I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Always a Step Ahead, Inc. (Step Ahead) for the 2024-25 school year.  The district cross-appeals from the portion of the IHO's decision that ordered the district to provide the student services pursuant to pendency.  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 programming 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

A committee on preschool special education (CPSE) convened on December 1, 2022 (Parent Ex. B).  The student was then-currently attending a private preschool, presented with cognitive deficits, and had difficulty with phonemic awareness, pre-reading skills, answering questions, counting and "1:1 correspondence," spatial concepts, and attending and concentrating (id. at pp. 3-4).  In addition, the CPSE identified the student's social/emotional and behavioral deficits and reported that the student had difficulty in following class rules and directives, sharing and turn taking, and interacting appropriately with peers (id. at p. 4).  Finding the student eligible for special education as a preschool student with a disability, the CPSE developed an individualized education program (IEP) for the student for the remainder of the 2022-23 school year (see id. at pp. 1, 3, 13).  The CPSE recommended that the student receive nine hours per week of special education itinerant teacher (SEIT) services in a group of two, three 30-minute sessions per week of individual speech-language therapy, and three 30-minute sessions per week of individual occupational therapy (OT) (id. at pp. 1, 13).[1]

On March 23, 2023, a CSE convened and, finding the student eligible for special education as a student with a speech or language impairment, developed an IESP for the student for the 2023-24 school year (see generally IHO Ex. V).[2]  The CSE recommended seven periods per week of special education teacher support services (SETSS) in a group, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of OT (id. at pp. 1, 10-11).[3] The IESP noted that the student would be parentally placed in a nonpublic school (id. at p. 13).

On May 9, 2024, the parent signed a district form that stated her intention to enroll the student in a nonpublic school at her own expense for the 2024-25 school year and requested that the district provide special education services to the student (Parent Ex. E at p. 1).[4]  The parent noted on the form that she had "not yet received notice" that the district would be assigning service providers, so she was in the process of searching for her own providers and would be requesting district funding for the costs of the privately obtained services (id.).

On September 3, 2024, the parent signed a contract with Step Ahead for the provision of the "services agreed upon" in the December 2022 IEP during the 2024-25 school year (first grade) (Parent Ex. F at pp. 1-2).[5]

A. Due Process Complaint Notice

In a due process complaint notice dated September 11, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and equitable services for the 2024-25 school year by failing to recommend appropriate services and failing to implement any services for the student whatsoever (Parent Ex. A at pp. 1-2).  The parent alleged that the December 2022 IEP "recommend[ed] sufficient and adequate services," but, by reducing the recommended services in the March 2023 IESP, the district denied the student an appropriate program (id.).  Specifically, the parent alleged that the March 2023 IESP failed to address the "student's academic, social and emotional issues" and thereby failed to offer the student an appropriate educational program (id. at p. 1).  For relief, the parent sought funding for all services recommended in the student's December 2022 IEP "with any services that require adjustment to reflect the student's age to be adjusted accordingly," as well as compensatory services and an order recognizing the student's entitlement to pendency (id. at p. 2).

In a due process response, the district generally denied the allegations contained in the due process complaint notice, asserted certain affirmative defenses, and attached a supplemental notice describing a CSE meeting that purportedly occurred on June 26, 2024 (see Due Process Response).[6]

B. Impartial Hearing Officer Decision

An impartial hearing was convened before the Office of Administrative Trials and Hearings (OATH) on January 27, 2025, and concluded on the same day (see Tr. pp. 1-22).  In a decision dated April 1, 2025, the IHO found that the student was entitled to pendency, that the district denied the student a FAPE for the 2024-25 school year, but that the parent did not meet her burden to prove that the unilaterally-obtained services were appropriate (see IHO Decision).  The IHO also denied the motion to dismiss filed by the district for lack of subject matter jurisdiction and ripeness (id. at p. 6; see IHO Exs. III; IV).  Regarding pendency, the IHO determined that the student's December 2022 IEP established his educational placement for the purposes of pendency (IHO Decision at p. 7).  Although that IEP called for a preschool educational program, the IHO nonetheless found that it was the last agreed-upon placement for the student (id.).

In determining that the district had denied the student a FAPE for the 2024-25 school year, the IHO based her decision on admissions from the district that, although the student was entitled to receive services, no services had been implemented (IHO Decision at pp. 7-8; see Tr. pp. 14-15).

