I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which ordered respondent's (the district's) implementation unit to set the hourly rate to fund the costs of the compensatory educational services awarded for the 2024-25 school year.  The district cross-appeals from the IHO's determinations that the parent sustained her burden to establish the appropriateness of student's home-based, bilingual speech-language therapy services and that equitable considerations weighed in favor of the parent's requested relief.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[a]).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student in this matter has been the subject of prior State-level administrative appeals, as well as at least one District Court proceeding (see Y.S. v. New York City Dep't of Educ., 2024 WL 4355049 [S.D.N.Y. Sept. 30, 2024]; Application of a Student with a Disability, Appeal No. 24-429 [deciding distinct and limited issues remanded to the SRO by the district court]; Application of a Student with a Disability, Appeal No. 23-024 [finding that the parent's claim for compensatory educational services consisting of bilingual speech-language therapy was time-barred by the statute of limitations]).[1]  Accordingly, the parties' familiarity with the facts and procedural history preceding this case—as well as the student's educational history—is presumed and, as such, they will not be repeated herein unless relevant to the disposition of this appeal.

Evidence in the hearing record reflects that, during the 2023-24 school year, the student—who was eligible to receive special education as a student with autism—attended fifth grade in an 8:1+2 special class placement at a nonpublic school and received the following school-based related services: four 30-minute sessions per week of speech-language therapy services, two 30-minute sessions per week of occupational therapy (OT), two 30-minute sessions per week of physical therapy (PT), one 30-minute session per week of counseling services, and one 30-minute session per week of music therapy (see Dist. Exs. 13 at p. 1; 17 at p. 1; Parent Ex. C at p. 1; see generally Parent Ex. J).[2]^, [3]  In addition, the evidence reflects that the student received three hours per week of home-based, bilingual speech-language therapy services, which had been delivered by one agency provider from "January of 2022 to November of 2023" when the parent then selected another agency—the "MichelleRG Speech Services LLC" (MichelleRG or agency)—to continue to provide the student's home-based, bilingual speech-language therapy services beginning in or around "February of 2024" (Parent Ex. A at pp. 3, 9-10, 19-21).[4]

Evidence in the hearing record further demonstrates that, over the course of two days in February and March 2024, the parent obtained a bilingual speech-language evaluation of the student (March 2024 bilingual speech-language evaluation) "in compliance with the request of an [IHO]" (Parent Ex. E at pp. 2-3).[5]  Within the report, the evaluator described the student as a "sequential bilingual learner, where Spanish [wa]s the primary language spoken since birth," and explained that the student was considered to be a sequential bilingual learner because she had "'significant and meaningful exposure to a second language after the age of [three] and after the first language was well established'" (id. at p. 6).  The evaluator also noted that, based on parent reporting, Spanish was spoken "100 [percent] of the time" at home (id.).  The evaluator also noted, however, that the student was "currently educated in English," but lived in a "culturally and linguistically diverse neighborhood . . . where both Spanish and English [we]re spoken in the community" (id. at pp. 6-7).

Next, the evaluator indicated that, based on literature concerning the acquisition of English as a second language, "[b]asic [i]nterpersonal [c]ommunication [s]kills (BICS) develop[ed] within two years of immersion in the target language and [we]re described as 'day-to-day language that [wa]s context embedded'" (Parent Ex. E at p. 7 [emphasis omitted]).  In addition, the evaluator referenced the "Cognitive Academic Language Proficiency (CALP)," which, according to the evaluator, "represent[ed] language that [wa]s context-reduced, academic, and cognitively demanding" (id.).  Citing to literature, the evaluator explained that it took "5 to 7 (or even 10) years to become proficient in CALP," and according to the evaluator, the student, at that time, "present[ed] with [CALP] . . . in English and Spanish," which was evidenced by the student's ability to "provide on-topic responses to questions or hold an extended conversation in either English or Spanish" (id.).  Additionally, the evaluator indicated that the student's CALP was "judged to be acquired," which was evidenced by the student's ability to "infer, predict and persuade and process information that [wa]s context-reduced and cognitively demanding in both Spanish and English" (id. [emphasis in original]).

According to the March 2024 bilingual speech-language therapy evaluation report, the evaluator used the following to assess the student: a review of records, interview, observation, and testing; a parent interview; selected subtests of the Clinical Evaluation of Language Fundamentals—Fifth Edition (English) (CELF-5 English); selected subtests of the Clinical Evaluation of Language Fundamentals—Fourth Edition (Spanish) (CELF-4 Spanish); the Dynamic Assessment: Non-Word Repetition Task; the Informal Reading Inventory (IRI); the School-Age Language Assessment Measures (SLAM); an informed clinical opinion; and the Primary Spelling Inventory (PSI) and the Elementary Spelling Inventory (ESI) (see Parent Ex. E at pp. 2-3).  Based on the student's testing results, the evaluator recommended that the student receive speech-language therapy services from a "[b]ilingual clinician" to address her expressive language, social pragmatic, and writing skills (id. at p. 31).[6]  According to the evaluator, the student had "developed well in [her] first language [Spanish], which ha[d] added well-versed development of her second language [English]; therefore, instruction in [s]peech-[l]anguage therapy should be provided in both languages the [student wa]s exposed to as there may be negative consequences, both social and emotional, if the native language [wa]s not supported" (id.).  The evaluator had also noted that, based on research, "students working in an additive bilingual environment succeed[ed] to a greater extent than those whose first language and culture [we]re devalued by their schools and by the wider society" (id. at pp. 30-31).

