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, in part, her request that respondent (the district) directly fund the costs of her daughter's special education teacher support services (SETSS) delivered by Premium Education LLC (Premium Education) at a specified rate for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which found that the parent's unilaterally-obtained services from Premium Education were appropriate.  The appeal must be dismissed.  The cross-appeal must be sustained.

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 hearing record is sparse regarding the student's educational history.  Briefly, at the time of the filing of the due process complaint notice, the student was 10 years old and was in sixth grade (Parent Ex. E at p. 1; Dist. Ex. 3 at p. 2).  On November 9, 2023, the CSE convened, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of  November 27, 2023 (Dist. Ex. 3).[1]  The November 2023 CSE recommended that the student receive three periods per week of group SETSS and two 30-minute sessions per week of group speech-language therapy (id. at p. 7).[2]  The November 2023 IESP noted that the student was parentally placed in a nonpublic school (id. at p. 10).  The district provided the parent with prior written notice of the November 2023 CSE's recommendations by letter dated November 30, 2023 (see Dist. Ex. 4).

On February 8, 2024, the parent electronically signed a parent service contract with Premium Education for the agency to provide the student with three weekly sessions of group SETSS at the rate of $195 per hour (Parent Ex. C).[3]

A. Due Process Complaint Notice

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A).  The parent alleged that she was unable to locate SETSS and related service providers, and that the district failed to implement the recommendations from the September 11, 2023 IESP (id. at p. 2).[4]  The parent sought an order for the district to fund the providers located by the parent for the 2023-24 school year at the providers' contracted for rates (id. at p. 3).  The parent further reserved the right to seek compensatory education services for any services not provided during the 2023-24 school year and sought an order directing the district to fund "compensatory periods of SETSS and related services for the entire 2023-24 school year – or the parts of which were not serviced . . . at the prospective provider's contracted rate" (id.).

In response to the due process complaint notice, the district generally denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and attached a copy of the November 30, 2023 prior written notice (see Dist. Response to Due Proc. Compl. Not.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 6, 2025 (Tr. pp. 1-23).[5]  The district made a motion to dismiss based on a lack of subject matter jurisdiction, which the IHO orally denied on the hearing record (Tr. pp. 3-5).  In a written decision, dated March 7, 2025, the IHO found that the district failed to present evidence that it implemented the student's 2023 IESP, and therefore, denied the student a FAPE for the 2023-24 school year (IHO Decision at p. 4).[6]^, [7]

The IHO further found that the parent presented sufficient evidence of the student's deficits, interventions and methodologies used by the unilaterally obtained provider, and the student's progress to meet her burden to demonstrate that the services delivered by Premium Education were appropriate for the student (IHO Decision at pp. 4-5).  The IHO then discussed equitable considerations; specifically the rate requested by the parent of $195 per hour for the SETSS (id. at pp. 5-6).  Relying on the testimony of the education director of Premium Education, that the SETSS providers were paid between $62-$125 per hour and the district's assertion that a reasonable market rate was $125 per hour, the IHO reduced the rate requested by the parent to $125 per hour as a "reasonable and appropriate hourly rate" (id. at pp. 6-7).

Next, the IHO reviewed the parent's request for compensatory education services (IHO Decision at p. 7).  The IHO stated that the 2023 IESP recommended two 30-minute sessions per week of speech-language therapy, but the student did not receive these services during the 2023-24 school year (id.).  Accordingly, the IHO concluded "based on a quantitative approach" that the student was entitled to a compensatory bank of 36 hours of speech-language therapy for the 2023-24 school year at a reasonable market rate as determined by the district's implementation unit (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in reducing the rate for the SETSS.  The parent contends that the rate charged by Premium Education was not excessive and the IHO's reduction was made without any explanation.  Additionally, the parent objects to the consideration of the  American Institute for Research report (AIR report), which was submitted into evidence by the district and if relied upon, the parent argues that the AIR report supports a finding that the rate of $195 per hour is not excessive.  Accordingly, the parent seeks reimbursement/direct funding of the unilaterally obtained SETSS at a rate of $195 per hour for the 2023-24 school year.  Although the parent does not appeal the compensatory award, in her conclusion the parent stated that the 36 hours of speech-language therapy should be at the rate of $250 per hour.