Turning to the appropriateness of the parent's unilaterally obtained services, the IHO determined that the implementation of the program and services recommended in the student's December 2022 IEP did not address the student's individual special education needs for the 2024-25 school year (IHO Decision at p. 9).  The IHO noted that one of the parent's main objections to the March 2023 IESP was that it failed to sufficiently address the student's academic, social, and emotional issues (id.).  However, the IHO found that, while the parent's documentary evidence reflected the student's needs in those areas, it did not describe any methodology, instruction, or goals provided to the student related to the student’s social interactions, well-being, and behavior (id.).  The IHO further noted that the March 2023 IESP recommended SETSS in order to address the student's needs in reading, writing, and math, whereas the SEIT services provided by Step Ahead left the student at a significant disadvantage compared to his peers (id.).  Because SEIT services were recommended to the student while in preschool in order to achieve goals appropriate for preschool, the IHO found that SEIT services were no longer appropriate for the student (id. at pp. 9-10).  With respect to related services, the IHO found that the parent's evidence did not "establish [the] Student's current needs" or show why the student needed three sessions per week of each service rather than two sessions as recommended in the March 2023 IESP (id. at p. 10).

Regarding the parent's request that the district fund a 12-month program for the student, the IHO found no evidence of substantial regression justifying the implementation of a 12-month program (IHO Decision at pp. 10-11).  Further, although the parent requested implementation of the student's December 2022 IEP as relief, the IHO noted that the IEP recommended a 10-month program instead of a 12-month program (id. at p. 11).

The IHO denied the parent's requested relief on the merits but ordered the district to "provide" the student the services set forth in the December 2022 IEP during the pendency of the matter retroactive to the filing of the due process complaint notice (IHO Decision at p. 12).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in denying her request for district funding of unilaterally obtained services provided to the student by Step Ahead during the 2024-25 school year.  In particular, the parent argues that the IHO mischaracterized her request as one for SEIT services rather than one for SETSS, noting that she alleged in her due process complaint that the student's December 2022 IEP offered "sufficient and adequate services" with adjustment to reflect the student's age and that the IHO erred in implying the parent sought implementation of the December 2022 IEP as written.  Regarding the appropriateness of services provided by Step Ahead, the parent argues that her dispute with the district was only over the frequency of services for the student, not the kinds of services the student was entitled to receive.  The parent argues that the Burlington/Carter analysis requires only that the parent establish that the general type of educational program obtained was reasonably calculated to enable the student to receive educational benefit at the time of the placement decision and does not involve "a question of classroom methodology, student performance, or dates of delivery of service of a specific certified provider chosen by a parent."  The parent argues that, at the time initiated, the parent's chosen program was appropriate for the student.

Additionally, the parent notes that there is no dispute over the rate of the parent's unilaterally obtained services.  The parent also argues that, even if she did not establish the appropriateness of the unilaterally obtained services, the IHO should have ordered funding for the services recommended in the March 2023 IESP because the student was entitled to an educational program, and the district failed to implement any services.

In an answer with cross-appeal, the district argues that the IHO's decision on the merits should be upheld in its entirety but that the IHO's award relating to the student's pendency placement should be overturned.  The district further raises procedural grounds, as well as equitable considerations, that it argues should alternatively result in dismissal of the parent's due process complaint and request for review.[7]  Specifically, the district argues that the parent seeks relief that exceeds the scope of the remedy sought in the due process complaint notice and… . Regarding pendency, the district argues that, by unilaterally arranging for private providers to deliver services to the student, the parent rejected the district's provision of the program that formed the basis for pendency, namely the December 2022 IEP.  Turning to the IHO's findings regarding the appropriateness of the student's unilateral placement, the district echoes the IHO's findings and also notes that attendance records indicated that the student was not receiving SETSS from Step Ahead regularly or at the recommended frequency.  Furthermore, the district argues that none of the evidence at the hearing record adequately described how services provided by Step Ahead addressed the student's needs and allowed him to access the general education curriculum.  Finally, the district argues, in the alternative, that equitable considerations do not favor the parent's request relief because the parent never provided the district with a ten-day notice and the parent's contract with Step Ahead is unenforceable.

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 the Impartial Hearing and of Review

The district contends that the parent's due process complaint notice requested relief in the form of SEIT services and rejected the March 2023 CSE's recommendation of SETSS and that, therefore, the parent cannot now seek SETSS in this matter.  Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  With respect to relief (versus alleged violations), the due process complaint notice must state a "proposed resolution of the problem to the extent known and available to the party at the time" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][7][A][ii]; 34 CFR 300.508[b]).