In addition to the foregoing, the evaluator included annual goals in the March 2024 bilingual speech-language evaluation report targeting the student's pragmatic and social language skills, expressive language skills, and written language skills (see Parent Ex. E at p. 31).

By letter dated April 22, 2024, the parent sent the district a copy of the student's March 2024 bilingual speech-language evaluation report (see Parent Ex. E at p. 1).  Within the letter, the parent informed the district that she had received a "provisional acceptance" for the student to attend a State-approved, nonpublic school for the 2024-25 school year, and she wished to "discuss the possibility of [the student] attending" the nonpublic school for the 2024-25 school year (id.).[7]

On May  31, 2024, a CSE convened to conduct the student's annual review and to develop the student's IEP for the 2024-25 school year (sixth grade) (see Parent Ex. C at pp. 1, 23).  Finding that the student remained eligible for special education as a student with autism, the May 2024 CSE recommended 12-month programming, consisting of the following: an 8:1+1 special class placement in a State-approved nonpublic day program, together with two 30-minute sessions per week of OT, PT, and speech-language therapy; one 30-minute session per week of counseling and speech-language therapy in a group, with all services delivered in English; and one 30-minute session per month of parent counseling and training services (see Parent Ex. C at pp. 1, 17-18).

In a letter dated June 14, 2024, the parent notified the district of her intentions to continue to provide the student with three hours per week of "private," home-based bilingual speech-language therapy services for the 2024-25 school year and to seek reimbursement of those costs from the district (Parent Ex. D at pp. 1-2).  The parent noted that she did not agree with the district's special education program recommendations in the student's May 2024 IEP, which failed to include a recommendation for bilingual speech-language therapy services; the parent further noted that the district had "no support for its recommendation of monolingual speech services" (id. at p. 2).

Shortly thereafter, a CSE convened on June 24, 2024 (June 2024 IEP), and modified the student's May 2024 IEP to include the following recommendations: 12-month programming in an 8:1+2 special class placement in a State-approved nonpublic day program, additional OT services, and additional speech-language therapy services (delivered in English) (compare Dist. Ex. 2 at pp. 1, 17-18, 23, with Parent Ex. C at pp. 1, 17-18).[8]

On July 15, 2024, the parent executed a "Parental Guarantee of Payment" (contract) with "MichelleRG Speech services LLC" (MichelleRG or agency), to deliver three hours per week of "private," home-based bilingual (English/Spanish) speech-language therapy services to the student from July 1, 2024 through June 30, 2025, at a rate of $350.00 per hour (Parent Ex. F at pp. 1-2).[9]

A. Due Process Complaint Notice

By due process complaint notice dated July 19, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. B at p. 1).  As relevant to this proceeding, the parent indicated that the student resided in a "Spanish-speaking household and sp[oke] Spanish to her family members and in her community" (id. at p. 3).  The parent also indicated that, based on a March 2024 bilingual speech-language evaluation, the student was found to be a "sequential bilingual student" and had included a recommendation for the student to receive "bilingual (English/Spanish) speech-language services," which the district did not recommend for the 2024-25 school year (id. at pp. 3-4).  In addition, the parent alleged that, although the student's IEP included a recommendation for special transportation services, the district failed to provide those services until July 8, 2024, causing the student to miss approximately one week of school (id. at p. 4).  As relief, and as relevant herein, the parent requested an "immediate pendency determination," which the parent asserted was based on an IHO decision, dated June 13, 2024 (June 2024 IHO decision) (id. at p. 5).  Next, the parent requested an order that the district fund the student's home-based, bilingual speech-language therapy services during the 2024-25 school year, reimburse the parent for the costs of "school-time foods," and fund compensatory educational services consisting of special education teacher support services (SETSS) and related services (speech-language therapy, OT, PT, and counseling) for missed services due to the lack of special transportation services (id.).

B. Impartial Hearing Officer Decision

On August 28, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH); the impartial hearing concluded on October 7, 2024, after three days of proceedings (see Tr. pp. 1-120).  On October 16, 2024, the IHO issued an interim decision on pendency, which ordered the district to provide the student with three hours per week of bilingual speech-language therapy during the pendency of the proceeding based on the unappealed June 2024 IHO decision (see IHO Ex. IV at p. 5).  Thereafter, in a decision dated December 1, 2024, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year; the home-based, bilingual speech-language therapy services were appropriate; and equitable considerations weighed in favor of the parent's requested relief (see IHO Decision at pp. 7-11).  In finding that the district failed to offer the student a FAPE, the IHO initially noted that, while the district did not "explicitly concede" on this point, the district nonetheless "effectively did so" by failing to present sufficient evidence, such as witnesses, to explain the rationale for recommending "monolingual" speech-language therapy services or why the student did not require "bilingual" speech-language therapy services to make progress (id. at p. 7).  Additionally, the IHO noted that, at the impartial hearing, the district "did not dispute that [the s]tudent required bilingual" speech-language therapy (id., citing Tr. p. 115).[10]

