 IESP indicated the student continued to present with executive function delays as well as decreased sensory processing skills, which greatly affected her function both in and out of the classroom, including classwork and peer interaction (Parent Ex. Q at p. 5).  Organization of space and thought was an ongoing challenge for her (id.).  In addition, writing continued to be a challenge for the student, specifically in the areas of letter formation and line adherence, and it was reported that the student found the writing task laborious and overwhelming (id.).  The IESP indicated that much of this stemmed from the student's impulsivity and difficulty with task execution rather than her visual perception skills (id.).  Further, the IESP stated that the student had a decreased awareness of others in her environment and that it could be difficult for her to understand how her behavior and actions affected those around her (id.).  It was recommended that the student continue receiving OT (id.).

With regard to management needs, the February 2023 IESP indicated the student needed to repeat or paraphrase directions to verify understanding and needed small group instruction, use of a number line to assist in calculations, a multi-sensory approach to decoding, post it notes to write down key ideas as she read, use of rubrics to assist in the writing process, verbal and visual prompts, and preferential seating (Parent Ex. Q at p. 6).

With respect to the effect of the student's needs on involvement and progress in the general education curriculum, the February 2023 IESP indicated that the student's learning disability manifested as language and academic deficits (Parent Ex. Q at p. 6).  With regard to speech-language abilities, the student had weak expressive language skills, concerns that would be addressed with speech-language therapy (id.).  The IESP indicated, "[s]pecial education teacher support services w[ould] continue to provide the student with reinforcement of concepts she struggle[d] with" (id.).  In addition, the February 2023 IESP noted that it was important for the student to be in the general education classroom to learn content firsthand and gain academic independence to the maximum extent possible (id.).

Turning to the services delivered to the student during the 2023-24 school year, although the hearing record did not explain why the parent did not sign the contract with LAR Learning until November 13, 2023, the hearing record indicates that the student received SETSS from September 6, 2023 through June 3, 2024 (Parent Ex. K at pp. 1-10).  The hearing record also includes session notes from September 6, 2023 through June 4, 2024 (Parent Ex. L at pp. 1-12).

A November 12, 2023 SETSS progress report identified the student's strengths and weaknesses in the areas of math; writing; and reading; and included annual goals in each area (Parent Ex. M at pp. 1-3).  The November 2023 SETSS progress report did not include details explaining the specialized instruction used to address the student's areas of weakness (id.).

A May 6, 2024 SETSS progress report stated that the student was an eighth-grade student, then-currently "on grade level 7" for math and reading and "grade level 6" for writing (Parent Ex. N at p. 1).  The progress report indicated that the student struggled with problem solving involving scale drawings of geometric figures and applying formulas for the area and circumference of a circle, organizing reasons and evidence to support claims in written work, and using prepared materials to contribute to discussions (id.).  The progress report included "SMART goals" to address the identified weaknesses (id. at pp. 1-2).  The May 2024 progress report also included a statement that the student tended to give up easily when faced with challenging tasks that required focus and persistence and that it was important that services continued so that she could receive additional support to improve her academic skills and reach grade level expectations in all subjects (id. at p. 2).  Similar to the November 2023 SETSS progress report, the May 2024 progress report did not include information explaining the individualized or specialized instruction provided to the student (id. at pp. 1-2).

The 2023-24 session notes identified the math concepts on which the provider worked with the student during each session (e.g., polynomials, linear equations, geometry concepts, understanding functions) (Parent Ex. L).  The session notes included statements of student progress in the above identified areas (id.)  It is notable that the session notes contained repetitive phrases referencing the student's work with math and mathematical concepts but did not include how the instruction was specialized to address the student's needs (id.).  Documentation related to the student's work in the areas of literacy and language was only contained within one entry (id. at p. 12).[13]

With regard to the speech-language therapy provided by Strivright, the affidavit testimony of the director of services of Strivright (director) focused on a general description of the agency, the name and licensure of the provider who delivered the student's services, a general statement that the agency provided the student with two 30-minute periods per week of services, and the rate the agency charged, $250 per hour, for speech-language therapy services rendered to the student during the 2023-24 school year (id. ¶¶ 1-8).

The hearing record also included a speech-language therapy progress report dated May 27, 2024 (Parent Exs. G at pp. 1-3).  The May 2024 speech-language therapy progress report noted that the student was attending a general education eighth grade class at her nonpublic school and the report included information about the student's goals in the areas of writing, expressive language, and executive functioning skills, as well as her progress up to the time of the report (see Parent Ex. G).  The student had mastered one goal that addressed her ability to orally tell stories that coherently supported a topic with relevant details, descriptive language, and catchy vocabulary (id. at p. 2).  For two other goals, one which addressed multiple skills needed for written narratives commensurate with grade level, and the other goal which addressed multiple executive functioning skills, the student required "minimal assistance" (id. at pp. 1-2).  The provider indicated in the speech-language progress report that the student benefited from individualized accommodations such as notes provided instead of class note taking and extended time on tests (id. at p. 1).

