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 his request that respondent (the district) fund the costs of his son's private services delivered by Enhanced Support Services, Inc. (Enhanced) for the 2023-24 school year and fund a bank of compensatory education services.  The appeal must be sustained in part.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.  Briefly, a CSE convened on May 13, 2016, determined that the student was eligible for special education as a student with a speech or language impairment, and developed an IESP for the student (Parent Ex. B at p. 1).  As memorialized in the IESP, the CSE recommended the student receive  three 30-minute sessions per week of individual speech-language therapy in Yiddish, three 30-minute sessions per week of individual occupational therapy (OT) in English, and one 30-minute session per week of individual counseling services in Yiddish beginning on or around June 1, 2016 (id. at pp. 1, 11).  In addition, the CSE recommended that the student receive 10 periods per week of group special education teacher support services (SETSS) in Yiddish (id.).[1]^, [2]^, [3]  There is no information in the hearing record regarding any educational planning that took place for the student after the May 2016 CSE meeting leading up to and including the 2023-24 school year.[4]

On May 19, 2023, the parent completed and signed a form letter on district letterhead advising that the student would be parentally placed in a nonpublic school and requesting special education services from the district for the 2023-24 school year (eighth grade) (Parent Ex. C).

On August 16, 2023, the parent signed a "parent service contract" with Enhanced (Parent Ex. D).  According to the contract, Enhanced would "make every effort to implement the recommended [IESP] services with suitably qualified providers for the 2023-24 school year" (id.).  The contract further specified that Enhanced intended to provide SETSS during the 2023-24 school year at a rate of $195 per hour (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  Specifically, the parent alleged that the May 2016 IESP was outdated and had expired (id. at p. 2).  The parent asserted that the delay in reconvening a CSE meeting and recommending proper placement and services for the student was a denial of a FAPE for the 2023-24 school year (id.).  In addition, the parent alleged that the student was denied a FAPE because the parent had been unable to locate a provider willing to accept the district rates on his own accord and the district had failed to implement its own recommendation for the 2023-24 school year (id.).  As relief, the parent requested funding for the "program outlined in the IESP dated 5/13/2016" at the provider's contracted rates together with a bank of compensatory periods for all services that the student was entitled to for the 2023-24 school year (id. at p. 3).

In a due process response dated August 27, 2024, the district generally denied the parent's allegations and asserted multiple affirmative defenses (IHO Ex. I).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO (IHO I) with the Office of Administrative Trials and Hearings (OATH) with a prehearing conference on September 5, 2024, and a hearing date devoted to the merits on October 1, 2024 (Tr. pp. 1–71).  At the outset of the hearing, IHO I orally denied the district's previously filed motion to dismiss based on a lack of subject matter jurisdiction (Tr. pp. 26-27).[5]  After the hearing, a different IHO (the IHO) with OATH was appointed to the matter and reviewed the hearing record to render a decision (see IHO Decision at p. 3 & n.5).

In a written decision dated January 14, 2025, the IHO concluded the district denied the student a FAPE by failing to implement the student's May 2016 IESP during the 2023-24 school year (IHO Decision at p. 7).  However, the IHO determined that there was insufficient information presented at the hearing to meet the parent's burden of proving the appropriateness of the SETSS provided by Enhanced (id. at p. 8).  The IHO concluded that the sole parent witness, the service coordinator at Enhanced, lacked firsthand knowledge of the student; her knowledge being derived from the supervisor's reports (id.).  In addition, the service coordinator acknowledged that the goals outlined in the May 2016 IESP, such as "fingerpainting," were no longer age-appropriate for the student and she could not explain why ten periods of SETSS per week remained appropriate for the student as the student's current needs were unclear (id.).  The IHO noted that the (Enhanced) progress report from 2024 was included as evidence, but did not provide details about any assessments of the student conducted at the start of the 2023-24 school year (id.; Parent Ex. F).  Further, the IHO noted that a review of the SETSS progress report revealed that the student continued to perform significantly below age-level expectations, suggesting that updated evaluations were necessary to identify the reasons for the student's delays and to determine what services were no longer appropriate (IHO Decision at p. 9).  Finally, the IHO found that the record did not support the conclusion that an IESP containing goals for fingerpainting remained suitable for the student (id.).  If such an IESP was no longer appropriate, the IHO concluded that it could be reasonably inferred that the services provided by Enhanced were not appropriate either (id.).

Based on the forgoing reasons, the IHO denied the parent's requested relief and directed the CSE to conduct updated evaluations and/or assessments of the student and to reconvene to create an IESP based on such evaluations/assessments (IHO Decision at p. 9).