With respect to finding that the home-based, bilingual speech-language therapy services were appropriate, the IHO indicated that the student received such services from a "licensed speech[-]language pathologist with a bilingual extension" (IHO Decision at pp. 8-9).[11]  The IHO found that the March 2024 bilingual speech-language evaluation report included annual goals targeting the student's needs, and the provider addressed the student's "pragmatic language, inferencing, situational awareness, awareness during social interactions, and figurative language" (id. at p. 9, citing Parent Ex. E at p. 32 and Parent Ex. I at p. 3).  According to the IHO, the provider also worked on "reading and understanding of age-appropriate reading texts," and used "scaffolding, pre-teaching, prompts, and positive reinforcement" during the bilingual speech-language therapy services with the student (IHO Decision at p. 9, citing Parent Ex. I at p. 3).  The IHO also found that, based on the director's testimony, the student was "making steady progress" on her annual goals, and the parent similarly testified that the student was "show[ing] improvement" (IHO Decision at p. 9, citing Tr. pp. 79-80 and Parent Ex. I at p. 3).  For these reasons, the IHO found that the parent sustained her burden to establish the appropriateness of the bilingual speech-language therapy services delivered by the agency (see IHO Decision at p. 9).

Next, the IHO turned to address equitable considerations (see IHO Decision at p. 10).  Here, the IHO determined that the evidence supported a finding that the parent cooperated with the district and timely provided the district with a 10-day notice with regard to her concerns with the student's special education program for the 2024-25 school year, which specifically included concerns that the district failed to recommend bilingual speech-language therapy services (id.).  With respect to the hourly rate, the IHO indicated that he examined the "market rate study" proffered by the district as evidence and did not "find such evidence persuasive" (id., citing Dist. Ex. 18).  More specifically, the IHO noted that the district's evidence, while referring to "related services providers," failed to include any rates "published specifically for related services providers, such as a speech-language pathologist" (IHO Decision at p. 10, citing Dist. Ex. 18 at pp. 17-18, 24).  Additionally, the IHO considered the district's "Related Services—Independent Provider Rate Schedule" (rate schedule) entered into evidence, and similarly determined that it was not "persuasive" evidence (IHO Decision at p. 10, citing Dist. Ex. 19).  The IHO indicated that, although the rate schedule may have been "somewhat relevant, no explanation was offered, such as testimonial evidence, to explain how the rates were established" (IHO Decision at p. 10).  In addition, the IHO questioned whether the district's rate schedule had "consider[ed] the agency costs associated specifically" with MichelleRG's provider, noting further that the director "credibly testified" that the agency paid the speech-language provider "up to 80" percent of the hourly rate, and the "remainder of the $350.00 hourly rate would then be allocated between the different costs, including the costs for professional development, the costs for the clinical director, the costs for supervision, and the costs for insurance" (id. at pp. 10-11, citing Tr. pp. 96-98, 109-10).  Consequently, the IHO concluded that the evidence in the hearing record supported a determination that the agency's hourly rate of $350.00 for bilingual speech-language therapy was reasonable, "absent competent evidence to suggest otherwise" (IHO Decision at pp. 10-11).

Next, the IHO addressed the parent's request for compensatory educational services consisting of 36 hours of SETSS at a rate of $150.00 per hour for the services the student missed during the 2024-25 school year due to the district's failure to provide special transportation services (see IHO Decision at pp. 11-13).  Initially, the IHO found a "full day of special education instruction to be six hours daily" (id. at p. 12).  The IHO also found that, while the district did not dispute the parent's requested relief, the parent had mistakenly formulated her request for compensatory educational services based on six days of missed services, rather than five days of missed services (id.).  As a result, the IHO reduced the hours of missed SETSS to 30 hours, rather than the 36 hours as requested by the parent as relief (id. at pp. 12, 15).

With respect to the parent's request to fund the compensatory educational services at a rate of $150.00 per hour, the IHO indicated that "various factors" were relevant to this determination, identifying the "provider's explanation of the rate, including its costs and the qualifications of its instructors; . . . , the value that specialized certification, such as a bilingual extension, add[ed] to instruction; . . . and the parent's efforts to locate a [district]-approved SETSS provider from a list provided by the [d]istrict to the parent" (IHO Decision at p. 12).  Based on the weight of the evidence, the IHO concluded that, although the parent cooperated with the district to "develop an IEP and recommend a placement" for the 2024-25 school year, the hearing record lacked any evidence indicating that the parent could not locate a SETSS provider "at a rate less than $150.00 per hour" (id.).  Additionally, the IHO indicated that, although the parent's evidence included a "SETSS Provider Agency" rate sheet, the hearing record was devoid of evidence with respect to the "appropriateness of such provider" (id. at pp. 12-13).  Therefore, the IHO found no "justification to award [the p]arent an enhanced rate of $150.00 hourly," and directed the district to "fund the compensatory education award . . . at a reasonable market rate to be determined by [the d]istrict's Implementation Unit" (id. at p. 13).

As relief, and as relevant herein, the IHO ordered the district to fund three hours per week of bilingual speech-language therapy services at a rate not to exceed $350.00 per hour (12-month programming) to be delivered by a provider selected by the parent and to fund compensatory educational services consisting of 30 hours of SETSS at a "reasonable market rate" to be determined by the district's implementation unit (no expiration date) and to be delivered by a provider selected by the parent (IHO Decision at p. 15).