The district interposed an answer and cross-appeal, generally denying the material allegations contained in the request for review.  The district first argues that the parent failed to meet her burden to prove that the unilaterally obtained services were appropriate.  In addition, the parent argues that there was no evidence of the specially designed instruction provided to the student and no evidence of progress.  Second, the district argues that equitable considerations warrant a denial of all requested relief but if awarded the reduced rate of $125 per hour should be upheld.  Lastly, the district argues that the IHO lacked subject matter jurisdiction to hear the parent's claims.

The parent did not submit an answer to the district's cross-appeal.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[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. Preliminary Matters

1. Subject Matter Jurisdiction

Initially, it is necessary to address the issue of subject matter jurisdiction raised by the district in its motion to dismiss (see Tr. pp. 3-5), and then reasserted in its answer and cross-appeal.  Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous somewhat recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment 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]).[10]

Concerning students who attend nonpublic schools, Education Law § 3602-c 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 section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[11]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.

After legislative amendments took effect in 2007 the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a few years ago.  In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[12]

In its answer and cross-appeal, the district contends that the Education Law does not provide a right  to bring a due process complaint for implementation of IESP claims or enhanced rate for services.  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[13]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 (2d Cir. 2009); quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought injunctive relief of a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7).    The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[14]  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

2. Scope of Review

Before addressing the merits, a determination must be made regarding which claims are properly before me on appeal.

Here, the district has not appealed from the IHO's findings that it denied the student a FAPE for the 2023-24 school year or the IHO's award of 36 hours of compensatory speech-language therapy for the 2023-24 school year.  Additionally, the parent does not appeal that part of the IHO's compensatory award that the provider of the compensatory speech-language therapy be paid a "reasonable market rate" to be determined by the district's "implementation unit" (see IHO Decision at p. 7).  Accordingly, the IHO's findings on these issues have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

B. Unilaterally Obtained Services

Turning to the services unilaterally obtained for the 2023-24 school year, in this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Premium Education for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[15]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 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).

1.Student's Needs

While not in dispute, it is necessary to consider the student's needs in order to determine whether the unilaterally-obtained SETSS provided to her by Premium Education were appropriate under the Burlington-Carter framework.

At the time of the November 2023 CSE meeting, the student was in sixth grade "attending a general education program" and receiving SETSS (Dist. Ex. 3 at p. 2).  Regarding the student's academic performance, the November 2023 IESP reported that the student's fall 2023 Northwest Evaluation Association (NWEA) scores were in the 22nd percentile (grade equivalent: 3.0) for math and the 45th percentile (grade equivalent: 5.8) in English language arts (ELA) (id. at p. 1).  The November 2023 IESP reflected progress report grades of 64 in ELA, 83 in math, 73 in science, 60 in social studies, and 90 in religion (id.).  In math, the student was reportedly "very attentive" and loved to participate, she completed her homework, and had "great" organizational skills (id. at p. 2).  According to the IESP, the student identified and solved single step word problems, added and subtracted single digit numbers, added fractions with like denominators and simplified the answer, added decimals with different amounts of numbers after the decimal point, multiplied single digit numbers and double-digit numbers, and performed basic division (id.).  She had difficulty multiplying mixed numbers and dividing numbers with a remainder, subtracting fractions with unlike denominators, and subtracting mixed numbers (id.).  The student also had difficulty determining what to do when given a word problem but when broken down for her, she could solve the problem (id.).