IV. Appeal for State-Level Review

The parent appeals, alleging that the Enhanced provider's credentials and the progress report evidenced that the SETSS delivered to the student were specifically tailored to his needs.  In addition, the parent asserts that the IHO incorrectly concluded that, just because the services provided to the student were based on an outdated IESP, the quality of services provided to the student were also be outdated.  The parent asserts that the provider used a multitude of methods specifically tailored to the student's learning style and interests.  Next, the parent asserts that the May 2016 IESP mandated ten periods per week of SETSS and consequently, the parent need not, as suggested by the IHO, justify why the ten periods per week remained appropriate for the student.  Finally, the parent asserts that, while the IHO did not weigh equitable considerations in the matter, there are no reasons to decrease the provider's $195 per hour rate.

In an answer, the district asserts that the IHO correctly found that the parent failed to prove the services provided by Enhanced during the 2023-24 school year were appropriate for the student.  In addition, the district asserts that the hearing record supports that the rate charged by Enhanced was excessive.  Finally, the district argues that equitable considerations do not weigh in favor of the parent's requested relief because the parent failed to submit a ten day notice to the district advising that he intended to engage in self-help and unilaterally obtain special education services for the student for the 2023-24 school year.

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]).[6]  "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.).[7]  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

At the outset, neither party appeals from the IHO's finding that the district failed to offer the student a FAPE for the 2023-24 school year and the IHO's award directing the CSE to conduct updated evaluations of the student and reconvene to create an IESP based on the updated evaluations (IHO Decision at p. 9).  Accordingly, these findings and orders have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

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

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[8]  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).

In this case, in reaching the determination that the SETSS Enhanced provided were not appropriate, IHO noted that the May 2016 IESP was outdated, and the student had not been evaluated in several years, which made it difficult to discern the student's needs for the 2023-24 school year at issue.  However, to the extent the IHO faulted the parent for not identifying the student's current needs, such a rationale has been found to improperly switch the responsibility for identifying the student's needs from the district to the parent (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  Therefore, the IHO should not have held the absence of any updated evaluative information about the student against the parent or as a factor in concluding that the SETSS from Enhanced were not appropriate.

The IHO is correct, however, that, given its age, the May 2016 IESP would not necessarily provide an accurate statement of the student's needs seven years later, leading into the 2023-24 school year (see generally Parent Ex. B).  Briefly, however, the May 2016 IESP reflected that, while the student had made some academic improvements, he continued to function "significantly below grade level in multiple areas," with decoding skills approximately at a kindergarten level and difficulties in writing, math, attention, and focus (id. at p. 1).  As to speech and language, the May 2016 IESP reported that the student's difficulties in receptive and expressive skills, as well as pragmatics, continued to "negatively impact academic performance, as well as his ability to communicate effectively" and interact with peers (id.).  With regard to social development, the May 2016 IESP reported that the student had made some gains, but could lose interest easily (id. at p. 2).[9]  According to the May 2016 IESP, the student was reportedly in good health with age-appropriate gross motor and daily living skills (id.).  The IESP further indicated that the student continued to exhibit fine motor difficulties particularly in the area of writing (id.).  The May 2016 IESP recommended the following to support the student's management needs: small group instruction, modeling, visual and verbal cues, positive reinforcement, and continuation of SETSS and speech and OT (id.).

Turning to the unilaterally obtained services, the hearing record includes the parent's contract with Enhanced, a July 2024 progress report completed by the student's special education provider from Enhanced, a document reflecting the provider's credentials, and the testimony of the service coordinator from Enhanced (Tr. pp. 40-59; Parent Exs. D-G).  As noted above, the parent entered into a contract with Enhanced in August 2023 to provide the student with the services recommended in the May 2016 IESP for the 2023-24 school year (Parent Ex. D).  However, according to the hearing record, Enhanced only provided the student with 10 hours per week of SETSS (Parent Exs. F at p. 1; G at ¶ 9).  The service coordinator testified that Enhanced provided the student's SETSS in a "1:1 setting" in his "mainstream school" during school hours (Tr. p. 43-44; Parent Ex. G ¶¶ 10, 13).[10]  The SETSS were delivered by a provider certified to teach students with disabilities (Parent Exs. E; G ¶ 11).

The July 2024 student progress report sets forth a summary of the student's levels of performance as of the end of the 2023-24 school year, along with statements of the student's progress, and reference to strategies and supports provided to the student to address his areas of need (see Parent Ex. F).