IV. Appeal for State-Level Review

The parent appeals, arguing that the IHO erred by ordering the district's implementation unit to set the hourly rate to fund the compensatory educational services' award (30 hours of SETSS).[12]  The parent also argues that the IHO erred by entering district exhibit 18 into the hearing record as evidence ("American Institutes for Research's 'Hourly Rates for Independently Contracted Special Education Teachers and Related Service Providers'") [AIR study report].[13]  In addition, the parent submits additional documentary evidence for consideration on appeal.  As relief, the parent seeks an order directing the district to fund the compensatory educational services' award of 30 hours of SETSS at a rate of $150.00 per hour by Kid Success, Inc.[14]

In an answer, the district responds to the parent's allegations and generally argues to uphold the IHO's order directing its implementation unit to set the rate to fund the student's compensatory educational services award.  The district also objects to the parent's attempt to submit additional documentary evidence for consideration on appeal.  Next, the district cross-appeals from the IHO's finding that the parent sustained her burden to establish the appropriateness of the home-based, bilingual speech-language therapy services as part of the student's unilateral placement.  The district also cross-appeals from the IHO's pendency decision, arguing that since the parent unilaterally placed the student in a different nonpublic school for the 2024-25 school year, the June 2024 IHO decision cannot form the basis for pendency services with respect to funding the home-based, bilingual speech-language therapy services.[15]^, [16]

V. Applicable Standards

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

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

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

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[17]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. Pendency

Turning first to the district's cross-appeal of the IHO's interim decision on pendency, 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. of the 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]).  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 and 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. 46709 [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).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197 [OSEP 2007]).

Initially, the district does not dispute overall that the June 2024 IHO decision—which awarded tuition funding at Manhattan Star Academy (a nonpublic school) and home-based, bilingual speech-language therapy services as relief—formed the basis for the student's pendency services during the instant administrative proceedings (see Answer & Cr. App. ¶¶12-15; IHO Ex. IV at pp. 3-5).  It is also undisputed that, for the 2024-25 school year, the student began attending a State-approved nonpublic school as recommended by a CSE, and therefore, the IHO found that the district was not required to fund the costs of the student's placement at the State-approved nonpublic school pursuant to pendency (see IHO Ex. IV at p. 4).  Instead, the district argues that the IHO erred by ordering the district to fund the costs of three hours per week of home-based, bilingual speech-language therapy services pursuant to pendency, because when the parent moved the student from one nonpublic school to a different nonpublic school she effectively rejected the entire pendency program and cannot now selectively choose the pendency services to implement for the student (see Answer & Cr. App. ¶¶ 12-13).  The district seeks to vacate the IHO's interim decision on pendency.[18]

The district's argument is misplaced.  In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).  The Court further stated that "what 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" (id. at 534).  The Court found that when a parent does so they "effectively 'seek a "veto" over school choice rather than "input"—a power the IDEA clearly does not grant them'"(id.).

Here, the parent did not transfer the student from one nonpublic school to another nonpublic school and seek funding of the new nonpublic school via pendency; rather, the district, through the CSE process, recommended and secured the student's placement for the 2024-25 school year at the State-approved nonpublic school.

A pendency placement includes the general type of educational program including the classes, individualized attention, "and additional services a child will receive" (T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]).  Pendency is not a divisible,  a-la-carte program that may change at any given time as such a practice would undermine the "status quo" concept so prevalent in stay-put jurisprudence (see Application of a Student with a Disability, Appeal No. 21-014, Application of the Dep't of Educ., Appeal No. 19-039; Application of a Student with a Disability, Appeal No. 18-139 cf. N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 [W.D. Wash. Oct. 27, 2015] [finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement] , aff'd sub nom., 842 F.3d 1093 [9th Cir. 2016]).  Thus, because the parent did not move the student to the State-approved nonpublic school, she did not reject the entirety of the pendency placement.

Moreover, based on the evidence in the hearing record, the student's home-based, bilingual speech-language therapy services were truly divisible from the school placement in this instance, having been delivered by the same agency who had provided the services to the student for a portion of the 2023-24 school year (beginning December 2023) wholly separate and apart from the student's special education program at the nonpublic school.  Based on the foregoing, in this instance, the parent did not reject the student's pendency placement (i.e., by moving the student to the State-approved nonpublic school), but invoked pendency to obtain funding for a portion of the student's unilateral placement (i.e., the home-based, bilingual speech-language therapy services) based on the unappealed June 2024 IHO decision.  As such, there is no reason to disturb the IHO's interim order on pendency.

B. Unilaterally-Obtained Services

As previously noted, the student in this matter was placed in a State-approved nonpublic school for the 2024-25 school year through the CSE process, and therefore, the parent does not seek tuition reimbursement from the district for the costs of the student's attendance therein.  Instead, the parent alleged that the district failed to offer the student a FAPE for the 2024-25 school year because the district failed, in part, to recommend bilingual speech-language therapy services and, as a self-help remedy, she unilaterally obtained private services from MichelleRG for the student without the consent of the school district officials, and then commenced an administrative proceeding 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 IEP 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 Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

Here, the parent's request for district funding of unilaterally-obtained services must be assessed under this framework.  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 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).