Here, the parent contracted with Step Ahead to provide the student with SETSS, and other evidence in the hearing record describes services delivered by special education teachers through Step Ahead broadly as "Special Education" (Parent Exs. F at p. 1; I at pp. 1-16; K at p. 1).  During the impartial hearing and on appeal, the parent has requested district funding for these services as well as related services delivered by Step Ahead.  Overall, the due process complaint notice set forth the parent's position that the December 2022 IEP, including the nine hours per week of group SEIT services, offered appropriate programming, whereas the March 2023 IESP, including the seven periods per week of group SETSS, represented an inappropriate reduction of services (see Parent Exs. A at pp. 1-2; B at p. 13; IHO Ex. V at p. 10).  However, the claims underlying the alleged denial of a FAPE or equitable services stood without regard to the parent's preference for the services recommended in the December 2022 IEP and the district was on notice that the parent disagreed with the programming set forth in the March 2023 IESP as well as with the district's failure to arrange for delivery of services to the student for the 2024-25 school year (see Parent Ex. A at pp 1-2).  As for relief, while it is true that the parent's due process complaint notice sought an award of all services set forth in the student's December 2022 IEP, which included SEIT services, the complaint also requested that "any services that require adjustment to reflect the student's age . . . be adjusted accordingly" (Parent Exs. A at p. 2; B at p. 13).[10]  Further, in a separate paragraph under the relief sought, the parent requested "funding for payment to the student's providers/agencies for the provision of all services awarded based on the services set forth on the [December 2022] IEP . . . for the entire 10-month 2024-2025 school year at the full rate each provider or agency charges" (id. [emphasis added]).

Overall, the IHO and the district have unduly focused on the distinction between SEIT services and SETSS in this matter.  By State law and regulation SEIT services are typically not allowed for school-aged students (see Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]), whereas SETSS could permissibly be recommended for the student but are not defined in the State's continuum (see 8 NYCRR 2006). Given these factors, it is not helpful that the hearing record lacks more testimony or evidence that clearly defines the contours and features of SETSS (versus SEIT services) as understood by the parties.  However, whether denominated as SEIT services or SETSS, the substance of the relief sought in the instant matter is the provision to the student of educational services by a special education teacher who assists the student in addition to the student's classroom program at the student's nonpublic school.  The language in the due process complaint does not foreclose the relief in this form.[11]

Turning to the scope of review, State regulations governing practice before the Office of State Review provide that a request for review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Additionally, a request for review must provide a "clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review" (8 NYCRR 279.8[c][2]).  The practice regulations further state that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer" (8 NYCRR 279.8[c][4]).

Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; 279.13; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]).

The district claims that the parent's request for review does not adequately object to most of the IHO's discrete findings regarding the student's unilateral placement, including the IHO's findings that the evidence did not reflect that the student needed the services in the December 2022 IEP and that the evidence was insufficient to demonstrate that the Step Ahead providers were addressing the student's needs or that the student needed the related services at the frequency and duration preferred by the parent.  However, a review of the parent's request for review in this matter demonstrates her intention to seek review of the IHO's determination "that there was insufficient evidence to show Parent's requested program was appropriate and entitled to funding."  Further, the parent points to progress reports in the hearing record to support her contention that services provided by Step Ahead were appropriate for the student.  As the parent has alleged a cognizable objection to the IHO's decision, I decline to preclude her challenge to the IHO's decision on this basis.

With that said, neither party has challenged the IHO's findings that the district failed to prove that it offered the student a FAPE for the 2024-25 school year or that there was insufficient evidence to support a finding that the student required an extended school year (IHO Decision at pp. 7-8, 10-11).  Accordingly, these determinations have become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

B. Pendency

Turning to the district's cross-appeal, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[12]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Consistent with the IHO's finding, the parties do not dispute overall that the December 2022 IEP would have formed the basis for the student's pendency during the instant administrative proceedings (see IHO Decision at p. 7).  However, the district argues that, when the parent acted unilaterally in arranging for private services, she rejected pendency.  Indeed, the parent made clear in her due process complaint notice that she made unilateral arrangements to obtain services from private providers for the student (see Parent Ex. A); thus, at this juncture it appears that it is the parent, not the district, that altered the status quo for purposes of stay-put.

The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35).  The Court described that:

[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis.  To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.

(id. at 534).

In short, the parents' decision to unilaterally obtain private services constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]).  The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parents had not been found appropriate in any administrative proceeding.  Accordingly, I will reverse the IHO's order requiring the district to provide the student with the services from the December 2022 IEP pursuant to pendency.

C. Appropriateness of Unilaterally-Obtained Services

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 recommend or implement appropriate public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Step Ahead 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, 959 F.3d at 526 [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]).[13]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.  A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

Thus, contrary to the parent's contention, a review of the appropriateness of a unilateral placement is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836).  Further, rather than being confined to a review of the types of services included in the unilateral programming as the parent contends, the standard must take into account totality of the circumstances, which may include factors such as methodology, student performance, and the delivery of the services.

