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.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the cost of their son's private services delivered by Yes I Can Services Inc. (Yes I Can) for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which determined that the parents met their burden of proving the appropriateness of the student's private services.  The appeal must be sustained in part.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case will not be recited in detail.  At all relevant times, the student was parentally placed at a nonpublic school (see Parent Ex. B at p. 12).

On May 11, 2022, a CSE convened for an initial meeting, determined the student to be eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 1, 2022 (see Parent Ex. B at pp. 1, 12).[1]^, [2]  The May 2022 CSE recommended that the student receive five periods per week of special education teacher support services (SETSS) in a group setting, as well as two 30-minute sessions per week of individual speech-language therapy (id. at p. 10).

On May 24, 2023, the parents, through their attorney, sent an email to the district in which they advised that the student was placed in a nonpublic school and requested that the district provide the student with special education services during the upcoming 2023-24 school year (see Parent Ex. C).

On August 6, 2023, one of the parents signed a contract with Yes I Can, a private educational agency, under which the agency would provide the student with SETSS and "Speech Services" (see Parent Ex. D at pp. 1-2).  Under the contract's terms, the parents are responsible for any fees not funded by the district at rates of $200.00 per hour for SETSS and $245.00 per hour for speech therapy (see id. at pp. 2, 4).

During the 2023-24 school year, the student received five hours per week of SETSS and two 30-minute sessions per week of speech-language therapy from Yes I Can (see Parent Ex. E at pp. 1, 5; I at pp. 1, 3).

A. Due Process Complaint Notice

In a due process complaint notice dated June 12, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 1).[3]  Specifically, the parents alleged that the district failed to fully and timely evaluate the student in all areas of suspected need; failed to convene a CSE and develop an IESP for the 2023-24 school year; denied the parents their right to meaningfully participate in the educational planning process; and failed to implement the services recommended in the May 2022 IESP for the 2023-24 school year (id. at pp. 2-3).  The parents requested pendency in the May 2022 IESP (id. at p. 3).  As relief, the parents requested direct funding of the cost of five hours per week of SETSS and two 30-minute sessions of one-to-one speech-language therapy from "provider[s] of the [p]arents' choosing at the provider[s'] stated rate[s]" (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on July 18, 2024 and concluded the same day (see Tr. pp. 1-58).  Both parties offered exhibits which the IHO admitted into evidence (see Tr. pp. 10-12; Parent Exs. A-I).  The parents' exhibits included an affidavit from the associate director of educational services at Yes I Can, who appeared for cross-examination during the hearing (see Tr. pp. 10-12, 14-26; Parent Ex. G).  The educational director at Yes I Can also testified at the district's request (see Tr. pp. 27-41).

In a decision dated August 26, 2024, the IHO found that the district conceded its failure to "timely convene a CSE meeting, develop an appropriate program[,] or implement an IESP" (IHO Decision at p. 4).[4]  Thus, according to the IHO, the district conceded that it denied the student "equitable access to an appropriate education" (id. at p. 5).  Next, the IHO found that the parent presented "sufficient evidence that the [s]tudent received appropriate services" from Yes I Can, as the "[p]arent presented progress reports, service agreements, and provider testimony" (id. at p. 4).  Finally, the IHO found that the "[p]arent cooperated with the [d]istrict by providing timely notification of intent to secure . . . services" unilaterally (id.).

Nevertheless, the IHO denied the requested relief, namely, funding of the cost of the services provided by Yes I Can, reasoning that IHOs lack subject matter jurisdiction over matters related to IESP implementation and provider rates (see IHO Decision at pp. 4-5).  In the alternative, the IHO determined that "the IHO would have upheld the [d]istrict's rates," citing the SRO's decision in Application of a Student with a Disability, Appeal No. 24-222 (id. at p. 4).  Although the IHO dismissed "matters related to implementation and rate" with prejudice, the IHO ordered that, "[i]f [the] [s]tudent's triennial evaluations are dated more than three years prior to the date of the complaint, the [d]istrict shall re-evaluate [the] [s]tudent in all areas of suspected disability;" and the district shall convene a CSE to develop an updated educational program for the student (id.).