One of the factors to consider in determining if a private school is appropriate is whether the unilateral placement "at a minimum, provide[s] some element of special education services in which the public school placement was deficient" (Berger, 348 F.3d at 523; see Frank G., 459 F.3d at 365 [describing how the unilateral placement provided services the district acknowledged that the student required, yet failed to provide]).

In this instance, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year because the district, while submitting documentary evidence into the hearing record at the impartial hearing, chose to not present any testimonial witnesses to explain how either the May 2024 IEP or the June 2024 IEP was reasonably calculated to enable the student to make progress or to dispute the parent's claims (see IHO Decision at p. 7).  The IHO indicated that without testimonial evidence, he was unable to make a determination regarding whether the IEPs were sufficient, and based solely on the IHO's review of the May 2024 IEP and the June 2024 IEP, the IHO could not discern why monolingual speech-language therapy was sufficient to meet the student's needs or why bilingual speech-language therapy was not required by the student to make progress during the 2024-25 school year (id.).  Moreover, the IHO found that the district had not disputed the student's need for bilingual speech-language therapy at the impartial hearing (id.).

In its cross-appeal, the district does not challenge the IHO's finding that it failed to offer the student a FAPE for the 2024-25 school year, or any other determination the IHO made in reaching that conclusion, including the determination that the district did not dispute the student's need for bilingual speech-language therapy at the impartial hearing (see generally Req. for Rev.).  By opting to not fully defend the May 2024 IEP or the June 2024 IEP at the impartial hearing, the district cannot now argue, in its cross-appeal of the IHO's decision, that the student did not require bilingual speech-language therapy services, as essentially, such an argument would be the same as arguing that the district offered the student a FAPE.  More specifically, by arguing in its cross-appeal that, contrary to the IHO's finding, that the parent failed to establish the appropriateness of the student's home-based, bilingual speech-language therapy services, and more specifically, that the hearing record lacks evidence that the student required such services to make progress or that the student required that the speech-language services must be delivered at home, the district essentially seeks a finding that the student's IEP, as written without a recommendation for bilingual speech-language therapy, offered the student a FAPE.  In addition, as the parent unilaterally obtained bilingual speech-language therapy services, which at a minimum provided special education services in which the district's program was deficient, a lengthy discussion of the student's needs and the appropriateness of the services delivered is not warranted, but an analysis of those needs and services is set forth below.

1. Student Needs

As previously noted, the hearing record includes a March 2024 bilingual speech-language therapy evaluation, which included a recommendation that the student receive speech-language therapy services from a bilingual provider.  The evaluation took place in the student's home, and according to the evaluator, the student answered "'wh' questions asked in Spanish and English," she "demonstrated an adequate skill for engaging in conversational turns and maintaining the topic" in both Spanish and English, and the student "responded to open questions and presented the ability to elaborate and explain" (Parent Ex. E at p. 7).  Overall, the evaluator found the student displayed "speech sound production skills" that were within "normal limits and supported communicative effectiveness" (id. at p. 8).  The evaluator further found that the student's "speech intelligibility was not a primary area of concern during the evaluation" (id.).  The evaluator noted that during the evaluation, the student spoke both English and Spanish; when addressed in English, the student responded in English, and similarly, when addressed in Spanish, she responded in Spanish; she responded in both English and Spanish during structured tasks; the student could read and write in both English and Spanish, but performed better in "English for literacy tasks"; and, finally, the student was "judged to be an essentially balanced bilingual child" (id. at p. 29).

As noted previously, the evaluator administered selected subtests of both the CELF-4 Spanish edition, as well as the CELF-5 English edition, to the student to assess her receptive and expressive language skills.  According to the evaluation report, the student's overall core language score on the CELF-5 (English) fell within the "mild-average" range, with her receptive and expressive language skills both falling within the "mild-average" ranges (Parent Ex. E at p. 29).[19]  In comparison, the student's overall core language score on the CELF-4 (Spanish) fell within the "very mild-moderate" range, with her receptive and expressive language skills falling within the "mild-moderate" ranges (id. at pp. 29-30).  The evaluator indicated that the student's "verbal narratives were age level expectations in both Spanish and English when provided with the SLAM language elicitation cards, with a relative strength in her English narrative" (id. at p. 30).  With respect to the student's pragmatic language skills, the evaluation reflected that, on the CELF-5 (English), she performed within the "mild-moderate average" range in the classroom and at home (id.).  She also demonstrated an "average strength in understanding other perspectives as well [as] theory of mind" (id.).

Turning to an assessment of fundamental literacy skills through the administration of the IRI, ESI, and PSI, the student performed within the "mild-moderate average range, with her word identification or decoding skills falling within the mild average range, and her spelling skills falling within the moderate range" (Parent Ex. E at p. 30).  On the structured writing subtest of the CELF-5 (English), the student "demonstrated a challenge in communicating her thoughts in an effective manner," and as a result, the evaluator indicated that she could "benefit from improved grammar, vocabulary variation, coherence, style and engagement" (id.).  With respect to reading comprehension assignments and written language samples, the student's skills were "judge[d] to be more proficient in English" (id.).