1. Student's Needs

While not in dispute, a brief discussion of the student's needs facilitates discussion of the issue to be resolved, namely whether Step Ahead provided specially designed instruction to address the student's unique needs during the 2024-25 school year.  Here, the March 2023 IESP provides the most recent information in the hearing record about the student's needs prior to the parent's decision to unilaterally arrange for private services.

At time of the March 2023 CSE meeting, the student was attending preschool and demonstrated cognitive, social/emotional and behavioral, and attention deficits, which affected his participation in educational activities and age-appropriate functioning in school and social settings (IHO Ex. V at pp. 1-2).  The student had difficulty with processing, a short attention span, and remaining focused, which impacted his ability to connect what he was learning (id.).  He struggled with following directions, transitioning, and required repetition and redirection (id.).  The March 2023 IESP reported that the student had difficulty with matching items based on category, labeling shapes, sequencing skills, rhyming, and following directions during arts and crafts activities (id.).  In addition, the student had challenges with reading readiness, such as recognizing his name and copying letters, and he struggled with phonemic awareness skills (id. at pp. 2, 3).  In math readiness, the student had difficulty counting with one-to-one correspondence and labeling numbers 1-10 (id. at p. 2).

As for his social/emotional and behavioral needs, the March 2023 IESP reported that the student had delays in social interaction skills, which affected his ability to play appropriately with peers, take turns, and share (IHO Ex. V at p. 2).  The student struggled with self-regulation, especially when frustrated, and required support to calm down (id. at p. 3).  According to the IESP, the student was well-liked by peers but could be physical when frustrated and needed assistance to manage his emotions (id. at p. 4).

In the area of speech and language, the March 2023 IESP reported that the student received speech-language therapy services to address receptive-expressive and pragmatic deficits (IHO Ex. V at p. 3).  The student had improved in intelligibility but still struggled with distractibility, requiring frequent repetition and redirection (id.).  Further, the student had difficulty maintaining eye contact and responding to his name, and his narrative retell was often disorganized (id.).

Regarding physical development, the March 2023 IESP indicated that the student demonstrated good gross motor skills but had fine motor and sensory processing deficits (IHO Ex. V at p. 4).  The student had difficulty with prewriting/handwriting skills, such as grasping a pencil correctly and tracing (id.).  In addition, the student's sensory processing issues affected his ability to navigate his environment efficiently and maintain appropriate posture (id. at p. 5).

As for management needs, the IESP reflected the student's need for preferential seating, material presented in small increments, a multi-modal approach to instruction, and positive reinforcement (IHO Ex. V at p. 6).

Other information in the hearing record about the student's needs reported several months into the school year at issue tends to be relevant to a review of the student's progress or lack thereof with the unilateral programming, rather than establishing the student's underlying needs, which the parent was required to establish were met by the unilaterally obtained services.  Nevertheless, given that the March 2023 IESP was over a year old leading into the 2024-25 school year, to be thorough, the student's needs as set forth in Step Ahead progress reports, including a January 2025 educational progress report, a December 2024 speech-language progress report, and a January 2025 OT progress report, are briefly summarized (Parent Exs. J; K; L).

The January 2025 Step Ahead special education progress report was completed by one of the special education teachers assigned to the student during the 2024-25 school year (Parent Ex. K at p. 1).  According to the progress report, the student had difficulty with academics, with the student's primary areas of weakness in comprehending, reading, writing, and following instructions (id.).  The report indicated that the student was then-currently on "grade level Pre-K" for math, reading, and writing (id. at p. 3).  The report stated that the student displayed executive function deficits that hindered his ability to function properly inside the classroom and in "1 on 1 sessions with provider" (id.).

In reading, the January 2025 special education progress report stated the student "demonstrate[d] good organization of basic print features, articulat[ed] corresponding sounds for each letter and decod[ed] single-syllable words" (Parent Ex. K at p. 2).  The progress report stated the student had deficits in working memory, had difficulty recalling basic sounds and blends which indicated weak phonological awareness skill, and read words slowly with noticeable pauses between syllables, all of which impacted his fluency and comprehension, and "hindered his progress to read appropriate grade level texts" (id. at p. 2).  Furthermore, the student did not understand the concept of rhyming or producing verbal rhyming words and had mastered only five sight words compared to his classmates who had mastered "25+" sight words (id.).

In writing, the special education teacher progress report identified the student's strength as "[d]rawing some letters and writing his first name" (Parent Ex. K at p. 2).  The progress report stated the student's weaknesses were in expressing opinions about familiar topics or personal experiences "with reasons," providing information about a familiar topic, narrating events in sequence, and answering questions through recalling relevant information (id.).