IV. Appeal for State-Level Review

The parents appeal.  The district cross-appeals.  The parties' familiarity with the issues raised in the parties' respective pleadings is presumed and, therefore, the allegations and arguments will not be recited here in detail.

In their request for review, the parents ask that an SRO excuse the untimely service and filing of the notice of intention to seek review and request for review, arguing that the IHO's failure to provide the parents with a copy of the decision until January 14, 2025, 70 days after the decision date, constituted good cause for the delay.[5]  The parents contend that the IHO erred in applying the Burlington/Carter framework rather than a compensatory education framework; in dismissing the parents' claim relating to IESP implementation for lack of subject matter jurisdiction; and in determining, alternatively, that "the [d]istrict's rate stands" (IHO Decision at p. 4).

In its answer with cross-appeal, the district takes no position regarding the delayed initiation of the parents' appeal but argues that the appeal should be dismissed because the request for review was not properly verified.[6]  The district further contends that the parents' appeal should be dismissed for lack of subject matter jurisdiction.  Alternatively, the district contends that the IHO erred in determining that the parents met their burden of proving that the unilaterally obtained services were appropriate.

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

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

VI. Discussion

A. Subject Matter Jurisdiction

As a threshold matter, it is necessary to address the parties' dispute concerning subject matter jurisdiction.  Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues that federal law confers no right to file a due process complaint regarding services recommended in an IESP and New York law confers no right to file a due process complaint regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

Initially, the district and, to some extent, the IHO have treated the parents' claims as related to implementation of the student's IESP.  Although the due process complaint notice alleged that the district did not implement the recommended services (Parent Ex. A at pp. 1-2), this is not a case in which the parents' claim was solely related to the implementation of an IESP.  Review of the due process complaint notice shows that the parents also alleged the district's failure to convene a CSE to develop and IESP for the 2023-24 school year (id.).  Accordingly, there can be no dispute that the IHO had jurisdiction to address that aspect of the parents' due process complaint notice.

In addition, even if this matter did solely involve implementation of the student's IESP during the 2023-24 school year, such a claim is subject to due process.  In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

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

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

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[9]

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

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[10]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.

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

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago and then dramatically intensified to tens of thousands of due process filings per year within certain regions of this school district in the last several years.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[11]

In its answer and cross-appeal, the district contends that under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims.  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

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

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[12]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed as further described below.

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

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" (id. at p. 7).[13]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

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

B. Legal Standard

Before reaching the substance of the parties' arguments regarding the unilaterally obtained services, some consideration must be given to the appropriate legal standard to be applied.  The parents contend that the IHO erred in applying the Burlington/Carter framework rather than a compensatory education framework, while the district contends that the Burlington/Carter three-pronged test is the correct legal standard.

In this matter, the student has been parentally placed in a nonpublic school and the parents do not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parents 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, they unilaterally obtained private services from Yes I Can 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 parents' 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]).[14]  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).

Although use of the Burlington/Carter framework, for a matter involving an IESP developed pursuant to State Education Law § 3602-c rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, more analogous framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district.  I also note that IHOs have not approached the question with consistency.  As explained below, I find the alternative approaches insufficient to address the factual circumstances in these cases.

The parents draw a distinction between "requests for funding of undelivered IESP services" and requests for tuition reimbursement (Req. for Rev. at p. 8).  This distinction is of little consequence, however.  A district's delivery of a placement and/or services must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]).  Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE.  Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]).  The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington/Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).

The most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those 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., 746 F.3d at 76; R.E., 694 F.3d at 184-85).  Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

Based on the foregoing, I find that the IHO applied the appropriate legal standard to assess whether the parents were entitled to the relief sought.