According to the July 2024 student progress report, the student continued to have poor working memory, language skills, and reading skills, as well as difficulty with attention and focus, which impacted his performance in a general education setting (Parent Ex. F at p. 1).  The SETSS provider estimated that the student was functioning at a mid-fourth-grade level in decoding and was demonstrating some progress in this area (id.).  The provider listed interventions used to help the student in the area of decoding, including visual aids, tactile manipulatives, and magnet cards (id.).  The SETSS provider indicated the student's word analysis skills had improved which resulted in improved accuracy and fluency as well as comprehension (id.).  More specifically the student used his combined knowledge of all letter-sound correspondences, syllabication patterns and morphology to accurately read unfamiliar words in and out of context through interventions using visual aids and tactile manipulatives (id.).  The provider also noted, however, that the student continued to have difficulty reading text with purpose and understanding and difficulty reading prose and poetry with accuracy and appropriate rate (id.).

With regard to reading comprehension, the SETSS provider estimated the student's reading comprehension level was approximately fifth grade (Parent Ex. F at p. 1).  To address the student's needs in this area, the provider delivered "step-by-step instruction" using graphic organizers, questioning techniques, and read-alouds (id.).  The provider noted that the student was improving in identifying key ideas and details, integrating knowledge and ideas, and being able to provide a summary of a text and determine the main idea with supporting details (id.).  Additionally, the provider indicated that the student made progress in locating information in a text and citing textual evidence and that his ability to analyze two or more texts that provided conflicting information on the same topic was emerging (id.).  However, the provider noted that the student struggled with evaluating arguments and claims in a text and with integrating information from multiple texts on the same topic to write or speak about the subject knowledgeably (id. at pp. 1-2).

The July 2024 progress report further indicated that the student's math skills were estimated to be at an upper fourth grade level (Parent Ex. F at p. 2).  The provider used "base ten blocks" to assist the student, as well as providing "step-by-step instruction" (id.).  The provider opined that the student had made moderate progress (id.).  The provider reported that the student improved his ability to multiply and divide fluently within the 12 times tables; however, he continued to demonstrate difficulties in long division and with fractions (id.).  Additionally, the provider reported that the student struggled with word problems noting that because the student's comprehension was poor, it was difficult for him to identify what operations to use (id.).

With regard to social/emotional needs, the July 2024 student progress report indicated that the student exhibited deficits in his social/emotional skills and moderate delays in compliance and emotional regulation (Parent Ex. F at p. 2).  The progress report further indicated that the student was showing moderate progress with a behavior management plan specifically noting his improvement in complying with teacher requests that he agreed with (id.).  Additionally, the progress report indicated that the student also exhibited "moderate growth" in emotional regulation and noted that social stories were used to improve skills in this area (id.).  Finally, the provider reported that the student made progress labeling emotions but continued to have difficulty verbalizing his feelings (id.).  In contrast, the progress report indicated the student continued to struggle with complying with school rules and principal requests with which he disagreed (id.).  The provider opined that one-on-one support is helpful for the student "due to his lack of focus and ability [sic] to get distracted often" (id.).

With regard to speech and language, the July 2024 student progress report indicated that the student demonstrated strengths in answering yes/no questions and retelling stories or events (Parent Ex. F at p. 2).  The provider further reported that the student demonstrated weaknesses in expressive language such as using appropriate facial expressions, grammar and maintaining conversations (id.).  Further, he reported that, the student had strengths in following one-step directions and learning new words but struggled with understanding new concepts (id.).

In her decision, the IHO determined that the May 2016 IESP, which contained goals for fingerpainting did not remain suitable for the student (IHO Decision at p. 9).  If such an IESP was no longer appropriate, then, the IHO concluded, it could be reasonably inferred that the unilaterally obtained services recommended in the IESP were not appropriate as well (id.).  However, while the parent's contract with Enhanced generally referred to the agency providing services recommended in an IESP, a review of the July 2024 progress report demonstrates that the provider was not working on the goals from the May 2016 IESP during the 2023-24 school year.

The July 2024 progress report included annual goals targeting the student's needs in the areas of reading, writing, and mathematics; on its face, it is unclear whether the goals were for the 2023-24 or 2024-25 school year (Parent Ex. F at p. 3).  Nevertheless, in his affidavit testimony, the educational coordinator indicated that the progress report was "an accurate representation of what [the provider] ha[d] been working on with [the student], including goals, for the 2023-24 school year" (Parent Ex. G ¶ 15).