According to the November 2023 IESP, in ELA, the student analyzed the interactions between people, events, and ideas in a text, recognized symbols within a text, and drew conclusions as to what the author was describing (Dist. Ex. 3 at p. 2).  She determined the meaning of words and phrases as they were used in a text and analyzed the impact of a specific word choice on meaning and tone (id.).  She wrote sequentially and established and maintained a formal style of writing (id.).  The November 2023 IESP noted that the student required assistance with comparing and contrasting a fictional portrayal of a time, place, or character in historical fiction, and had difficulty analyzing how particular elements of a story or drama interacted with the characters (id.).  She also needed assistance using transitional words, phrases, and clauses (id.).  The student additionally needed to "work on" spelling to "bring it up to grade level" (id. at pp. 2-3).

In the area of social development, the November 2023 IESP noted that the student had appropriate social skills (Dist. Ex. 3 at p. 3).  She was described as "well-behaved" and respectful, followed classroom and school rules, was "very sociable" and talked to her friends, especially when she needed help, worked well in a group, and worked hard to answer questions (id.).  The student also had age-appropriate physical development (id.).

The November 2023 CSE recommended strategies to address the student's management needs that included repetition, redirection, simplification, additional time to complete tasks, small group instruction, graphic organizers, frequent review of newly taught skills, and visual aids (Dist. Ex. 3 at pp. 3-4).  The November 2023 IESP noted that the student's language and academic delays affected the student's ability to access the general education curriculum without support (id. at p. 4).

2. SETSS From Premium Education

Having reviewed the hearing record to identify the student's needs, the inquiry now turns to whether the parent's unilaterally-obtained SETSS from Premium Education during the 2023-24 school year provided the student with specially-designed instruction to address those needs.

Regarding the specially designed instruction provided to the student, the IHO found that the hearing record contained sufficient evidence to show that the SETSS provided by Premium Education addressed the student's special education needs (IHO Decision at p. 4).  The IHO noted that the special education progress report detailed the student's deficits, and the interventions and methodologies used by the provider (id.).  However, the district argues that the evidence in the hearing record only contained "general information" about the student's SETSS, and there was no evidence of how the instruction delivered was individualized to meet the student's needs.  Here, I agree with the district and find that the parent failed to meet her burden to show that the unilaterally obtained SETSS were appropriate.

A review of the June 24, 2024 special education progress report (SETSS progress report) noted the student's need for personalized reading, writing, and mathematics instruction, strong social connections to facilitate peer supported learning, proactive behavioral strategies, and use of differentiated instructional and assessment strategies (Parent Ex. E at p. 1).  The SETSS progress report recommended the use of personalized reading instruction, enhanced language support in ELA and writing, including the use of speech-to-text software, sentence starters, and graphic organizers for writing tasks, and focused math support including use of visual aids and manipulatives, mini lessons, and breakout sessions (id. at pp. 1-2).  The SETSS progress report also recommended behavioral and social/emotional strategies, including encouraging the student's participation in class, reinforcing her effort, and implementing a "buddy system" for peer support (id. at p. 2).  The SETSS progress report further recommended integration of technology through the use of educational applications tailored to address specific areas in reading and math, use of audiobooks, and digital texts to support reading comprehension (id.).  The SETSS progress report next recommended regular monitoring through scheduled "check-ins" with the student, and regular "collaboration meetings" between the SETSS provider and the student's classroom teachers to ensure strategies were "cohesive and effectively implemented" (id.).  The SETSS progress report lastly mentioned the use of differentiated instruction, including alternate forms of assessment, such as oral presentations and visual projects instead of tests, and providing instructions both verbally and in writing to ensure clarity and comprehension (id.).  The goals identified in the progress report included, "[e]nhanc[ing] reading skills to a more grade-appropriate level," improving proficiency in solving multistep word problems and calculations, and "[e]nhanc[ing]" writing skills to meet grade level standards (id. at p. 3).