In the area of math, the progress report stated that the student's strengths were naming digits one through 20 and naming shapes (Parent Ex. K at p. 1).  The student was able to count to 10, add one to the numbers one through 10, and count objects (id.).  The report stated that the student had not mastered counting to 100 by ones and tens or writing numerals zero to 20 and struggled with writing numbers, understanding place value, and "addition" (id.).

Socially, the January 2024 special education progress report indicated the student displayed significant social deficits and had challenges with social interactions, emotional well-being, and behavior (Parent Ex. K at pp. 1, 3).  The student was reported to be friendly toward peers and adults, but sometimes struggled to comprehend social boundaries (id.).  In addition, the special education progress report indicated the student was slowly mastering engaging with other students (id.).  The student was reported to enjoy coloring, trinkets, and characters (id.).

The December 2024 Step Ahead speech-language progress report indicated the student had deficits in expressive language, receptive language, and articulation (Parent Ex. J at p. 1).  According to the report, the student had difficulty producing the phoneme /th/, which impacted his clarity of speech and he struggled with phonemic awareness skills and had difficulty decoding and encoding many words (id.).  The student had difficulty with basic and complex comprehension tasks and would often misconstrue questions, providing irrelevant responses (id.).  The student often struggled to comprehend instructions for tasks resulting in incomplete classwork and had difficulty following one step written directions, responding to questions about key details in stories, retelling main details in stories he had read, and responding to critical thinking questions based on pictures and scenarios (id.).  The speech-language progress report stated the student often needed assistance listing items in categories, describing items providing multiple attributes, stating the similarities/differences between items and formulating written sentences (id.).  Additionally, the report stated that at times the student misinterpreted nonverbal and social interactions (id.).  The report indicated that the student responded well to positive reinforcement (id.).

The January 2025 OT progress report indicated the student presented with a weak core and weak hand strength which affected his handwriting and was characterized by poor letter formation, sizing, spacing, legibility, and letter and word reversals (Parent Ex. L at p. 1).  According to the progress report the student correctly held a pencil 25 percent of the time, had a weak grasp, and poor intrinsic muscles (id. at p. 2).  With assistance for hand placement and visual cues, the student held scissors properly to cut a thick line (id.).  The report also noted that the student presented with poor oculomotor skills requiring constant verbal and visual cues to locate words or numbers on a worksheet and impaired visual motor skills which negatively impacted his class participation (id. at pp. 1, 2).

2. Services Delivered by Step Ahead

The evidence in the hearing record pertaining to the unilaterally obtained services is limited to the parent's exhibits, as the parent did not present witnesses to testify during the impartial hearing (see Tr. pp. 1-22; Parent Exs. A-L).  According to the parent's contract with Step Ahead, services were to be provided to the student consistent with those listed in the student's December 2022 "IEP/IESP" (Parent Ex. F at p. 1).[14]  A review of the December 2022 IEP shows this included nine hours per week of SEIT services in a group of two, three 30-minute sessions per week of individual speech-language therapy, and three 30-minute sessions per week of individual OT (Parent Ex. B at pp. 1, 13).  Evidence provided by the parent included New York State certification documents for the three special education teachers assigned to provide services to the student during the 2024-25 school year and evidence that the speech-language therapist and occupational therapist held professional licensure in New York (Parent Ex. H at pp. 1-5; see Parent Ex. I at pp. 1-16).

Included in the hearing record is a document, identified on the exhibit list as "Attendance Records" yet document itself does not bear any title or otherwise reflect the origin of the document (see generally Parent Ex. I).  The document reflects entries, which include a provider's name, the service provided, the date of each session, length of session, location the service was provided, and in some instances goals addressed and provider notes (id. at pp. 1-16).

According to the records, between September 16, 2024, and December 31, 2024, the student received special education teacher services from three different teachers for up to nine hours per week, usually in the afternoons on Monday through Thursday (between 1:30 and 4:30), although for several weeks, the student received fewer or no special education teacher services (Parent Ex. I at pp. 1-16).[15]  More specifically, of the approximate 15 weeks included in the attendance records, for eight weeks, the student received between seven and nine hours of special education teacher services, and for one week, the student received five and a half hours of special education teacher services, but, for the other six weeks, the student received between zero and two hours of special education teacher services (id.).  The student often received special education instruction in blocks of time ranging from 30 minutes to two and a half hours, at times receiving separate sessions from different providers in the same afternoon (id. at pp. 1-16).  The hearing record indicates that the special education teacher services were provided in school but does not indicate whether the services were provided during or after school hours, or if they were provided within or outside of the classroom (see generally Parent Exs. I; K).  For December 2024, the student only received four 30-minute sessions of special education teacher services per week (Parent Ex. I at pp. 13-16).