The May 2024 speech-language progress report further noted that the student made progress in meeting her IESP goals as was revealed by informal assessment, which involved examining samples of her written work, analyzing language samples, and using observational checklists (Parent Ex. G at p. 2).  Sustaining mental effort to complete her work improved as evidenced by the student being able to initiate her work without reminders and complete it without distractions (id.).  The student showed marked improvement in her ability to grasp meaning from academic reading material and connect new concepts to what she already knew (id.).  Her ability to understand and respond to factual, inferential, and predictive questions about instructional level texts improved to "8/10 trials" (id.).  Similarly, determining main ideas/supporting details, answering higher-order thinking questions, and constructing meaning from what she was reading improved considerably (id.).  The student improved in her ability to articulate stronger opinions with creative and compelling arguments through regular discussions on various topics (id.).  In terms of written communication, the student showed significant improvement to write structurally correct essays (id.).

The student's speech-language pathologist focused on reinforcing proper essay format, including consistent indentation, capitalization, and the correct use of punctuation (Parent Ex. G at p. 2).  This improvement was achieved through a combination of explicit instruction, modeling, and regular feedback on written assignments (id.).  The student made "remarkable" improvement in her writing abilities (id.).  She generated creative ideas and articulated opinions with ease (id.).   She effectively supported her arguments with logical reasoning, maintained coherence with grade-appropriate complexity, and used a broad vocabulary (id.).  She continued showing reluctance in revising and editing her written work (id.).  The student's organizational skills had also shown improvement (id.).  She demonstrated better time management, task prioritization, and resource management (id.).

The speech-language progress report further noted that in consideration of the student's progress, it was recommended to transition her speech-language therapy to a maintenance phase, reducing sessions to once per week for 30 minutes each, with the possibility of further reducing frequency to once a month (Parent Ex. G at p. 2).  According to the report, this would provide continued support for guided practice, personalized cueing, and feedback, reinforcing the progress she had already made while promoting the development of age-appropriate language skills (id.). The report included new recommended goals (id.).

As stated above, the Burlington-Carter framework requires the parent to prove that the services she unilaterally obtained for the student constituted specially designed instruction designed to address her unique educational needs.  While the hearing record includes progress reports and session notes, as noted above, the SETSS progress reports did not describe specially designed instruction delivered to the student and, in addition, there is no information regarding the curriculum at the student's nonpublic school or the instruction the student received from her nonpublic school outside of the SETSS provided by LAR Learning and the speech-language therapy provided by Strivright.  In this instance, without such information, it is not possible to ascertain whether the student received special education support in the classroom to enable her to access the general education curriculum or whether the SETSS delivered to her, even if provided in a separate location, supported her classroom functioning (see L.K. v. Northeast Sch. Dist., 932 F. Supp. 2d 467, 491 [S.D.N.Y. 2013] [in reviewing the appropriateness of a unilateral placement, courts prefer objective evidence over anecdotal evidence]).  Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students, the evidence in the hearing record is, overall, insufficient to demonstrate that the student's program was appropriate to meet her needs.

Therefore, considering the totality of the circumstances, the parent failed to meet her burden of proving that the unilateral services provided by LAR Learning and Strivright were appropriate for the student (see, e.g., Application of a Student with a Disability, Appeal No. 25-018 [finding that the parent failed to prove the appropriateness of unilaterally obtained services, despite evidence that those services addressed the student's identified areas of weakness, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of the Student with a Disability, Appeal No. 24-645 [finding that the parent failed to prove the appropriateness of unilaterally obtained services, despite some evidence of the modalities, strategies, and materials used to assist the student, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]; Application of a Student with a Disability, Appeal No. 24-436 [finding that the parent failed to prove the appropriateness of unilaterally obtained services, although the student's private providers reported progress, where the hearing record lacked information regarding the curriculum at the student's general education nonpublic school or the instruction the student received there]).

VII. Conclusion

Having found that the parent failed to prove the appropriateness of the services she unilaterally obtained from LAR Learning and Strivright for the 2023-24 school year, the necessary inquiry is at an end, and I need not reach the issue of whether equitable considerations support the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

I have considered the parties' remaining contentions and find that the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated March 5, 2025, is modified by reversing those portions which found that the parent was entitled to funding for her unilaterally obtained SETSS and speech-language therapy.