C. Unilaterally Obtained Services

Turning to the merits, the following disputed issues remain to be addressed: whether the student received appropriate services from Yes I Can during the 2023-24 school year; and, if so, whether equitable considerations support the parents' request for relief.[15]  First, the federal standard for evaluating the appropriateness of unilaterally obtained services 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, 773 F.3d at 386; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. The Student's Needs

Next, a review of the information available in the hearing record concerning the student's needs and then-current functioning will provide the context needed to assess whether the unilaterally obtained services were appropriate for the student.

The hearing record includes what is apparently the student's first and only IESP, created on May 11, 2022 (Parent Ex. B at p. 1).[16]  According to the IESP, the student "presented with weaknesses in various areas of learning, which impact[ed] his ability to make progress academically" (id. at p. 7).  More specifically, the May 2022 IESP described the student as a bilingual Yiddish speaking student with delays in oral motor skills, articulation, and both expressive and receptive language skills (id. at p. 1).

In the area of cognition, the May 2022 IESP reported that the student made progress with identifying colors, as well as common objects and some of their uses (Parent Ex. B at p. 2).  According to the IESP, the student rote counted from one to ten; counted five objects using one-to-one correspondence; found incongruous/out of place items; matched, identified, and named opposite pairs; matched and labeled colors; and matched and identified shapes (id.).  However, the IESP also reported that the student "ha[d] been unsuccessful with identifying shapes and opposites"; was "unable to describe an event that occurred to him"; and played symbolically but could not "sequence events during play" (id.).  The student's teachers reported that the student had difficulty with answering questions; and the teachers struggled with gauging whether the student was grasping a concept (id.).

According to the May 2022 IESP, the student's special education itinerant teacher (SEIT) provider reported that the student enjoyed listening to stories, was a visual learner, and learned best through pictures (Parent Ex. B at p. 2).  In reading, the student reportedly "recognize[d] and name[d] some upper/lowercase letters of the alphabet, print[ed] some upper and lower-case letters, isolate[d] and pronounce[d] the initial sounds in words[,] and recognize[d] his own name in print" (id.).  According to the IESP, the parent reported that the student "kn[ew] the Hebrew alphabet[] with 90% accuracy" but had not learned the English alphabet and could not write (id.).  Regarding math, the IESP reported that the student was unable to rote count from one to twenty or identify and write numbers one to ten (id.).  The SEIT provider also reported that the student was unable to "identify a problem and try to solve it independently" (id.).

Regarding speech and language development, the May 2022 IESP reported that, according to a July 2020 speech update, the student had delays in articulation, as well as receptive and expressive language skills (Parent Ex. B at p. 2).  Receptively, the student made simple references, discriminated between sounds and words, and sorted objects into categories (id.).  However, the IESP also reported that the student struggled with concepts such as possessives, negatives, and identifying the object that did not belong (id. at p. 3).  Receptive language goals indicated in the IESP were identifying similarities and differences and understanding positions and direction (see id. at p. 4).

According to the May 2022 IESP, the student's "weak" oral motor skills affected his intelligibility, and peers had trouble understanding him (see Parent Ex. B at p. 3).[17]  The May 2022 IESP reported that the following modes of therapeutic intervention would be used: articulation drills; games; books; manipulatives; songs; worksheets; phonological processes; picture cards/fun decks; and modeling and visual cue prompts to facilitate mastery (id.).

Regarding articulation, the May 2022 IESP reported that the student produced clusters in multisyllabic words and /sh/sounds but "ha[d] limited the use fronting and backing" (Parent Ex. B at p. 2).  The IESP reported that the student had difficulty producing /r/, /h/, /v/, /g/, and /s/ sounds; and the student tended to mix up voice/voiceless sounds of /k/g/ and /p/b/ (id.). The IESP further reported that, while the student struggled to segment words, manipulate sounds in words, and be "intelligibly understood by others," he could discriminate between sounds and words and self-correct articulation errors without difficulty (id. at pp. 2-3).