The hearing record includes a January 2025 special education progress report from one of the teachers who delivered the student's services; however, the attendance records indicate the student received special education teacher services from three different teachers (compare Parent Ex. K at p. 1, with Parent Ex I).  The special education teacher whose name appears on the progress report delivered services for nine of the student's sessions and had not provided any services to the student since November 25, 2024 (see Parent Ex. I).

The January 2025 special education progress report included some notes on the student's abilities and needs in the area of reading, as detailed above, but did not provide detail regarding progress or what the student was working on up to that point in the school year (Parent Ex. K at p. 2).  The progress report did include goals for reading, which would be addressed in the "next 3 months," such as correctly naming all the letters of the alphabet, producing verbal rhyming words, blending and taking apart syllables orally, and recalling grade-level sight words (id. at pp. 2-3).  According to entries in the attendance records with corresponding notes, the special education teachers worked with the student on letter identification, "ABC" sounds, short vowel sound identification, sight words, decoding, rhyming words, phonological and phonemic awareness, reading comprehension, reading "CVC" words, plurals, homophones, diagraphs, reading fluency, "bubble vowels," and beginning blends (Parent Ex. I at pp. 1-16).  To teach the above reading skills, the special education teachers used phonemic awareness activities and games, vowel cards, CVC bingo, the reading small books, fluency and diagraph games, magnetic letters to build words, word wheels, sight word stencils, and worksheets and storybooks (id.).

Regarding writing, the January 2025 special education progress report does not provide detail concerning progress or what the student was working on up to that point in the school year, but included four writing goals to be addressed in the "next three months" including: stating an opinion and providing support using drawing or emergent writing, suppling information about a familiar topic using drawing or dictating with correct sequencing and details, narrating an event in a clear sequence using drawing or oral expression, and answering questions through recalling relevant information (Parent Ex. K at p. 2).  The entries in the attendance records with corresponding notes indicated writing instruction occurred during six special education teacher sessions (see Parent Ex. I).  Writing instruction focused on handwriting skills, letter and number formation, writing two sentences in response to teacher questions, creating a drawing related to a topic, drawing a person with a partner and orally answering questions, and writing the missing letter in a word (id.).

With respect to math, the January 2025 special education progress report included student abilities and needs, but did not include detail regarding progress or what the student was working on up to that point in the school year (Parent Ex. K at p. 1).  The progress report identified three math goals for the student to achieve in the "next three months" including: counting to 100 by ones and tens, writing numbers zero to 20 with correct formation and sequencing, and accurately writing the corresponding numeral when given a number between zero and 20 orally or in written form (id. at pp. 1-2).  According to the entries in the attendance records with corresponding notes, math instruction occurred during 17 of the special education teacher sessions, with the last session note regarding math instruction occurring on November 28, 2024 (Parent Ex. I at pp. 1-16).  According to the notes in the attendance records, math instruction focused on adding numbers, writing numerals, and learning the "doubles song," and the special education teachers used math workbooks, computer instruction, provision of examples, manipulatives, flash cards, and number lines from zero to five to support instruction (id. at pp. 1-10, 12).

While the January 2025 special education progress report identified the student as displaying "significant" social deficits and challenges with "social interactions, emotional well-being, and behavior" and noted that he sometimes struggled to comprehend appropriate social boundaries, the progress report and attendance record did not provide any information on how those needs were addressed through special education teacher services, or what supports the student required to progress in the classroom (Parent Ex. K at pp. 1, 3; see Parent Exs. I at pp. 1-16; K at pp. 1-3).  In addition, the progress report indicated that the student displayed executive function deficits that hindered his ability to function properly inside the classroom and in one-on-one sessions with the provider (Parent Ex. K at p. 1).  The special education progress report indicated the student was "slowly mastering engaging with other students" but might "require more service hours due his extreme delay," yet there was no documentary or testimonial evidence of how the special education teacher services addressed the student's social/emotional, behavioral, or executive functioning deficits in the general education classroom or within the special education teacher sessions (id. at p. 3).  Only one session note indicated any interaction with another student where the student worked with a partner to draw a picture and ask/answer questions about the drawing (Parent Ex. I at p. 12).  In two instances the special education teacher provided support to the student for him to complete classwork and once the provider worked on having the student "independently place his homework folder in his knapsack to prevent any forgetfulness" (id. at pp. 2, 8, 9).