Overall, the evaluator indicated that, based on the student's testing results, she presented with "mild language delays and moderate literacy delays which w[ould] have negative and secondary effects on her academics," and therefore, the student should continue to receive speech-language therapy services (Parent Ex. E at p. 30).  More specifically, the evaluator recommended that the student receive speech-language therapy from a bilingual provider to address her expressive language skills, social pragmatic language skills, and writing skills (id. at p. 31).

In addition to the March 2024 bilingual speech-language evaluation, the parent testified about the student's need for bilingual speech-language therapy services at the impartial hearing.  As part of her testimony, the parent indicated that the student had "home attendant services seven days a week" and required assistance to "bathe, get dressed, and brush her teeth" (Parent Ex. H ¶ 16).[20]  The parent also testified that both she and the home attendant were "teaching [the student] how to do these tasks herself," but the student needed "verbal prompting to do so" and the "home attendant only sp[oke] Spanish" (id.).

Additionally, the parent explained that, although the student spoke both English and Spanish, the family "only sp[oke] Spanish" within their home, noting that the student's father only spoke Spanish; however, the parent also testified that the student's sister spoke both English and Spanish, her younger brother spoke Spanish but was "just starting to learn English," and the family lived within a community that the parent characterized as "Spanish-dominant" (Parent Ex. H ¶ 17).  The parent, herself, noted that she could "read, write, and speak a decent amount of English," but her "native language [wa]s Spanish" and she required "Spanish translation" to "understand legal proceedings" (id. ¶ 18).

At the impartial hearing, the parent testified that the student was then-currently receiving home-based, bilingual speech-language therapy services (three hours per week) and that she had been receiving such services for the "last two years" (Tr. p. 68).  The parent further testified that the student has had the same speech-language provider for the past two years, but the providers had delivered services "virtually" (Tr. p. 70; see Tr. pp. 75-76).  According to the parent, the student's "bilingual skills in Spanish ha[d] improved a lot" since receiving bilingual speech-language therapy services (Tr. p. 76).  The parent testified that she disagreed with the information in an unidentified evaluation report, which, according to the parent, had indicated that the student was "more fluent in English," because the parent believed that the student was "actually fluent in both languages, Spanish and English" (Tr. p. 79).  The parent also testified that the student had "improved a lot in both languages" and that she "actually [spoke] both of the languages perfect now" (Tr. pp. 79-80).

2. Specially-Designed Instruction

Having reviewed the hearing record to identify the student's needs, the inquiry now turns to whether the parent's unilaterally-obtained, home-based bilingual speech-language therapy services from MichelleRG during the 2024-25 school year provided the student with specially-designed instruction to meet those needs.  As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

In its cross-appeal, the district contends that even if the evidence demonstrates that the student required home-based, bilingual speech-language therapy services, the parent failed to sustain her burden to establish that the services delivered by MichelleRG were appropriate to meet the student's needs.  The district contends that the hearing record lacks sufficient evidence, such as progress reports or evidence describing the services delivered to the student, in order to support such a finding.  The district further contends that, although the CSE recommended 12-month programming for the student, the parent provided no evidence that the student required home-based speech-language therapy services on a 12-month basis.[21]  As a final point, the district argues that the parent failed to present any evidence of the curriculum the student received at the State-approved nonpublic school or how the home-based speech-language therapy services worked in conjunction with the totality of the student's special education program.  For these reasons, the district asserts that the parent is not entitled to reimbursement for the costs of the student's home-based, bilingual speech-language therapy services.

While sparse, the evidence in the hearing record generally supports finding that the bilingual speech-language therapy services delivered by MichelleRG consisted of specially-designed instruction and met the student's needs.

In an effort to sustain her burden of proof, and in addition to submitting documentary evidence, the parent proffered her own testimony and the testimony of the founder and director of MichelleRG (director) (see generally Parent Exs. H-I).[22]  At the impartial hearing, the director testified that her agency had been delivering bilingual speech-language therapy services to the student since December 2023 (three hours per week) (see Parent Ex. I ¶¶ 4-5, 7-8).  She also testified that the student's provider—who had been delivering the student's services since February 2024—was a "licensed speech pathologist" who had a "bachelors (sic) degree (double major) in Spanish Language and Speech and Hearing Sciences" and a "masters of science in speech and language pathology" (id. ¶¶ 8-10).  The director testified that she supervised the student's provider, and indicated that the student "struggle[d] with language-based activities, such as making inferences and predications (sic) and learning new vocabulary using context cues" as well as "breaking down figurative language and c[ould] go off topic" (id. ¶¶ 11-13).  According to the director, the provider needed to give the student "redirection and verbal prompting," and she was working with the student on "increasing [her] spontaneous language so that she c[ould] comment and describe events appropriately" (id. ¶¶ 14-15).  Based on conversations with the student's provider, the director testified that the student continued to need three hours per week of "bilingual speech services to address her speech and language deficits across languages" (id. ¶ 16).