According to the May 2022 IESP, the student had difficulty with expressive language skills such as maintaining a topic, answering questions on target, and describing an object and its function (Parent Ex. B at p. 3).  The IESP characterized the student's vocabulary as "very limited" and reported that the student had difficulty finding "the right word to say" (id.).

Regarding the student's social development, the May 2022 IESP reported that the student initiated interactions with peers, shared with peers, played cooperatively, and waited his turn (Parent Ex. B at p. 5).  However, the IESP also reported that the student demonstrated challenges in self-regulation and "display[ed] frustration behaviors throughout the day" (id.).  More specifically, the May 2022 IESP reported that the student had difficulty naming his emotions; expressing his feelings, needs, opinions, and desires; "refrain[ing] from tantruming when angry;" and "refrain[ing] from hurting others when upset" (id.).

The May 2022 IESP described the student as "easily distracted by outside stimuli," having difficulty attending, focusing, and "sitting for longer periods of time" (Parent Ex. B at p. 5).  According to the IESP, these challenges "hinder[ed] [the student's] ability to participate in classroom activities" such as answering questions, offering information, or singing along with his peers (id.).

According to the May 2022 IESP, the student was physically healthy, with hearing within normal limits and typically developing gross motor skills (Parent Ex. B at p. 6).  Regarding fine motor skills, the May 2022 IESP indicated that student could snip with scissors and string beads but could not "grasp [a] pencil/crayon correctly" (id.).  Regarding daily living skills, the IESP reported that the student could not follow multi-step instructions; but he usually undressed himself independently and washed his face and brushed his teeth with some assistance (id. at pp. 1-2).

The May 2022 IESP identified the following modifications and resources needed to address the student's management needs: redirection and refocusing prompts; repetition; and preferential seating (Parent Ex. B at p. 6).  The student's annual goals addressed the following skills: phonological awareness; rote counting; writing his name; displaying appropriate behaviors in class; increasing speech intelligibility through articulation skills; and improving expressive language skills (id. at pp. 7-9).  Finally, due to the student's speech and language delays, the May 2022 CSE determined that the student would benefit from five periods per week of SETSS and two 30-minute sessions per week of individual speech-language therapy (see id. at pp. 7, 10).

2. Services from Yes I Can

On appeal, the parties dispute whether the IHO erred in determining that the parents established the appropriateness of the services provided to the student by Yes I Can during the 2023-24 school year.  According to the district, "[i]t is not enough to merely present documents and testimony," the evidence must show that the unilaterally obtained services were specially designed to address the student's unique needs, and the parents' hearing presentation failed in that regard (Answer at p. 6).  More specifically, the district argues that the parents presented no testimony from the providers themselves; the testimony of the associate director, who did not have direct knowledge of the student, lacked details regarding the methods, strategies, and techniques used to address the student's needs; the parents presented no assessments or other information regarding the student's level of functioning at the beginning of the school year to provide a baseline for measuring the student's progress; the SETSS progress report refers to "Red/Green Behavior Systems" and "StarPower Curriculum" with no explanation of how those were designed to address the student's needs or how the student benefited from them; and the parents presented no evidence regarding the curriculum at the student's nonpublic school or how the student's SETSS and speech therapy supported his classroom functioning.  According to the parents, their hearing presentation showed that the unilaterally obtained services were specially designed to address the student's unique needs.  More specifically, the parents argue that the progress reports detailed the student's needs, the providers' efforts to address those needs, the methodologies used, and the student's progress.  Additionally, the parents cite testimony from the a Yes I Can associate director, indicating that the majority of the student's SETSS were provided in the classroom, which, according to the parents, belies the district's contention that the hearing record lacks information regarding the student's general education instruction.