Turning to speech-language therapy, the December 2024 speech-language progress report indicated that the student's then-current IEP recommended three 30-minute sessions of speech-language therapy services (Parent Ex. J at p. 1).  According to the attendance records, the student began receiving speech-language therapy services through Step Ahead on November 4, 2024, and the last session recorded took place on December 17, 2025 (see Parent Ex. I at pp. 1-16).  The attendance record showed that over those seven weeks the student received 16, 30-minute speech-language therapy sessions, with an average of two sessions per week (id. at pp. 5-15).

According to the December 2024 speech-language progress report, the student could respond to basic questions, was able to verbally produce a complete sentence and could "now" decode "CVC" and some "CCVC" and "CVCC" words (Parent Ex. J at p. 2).  The progress report included annual goals on which the student was then-currently working such as: discriminating between and answering WH questions during games, listening reading tasks, and multimodal activities; increasing expressive language skills by retelling and summarizing information using complete sentences, sequencing events, and problem solving; increasing receptive language skills by responding to comprehension questions, following multi step directions, making inferences, forming predictions, and drawing conclusions; and increasing literacy skills by decoding/encoding "cvc, cvcv, and cvvc" words (id. at pp. 1-2).  The session notes for speech-language therapy documented in the attendance record indicated that therapy focused on literacy activities including decoding CVC and CVCC words, encoding CVC words and the student's name, identifying phonemes, and matching CVC words to pictures (Parent Ex. I at pp. 5-15).  In addition, therapy focused on the student responding to critical thinking questions based on a picture scene, answering where and how questions, responding to questions based on stories read aloud, generating complete sentences orally and in writing, describing events or pictures by providing details, stating similarities/differences between items, and following one step written directions (id. at pp. 5-15).  The student's articulation deficits were not addressed according to the notes in the attendance records (see id.).

The speech-language progress report indicated that the student exhibited minimal progress toward meeting his goals and recommended increasing services to three 30-minute sessions per week (Parent Ex. J at p. 2).  The speech-language therapist recommended new annual goals for the student to be addressed during the remainder of the school year including: improving speech intelligibility by producing the phoneme /th/ in all positions in a sentence; improving comprehension by responding to critical thinking questions; improving expressive language skills in the areas of categorization, producing complete written sentences, producing irregular past tense verbs, and describing events/topics by providing five details; improving phonemic awareness skills; and improving listening comprehension and attention skills (id. (at pp. 2-3).

In terms of OT, the January 2025 OT progress report indicated that the student's then-current IEP recommended OT services of three 30-minute sessions per week, yet the student started to receive OT services on November 5, 2024, and they consisted of OT twice weekly outside of the classroom (Parent Exs. I at pp. 6-15; L at pp. 1, 2).  The attendance records showed over the seven weeks between November 5 and December 18, 2024, the last date for which an OT session was recorded, the student received 15, 30-minute OT sessions with an average of two sessions per week (Parent Ex. I at pp. 6-15).

The January 2025 OT progress report indicated that the student was then-currently working on annual goals involving improving sensory difficulties, improving fine motor/graphomotor skills, and tolerating upper body and core strengthening exercises (Parent Ex. L at pp. 1-2).  The report indicated the student had made some progress toward meeting his individual goals (id. at p. 2).  According to the report the student could correctly hold a pencil 25 percent of the time with moderate assistance and could hold scissors correctly to cut a thick line when aided with hand placement and visual cues (id.).  The session notes within the attendance record indicated that OT focused on handwriting (letter formation, sizing and spacing), hand strengthening, gross motor skills, visual motor skills, visual scanning, visual discrimination, and memory recall (Parent Ex. I at pp. 6-15).  The therapist used a variety of techniques to address these skills such as worksheets, scooter boards, color by number, board games, handwriting workbook, yoga, therapy putty, a game involving pegs, a lacing activity, and coloring (id.).

Despite only providing the student with OT twice a week on average since November, the occupational therapist recommended the student "continue" to receive three 30-minute sessions of individual OT to address "delays in fine motor, visual motor, core strength and attention" which "negatively impact[ed] his writing, focusing, class participation and performance" (Parent Ex. L at pp. 1-2).  In addition, the January 2025 OT progress report identified four new goals for the student to achieve in one year including: demonstrating increased strength, improving near and far point copying tasks, and improving oculomotor and visual motor/perceptual skills (id. at pp. 2-3).