With regard to the March 2024 bilingual speech-language evaluation of the student, the director testified that she supervised the provider—a "licensed speech pathologist with bilingual extension (Spanish)"—who conducted the evaluation and noted that the student presented with "deficits in several areas including receptive [and] expressive language and pragmatic language skills" (Parent Ex. I ¶¶17-18, 20).  The director testified that, given the clinical research noted within the March 2024 bilingual speech-language evaluation report, it was "essential that [the student] receive speech-language therapy bilingually" (id. ¶ 24).  More specifically, the director testified that "'research suggest[ed that] students working in an additive bilingual environment succeed[ed] to a greater extent than those who[se] first language and culture [we]re devalued by their schools and by the wider society,'" and further explained that, based on research, "'additive bilingualism'" referred to when the student's "'first language continue[d] to be developed an[d] the first culture to be valued while the second language [wa]s added,'" as opposed to "subtractive bilingualism in which the second language [was] added at the expense of the first language and culture'" (id.).

Next, the director testified that the student continued to need three hours per week of bilingual speech services to "develop her speech and language needs in both English and Spanish" (Parent Ex. I ¶ 25).  In addition, the director noted that the March 2024 bilingual speech-language therapy evaluation report included "goals for [the student's] speech-language therapy sessions" and the student was "making slow but steady progress towards her goals" (id. ¶ 26).[23]  The director also testified that the student required "scaffolding, pre-teaching, and prompts in order to complete tasks"; "frequent reminders to remain on topic and complete tasks"; the student "benefit[ted] from positive reinforcement and encouragement through her sessions"; and the student continued to "work on verbalizing her frustrations" (id.).

C. Equitable Considerations—Home-Based Speech-Language Therapy Services

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

1. Excessiveness

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement 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 v. Dep't of Educ., 471 U.S. 359, 370-71 [1985] [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] [finding that the "Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).

Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.[24]

The district contends that MichelleRG's hourly rate for bilingual speech-language therapy services is excessive.  The district argues that the hearing record does not fully explain why the agency's rate jumped from $180.00 per hour to $350.0 per hour.  In addition, the district asserts that, based on SRO precedent, the hourly rate awarded, if any, should be limited to the amount paid to the provider plus 27 percent allotted for overhead expenses.

Initially, at the impartial hearing, the parent testified that she was not currently paying for the student's home-based services because the district was funding the services (see Tr. p. 77).

With respect to the hourly rate for the bilingual speech-language therapy services, the director testified that the agency charged $350.00 per hour, which was "within the usual and customary rate for these services" within the geographic area (Parent Ex. I ¶ 27). 

Upon cross-examination, the director testified that, initially for this student, the hourly rate for the bilingual speech-language therapy services had been "set at $180"; however, she further testified that the rate currently charged for these services, "which include[d] an extra extension, [wa]s $350 an hour" (Tr. pp. 86-87).  The director explained that when the agency began providing services to the student in December 2023, the agency had taken the "case as a courtesy, as well as to assist the student in addressing the areas of deficits, as [the agency] never turn[ed] any student down based on an already set rate," which in this matter, was initially set at $180.00 per hour so that was what she "accepted" (Tr. pp. 87-88).  The director then explained that the agency had accepted the initial rate of $180.00 per hour for services "up until we had another hearing with the family" and the hourly rate then increased directly to $350.00 per hour (Tr. pp. 88-90).  The director also testified that the student's provider had been paid "up to 80 percent of that $180" hourly rate (Tr. pp. 91-92).  She also noted that, when the student first began receiving services from the agency, the student had a different provider (see Tr. pp. 92-93).  The director further noted that, in general, the agency would continue to accept an initial rate—i.e., here, $180.00 per hour—until an opportunity arose to "readdress the rate"; however, if no opportunity presented itself, then the agency would "continue to see the student" because the agency did not "turn down students" (Tr. p. 93).

With regard to the hourly rate, the director clarified that if the agency charged $180.00 per hour, the provider would receive 80 percent of the $180.00 per hour and the remaining 20 percent of the hourly rate was applied to "cover other costs for that case" (Tr. p. 97).  According to the director, the remaining 20 percent of the hourly rate covered expenses such as "professional development" and "meeting with the clinician to go over supervision" (Tr. pp. 98-99).  When questioned by the IHO, the director added that, at the increased rate of $350.00 per hour, the provider would receive "at least 70 percent" of the hourly rate (Tr. pp. 108-09).  The director also testified that a portion of the $350.00 per hour rate covered the agency's costs, which included "professional development," "insurance," "salaries to clinical directors," and "supervision" of the student's provider (Tr. pp. 109-10).

At the impartial hearing, the district submitted two documents into the hearing record as evidence with respect to an appropriate hourly rate for the student's bilingual speech-language therapy services: the AIR study report and a rate schedule (see generally Dist. Exs. 18-19).  Generally, the AIR study report does not include any particularly relevant information with regard to hourly rates for speech-language therapy providers, as it focuses primarily on rates for SETSS providers (see generally Dist. Ex. 18).  However, to the extent that the AIR report draws data published by the United States Bureau of Labor Statistics (USBLS), a U.S. government agency, it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 (N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  With respect to overhead costs, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 28.2 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC)—June 2024, available at https://www.bls.gov/news.release/archives/ecec_09102024.pdf).[25]

As noted, with regard to related services, the district offered a rate schedule (see generally Dist. Ex. 19).  However, I will take judicial notice of the USBLS data for May 2024, which reported hourly wages specifically for speech-language pathologists and occupational therapists, and will be considered below.