While the SETSS progress report described strategies and goals that may have been aligned with the student's needs, it is not clear from the report that any of these supports were implemented with the student during the 2023-24 school year.  In his affidavit, the educational director of Premium Education (director) testified that "goals were created for [the student] to work on during the 2023-24 school year" which were "reviewed quarterly" (Parent Ex. F ¶¶ 4, 15).  According to the director, the June 2024 special education progress report was an "accurate representation of what [the student's SETSS provider] was working on with her, including goals, over the course of the 2023-24 school year;" however, the SETSS progress report, prepared in June 2024, used language such as that the student's progress "will be monitored," and success "will be measured," suggesting that the goals would be implemented in the future (Parent Exs. E at p. 3; F ¶ 16).  Additionally, the SETSS progress report stated that the "instructional plan and strategies" were designed to leverage the student's inherent strengths while "addressing the significant challenges she face[d] in a [seventh] grade SETSS and classroom environment," while the hearing record shows that the student was in sixth grade during the 2023-24 school year (Parent Ex. E at p. 3;  Dist. Ex. 3 at p. 2).  Thus, the hearing record does not provide a description of what goals were worked on with the student during the 2023-24 school year (see Parent Ex. E).

Additionally, the June 2024 progress report identified multiple ways to assess the student's progress, including through scheduled check-ins, alternative forms of assessment, such as oral presentations and visual projects, bi-monthly reading assessments, teacher-created assessments, and standardized rubrics (Parent Ex. E at pp. 2-3).  Further, while the Premium Education director testified that the student had "shown signs of progress with her service providers," and additionally testified that the student's progress was measured through "quarterly assessments, consistent meetings with the providers and support staff, observation of [the student] in the classroom, and daily session notes," none of these measures were included in the hearing record (Parent Ex. F ¶¶ 18-19).  Additionally, as noted above, the SETSS progress report did not describe the student's performance during the 2023-24 school year or include specific information on the student's progress with the SETSS provided by Premium Education (see Parent Ex. E).[16]  Notably, the SETSS progress report fails to detail what special education services were actually provided to the student.  Instead, the SETSS progress report can be best described as a plan for the SETSS provider for the upcoming 2024-25 school year and not a report of what specially designed instruction was delivered to the student during the 2023-24 school year.

Furthermore, although the student was eligible for special education as a student with a speech or language impairment and exhibited language delays that "affect[ed] her ability to access the general education curriculum without support services," the director of Premium Education testified that the agency was not providing speech-language therapy to the student although it could have provided the related service to the student, and the hearing record does not show that the student received speech-language therapy from another provider (Tr. p. 14; Dist. Ex. 3 at p. 4; see Tr. pp. 1-23; Parent Exs. A; C-F; Dist. Exs. 1-4).[17]

Lastly, it is not possible to ascertain from the evidence in the hearing record whether the student received any special education support in the classroom to enable her to access the general education curriculum or how the SETSS delivered to her supported her functioning in the classroom.  Accordingly, the hearing record lacks information concerning the student's general education school in terms of the instruction and curriculum provided, which necessitates assessing the unilaterally-obtained services in isolation from the student's general education private placement.  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, under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate.  The student's educational program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally-obtained SETSS, and when viewed together, with the idea that the specially designed instruction should support the student's access to the general education curriculum, there was insufficient information to support a finding of appropriateness under the Burlington-Carter framework (see Application of a Student with a Disability, Appeal No. 25-029; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-472; Application of a Student with a Disability, Appeal No. 24-478; Application of a Student with a Disability, Appeal No. 24-548; Application of a Student with a Disability, 24-593).

Accordingly, given the absence of evidence concerning what the SETSS provider worked on with the student during the 2023-24 school year or how the SETSS supported the student at the nonpublic school, the totality of the circumstances does not demonstrate that the parent met her burden of proving that the unilaterally-obtained services delivered by Premium Education were appropriate for the student under the Burlington-Carter standard.

VII. Conclusion

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated March 7, 2025 is hereby modified by reversing that portion which found the parent met her burden to demonstrate that the unilaterally obtained SETSS were appropriate; and

IT IS FURTHER ORDERED that the IHO's decision dated March 7, 2025 is hereby modified by reversing that portion which awarded three periods per week of SETSS in English at a rate not to exceed $125 per hour.