The IHO also noted that the student had been deemed eligible for special education as a student with a speech or language impairment, yet noted that the service coordinator could not provide information regarding the degree to which the student's speech-language skills were being addressed (IHO Decision at p. 9; see Parent Ex. B at p. 1).  Although the May 2016 IESP indicated the student's speech-language difficulties negatively impacted his academic performance and ability to communicate effectively, the parent did not unilaterally obtain speech-language therapy for the student (see Parent Exs. B; F).  However, a parent need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  Rather, the program as a whole must be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04).

Here, as described above, the SETSS provider appeared to address some of the student's speech-language needs insofar as the provider described the strengths and deficits in the area of speech-language (see Parent Ex. F at p. 2).  In addition, the progress report included goals to, for example, read text with purpose and understanding, to evaluate arguments in a text, to integrate information from several texts, and read prose and poetry orally with accuracy and appropriate rate, which may have addressed receptive and expressive language weaknesses described in the report (id. at pp. 2-3).  Similarly, the parent did not obtain counseling services for the student, but the SETSS progress report indicated the student had a behavior management plan and indicated the SETSS provider employed social stories as a means of improving the student's emotional regulation (id. at p. 2).  The parent did not obtain OT services for the student but, as mentioned above, the district did not evaluate the student and his fine motor and/or sensory needs were unknown.  Thus, under the specific circumstances, the lack of parentally obtained related services do not weigh against a finding of appropriateness of the unilaterally obtained programming as a whole when taking into account the totality of the circumstances.

As noted above, the IHO relied heavily on the lack of information in the hearing record available to understand the student's needs, particularly at the beginning of the school year before the private services commenced, finding that, as a result, it was not possible to establish the student's progress or whether the services identified by the parent were specially designed to meet the student's needs (see IHO Decision at pp. 8-9).  That gap in the evidence, however, was attributable to the district's failure to, for example, evaluate the student and develop an updated educational plan (see A.D., 690 F. Supp. 2d at 208 ).[11]

As such, the IHO's determination that the unilaterally obtained SETSS were not appropriate based on the lack of updated evaluative information regarding the student was in error as the record demonstrates that the parent established that the unilaterally-obtained SETSS delivered by Enhanced during the 2023-24 were appropriate.

B. Equitable Considerations

The final criterion for a reimbursement award is that the parent's 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"]).

As to the district's argument that the parent failed to provide 10-day notice, reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

Here, the district correctly notes that the hearing record does not include evidence that the parent provided the district with 10-day written notice stating the parent's intent to unilaterally obtain private services. Ultimately, however, there was no argument or allegation during the impartial hearing regarding the lack of 10-day notice.  Given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record, at this juncture, it would be imprudent to reduce the award of district funding for the unilaterally-obtained services based solely on the absence of a 10-day notice.[12]

The district also argues that the rate charged by Enhanced was excessive.  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., 758 F.3d at 461 [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).

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.  Here, the district solicited testimony from the service coordinator at Enhanced regarding the base rate paid to the provider as compared to the overall hourly rate charged by Enhanced and argues that the overhead charged by the agency was excessive (see Tr. pp. 41-43); however, the district did not present any evidence at the impartial hearing regarding a reasonable market rate or present any evidence or argument regarding an appropriate source for such information, to which the parent could respond.  Under the circumstances, given the underdeveloped state of the hearing record, I decline to exercise my discretion to find the rate charged by Enhanced to be excessive.

C. Compensatory Education

Regarding the parent's request for a bank of compensatory hours for speech-language therapy, OT, and counseling services that the student missed during the 2023-24 school year, I find no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parent, especially here where the parent entered into a contract with Enhanced to deliver services set forth in the May 2016 IESP during the 2023-24 school year, there is no further development of the record explaining why such services were not provided, and as discussed above, the parent established that the unilaterally obtained programming was appropriate notwithstanding that he did not arrange for these related services (see, e.g., Application of the Dep't of Educ., Appeal No. 25-027).  There is no other support in the hearing record for an award of compensatory education.

VII. Conclusion

In summary, the evidence in the hearing record establishes that the parent met his burden to prove that the unilaterally obtained SETSS delivered to the student by Enhanced during the 2023-24 school year were appropriate and that equitable considerations support an award for funding of those services.  Further, the hearing record does not provide a prudent reason to reduce the hourly rate of $195 per hour.  Finally, there is no basis in the record to support an award of a bank of compensatory for related services missed by the student during the 2023-24 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated January 14, 2025, is modified by reversing those portions which determined that the parent failed to meet his burden of proving the appropriateness of the SETSS delivered to the student by Enhanced during the 2023-24 school year; and

IT IS FURTHER ORDERED that the district shall fund the cost of SETSS provided to the student by Enhanced during the 2023-24 school year at the contracted rate of $195 per hour upon proof of delivery.