Given the foregoing evidence, while I do not agree with the IHO's reasoning in all respects—such as the degree to which the IHO focused on Step Ahead's provision of SEIT services versus SETSS as discussed above—I find insufficient basis to disturb the IHO's finding that, taking into account the totality of the evidence, the parent did not meet her burden to prove that the services unilaterally obtained for the student constituted specially designed instruction to address the student's unique educational needs.  In particular, although the hearing record contains some evidence of strategies and materials the student's providers utilized in their sessions with the student during the 2024-25 school year in the areas of academics, speech-language therapy, and OT, as the IHO found, the hearing the record does not include evidence that Step Ahead was addressing the student's social/emotional or behavioral needs, which the private providers described within the January 2025 progress report as "significant social deficits" (IHO Decision at p. 9; Parent Ex. K at p. 3; see Parent Exs. I; K).  In addition, the evidence in the hearing record does not demonstrate that Step Ahead addressed the student's executive function deficits that "hinder[ed] his ability to function properly inside the classroom and in 1 on 1 sessions" (Parent Ex. K at p. 1; see Parent Exs. I; K).  Further, there is no explanation in the hearing record for the variable frequency at which the student's services were delivered or why the student's speech-language therapy and OT did not commence until November 2024.[16]

In addition, although as noted, the evidence describes some specially designed instruction delivered through the special education teacher services and related services, absent from the hearing record is information about the student's general education program that the special education teacher services and related services were meant to support or the student's progress vis-à-vis the general education curriculum.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  However, the hearing record does not include any evidence of the instruction that the student received while attending the general education classroom during the 2024-25 school year in terms of the structure, instruction and curriculum provided, methodologies, or modifications within the core educational program.  Indeed, given the student's social/emotional needs and the lack of evidence that such needs were addressed through the unilaterally obtained services, it is not clear from the hearing record how the student fared in the general classroom.  For example, it is not possible to ascertain from the evidence presented whether the student received any special education support in the classroom to enable him to access the general education curriculum or how the services from Step Ahead supported his functioning in the classroom.  Without evidence regarding the school-based programming, the unilaterally obtained services were described in isolation.  The lack of evidence about what the general curriculum entailed or how the special education teacher services and speech-language therapy and OT supported the student's access to that curriculum makes it difficult to determine whether the services actually addressed the student's needs in a way contemplated by the regulations (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  The absence of such information means that the services could not be evaluated in the context of the setting in which the student was purportedly being educated.

Given the totality of the circumstances, including the lack of evidence that the unilaterally obtained services addressed the student's social/emotional and behavioral needs, regarding the basis for the variable frequencies and delays in delivery of services, and regarding how the student's services were delivered and whether they supported the student in accessing the general education curriculum, there is no basis to disturb the IHO's determination that the parent did not meet her burden to demonstrate the appropriateness of the services provided by Step Ahead.

D. Compensatory Education Services

Lastly, I turn to the parent's allegation that, even if she did not establish the appropriateness of the unilaterally obtained services, the IHO should have ordered funding for the services recommended in the March 2023 IESP because the student was entitled to an educational program, and the district failed to implement any services.  The parent does not characterize the relief sought in this form.  It is unclear if the parent seeks funding for the services provided by Step Ahead but at maximum frequencies in align with the March 2023 IESP instead of the December 2022 IEP or if the parent seeks funding for future services to remedy past denials of a FAPE, i.e., compensatory education.  With respect to the former, as discussed above, the parent failed to meet her burden to prove the appropriateness of the services provided by Step Ahead and reference to a different IEP or IESP does not change the analysis of the services already delivered to the student.  With respect to compensatory education, it is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]).  Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).

Here, the parents engaged in self-help and unilaterally obtained private services for the student but, as discussed above, failed to meet her burden to prove the appropriateness of those services.  To the extent the parent seeks compensatory education in the form of district funding of further services by private providers of the parent's choosing, either from the same providers discussed above or from unidentified providers, the parent is effectively attempting an end run around bearing the burden of proof to establish the appropriateness of the privately-obtained services.  SROs have consistently indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district, and I note that no Court or other authoritative body in this jurisdiction has addressed the topic to date (see, e.g. Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050).  Where the parent seeks relief in the form of compensatory education to be provided by parentally-selected private special education companies or independent providers, I find it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief.  Thus, without more, the re-casting of the remedy alone cannot serve to revive the parent's requested relief.

VII. Conclusion

Having determined that the parent disrupted the status quo by unilaterally obtaining private services, thereby rejecting pendency services for the student, and that the parent failed to establish the appropriateness of the student's unilaterally obtained services from Step Ahead for the 2024-25 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 tuition reimbursement (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).  I have considered the parties' remaining contentions and find them unnecessary to address given my above determinations.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated April 1, 2025, is modified by reversing that portion which ordered the district to provide the student with the services set forth in the December 2022 IESP during the pendency of this matter.