The USBLS indicated that in May 2024 data hourly wages for "Speech-Language Pathologists" in the New York City metropolitan region ranged from $35.92 in the 10th percentile, $41.49 in the 25th percentile, $60.74 in the median, $66.02 in the 75th percentile, to $79.59 in the 90th percentile.[26]  Taking into account 28.2 percent for indirect costs as described above, an hourly rate to be charged for speech-language therapy based on the USBLS data would range from $43.04 to $110.85 (median $84.60), all of which are well below the $350.00 per hour charged by MichelleRG.  Therefore, I find the contracted rate to be excessive.  While some indirect or overhead cost is reasonable, I will calculate the rate for the speech-language therapy based on rate paid to the provider of $144 per hour in accordance with the testimony of the director, which is still well over the 90th percentile rate identified in the USBLS data but which could be accounted for as the student received bilingual speech-language therapy services which may warrant an increased hourly rate.[27]  When using the salary of the speech-language therapist ($144 per hour) and calculating for overhead costs equating to 28.2 percent of the overall rate, an overall potentially reasonable rate for speech-language therapy services, with the provider making $144 per hour, an amount higher than what would be expected based on the USBLS data, would be $200.56 per hour.  Therefore, I find that the awarded amount for speech-language therapy services should be limited to $200.56 per hour.

D. Compensatory Educational Services

Finally, the parent argues that the IHO erred by ordering the district's implementation unit to set the hourly rate for the student's compensatory educational services award of 30 hours of SETSS.  The parent further argues that the IHO erred by ignoring the only evidence of a specific agency's hourly rate for SETSS, namely, $150.00 per hour through Kid Success, Inc.  As relief, the parent seeks an order directing the district to fund the student's SETSS at a rate of $150.00 per hour by Kid Success, Inc.

The district argues to uphold the IHO's decision to delegate the rate-setting for the SETSS award to the implementation unit, noting that SROs have upheld such awards conditioned on rates paid by the implementation unit.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  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] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also E. Lyme, 790 F.3d at 456; 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]).  Likewise, SROs have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]).  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 fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, the cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).  In cases involving compensatory education as relief, it is problematic to place the burden of production and persuasion on the district to establish appropriate relief when the parent, as in this matter, appears to have already unilaterally chosen the provider—i.e., Kid Success, Inc.—and is the party in whose custody and control the evidence necessary to establish appropriateness resides.  To that end, the parent in this matter had not yet obtained SETSS from Kid Success, Inc. at the time of the impartial hearing, but presented the agency's hourly rate schedule as evidence for the IHO to consider when awarding compensatory educational services (see Parent Ex. M).  Because the parent had not yet obtained SETSS for the student from Kid Success, Inc., the hearing record is devoid of any evidence with respect to the appropriateness of the SETSS to be delivered by the agency (see generally Tr. pp. 1-120; Parent Exs. A-N; Dist. Exs. 2; 4-6; 9-10; 12-14; 17-19; IHO Exs. I-IV).  In addition, the IHO found that the parent's evidence of the agency's hourly rates was not persuasive, and did not rely on this evidence in formulating the compensatory educational services award (see IHO Decision at pp. 12-13).  As a result, the IHO directed the district's implementation unit to set a reasonable market rate for such award and for the parent to select a provider (id. at pp. 13, 15).

Notably, the IHO's order directing the district to fund compensatory educational services consisting of 30 hours of SETSS does not specify who is to provide the compensatory education services or the actual market rate for services (see IHO Decision at p. 15).  By arguing in the request for review to overturn the IHO's decision and to direct the district to fund the compensatory educational services by Kid Success, Inc. at a rate of $150.00 per hour, the parent is effectively engaged in an end run around bearing the burden of proof for privately-obtained services.  The Office of State Review has many times indicated that it may not be appropriate in the administrative due process forum to continue to place the burden of proof regarding compensatory education relief on the district in an administrative due process proceeding, and no Court or other authoritative body in this jurisdiction has addressed the topic to date (Application of a Student with a Disability, Appeal No. 24-213; 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, it is appropriate to place the burden of production and persuasion on the parent with regard to the adequacy of the proposed relief.  In most cases, the district, as the party responsible to implement special education services in the first place, should be directed to carry out the remedial relief ordered by an administrative hearing officer.

Therefore, in view of the forgoing, the IHO lacked an appropriate evidentiary basis to direct the district to fund a bank of compensatory educational services for the student to be provided by unknown providers at unknown costs.  The district is instead directed to implement the student's compensatory educational services award.

VII. Conclusion

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated December 1, 2024, is hereby modified to the extent that the IHO ordered the district's implementation unit to set the hourly rate to fund the student's compensatory educational services award consisting of 30 hours of SETSS; and,

IT IS ORDERED that the district shall provide the student with 30 hours of SETSS as compensatory educational services; and,

IT IS FURTHER ORDERED that the IHO's decision dated December 1, 2024, is hereby modified to the extent that the IHO ordered the district to fund the student's home-based, bilingual speech-language therapy services (three hours per week) at a rate not to exceed $350.00 per hour; and,

IT IS FURTHER ORDERED that the district shall fund the costs of the student's home-based, bilingual speech-language therapy services (three hours per week) delivered by MichelleRG for the 2024-25 school year at a rate not to exceed $200.56 per hour, upon the presentation of proof of services delivered to the student.