As stated above, the IHO was required to "consider the totality of the circumstances in determining whether the unilaterally obtained services reasonably serve[d] [the student's] individual needs"(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).  Here, the IHO's determination did not reflect consideration of the totality of the circumstances or even the substance of the parents' hearing presentation.  Indeed, the IHO only considered the parents' presentation of certain categories of evidence (see IHO Decision at p. 4).  Nevertheless, as explained below, my review of the hearing record leads me to find that the IHO reached the correct conclusion.

The evidence in the hearing record indicates that, during the 2023-24 school year, Yes I Can provided the student with five hours per week of one-to-one SETSS and two 30-minute sessions of individual speech-language therapy from appropriately credentialed providers (Parent Exs. E at pp. 1, 5; F at pp. 1-2; G ¶¶ 38-41; I at p. 1).[18]^, [19]  The associate director testified that the student's services were delivered during the school day at the student's mainstream school, "both inside the classroom as push-in sessions and [one-to-one] in a separate location" (Parent Ex. G ¶¶ 46, 49; see also Tr. pp. 19-21).[20]  The associate director further testified that, in addition to providing direct services to the student, the providers created goals, wrote progress reports, and met with teachers and parents (Parent Ex. G ¶ 47).

Included in the hearing record is a June 2024 SETSS progress report, which indicates that, at the start of services, the student scored in the "well below average" range on the numbers and letters subtest of the "KSEALS assessment" (i.e., the Kaufman Survey of Early Academic and Language Skills), but that "[b]ased on the most recent assessment, [the student] scored at low average, demonstrating significant progress in literacy" (Parent Ex. E at p. 1).[21]

According to the SETSS progress report, the provider used "K5 learning worksheets and the Orton-Gillingham approach," along with "[p]rograms such as READ Right and LIPS," to support the student in reading (Parent Ex. E at pp. 1-2).  The progress report indicates that the student's reading goals were as follows: isolate and pronounce the initial, medial vowel, and final sounds in "cvc" words that did not contain final ending sounds with /l/, /r/, or /x/; and "[r]ecognize and name some uppercase and lowercase letters, especially those in his own name" (id.).  The progress report indicates some progress toward the student's reading goals (id. at p. 2).  Specifically, the SETSS provider reported that, although the student learned the alphabet and some of the letter sounds, he continued to struggle with decoding simple "cvc" words; had difficulty spelling "cvc" words, "particularly in selecting the correct vowel"; and he "often guess[ed] the words incorrectly due to his impulsivity and poor attention skills" (id.).  The provider further reported that the student "learned all the letters of his name[] but [wa]s still not fluent with all the alphabet" (id.).

According to the SETSS progress report, the provider used think aloud strategies, modeling, metacognition techniques, and "Feuerstein Mediated Learning Systems" to assist the student with reading comprehension (Parent Ex. E at p. 2).  The progress report indicates that the student's reading comprehension goals were as follows: "develop[] and answer[] questions about characters, major events, and pieces of information in a text;" and "[m]ake[] connections between self, text, and the world" (id.).  The progress report indicates that those skills were "emerging" but the student "need[ed] more dedicated instruction" (id. at pp. 2-3).  Specifically, the provider reported that the student "learned to listen to a story and refer back to [the story] to answer his own questions, but he still struggle[d] with understanding questions posed to him and often attempt[ed] to answer before listening to the entire question" (id. at p. 2).  The provider further reported that the student "made some progress in describing events or scenes" from a text but continued to struggle to make predictions and "connections between himself and the text" (id.).

Regarding math, the SETSS progress report indicates that the provider used GreatMinds (Eureka Math), modeling, think alouds, and manipulatives to assist the student (Parent Ex. E at p. 3).  The progress report indicates that the student's math goals were as follows: "[r]ecognize[] whether the number of objects in one group [wa]s more than, fewer than, or equal to . . .  the number of objects in another group"; and count objects by "say[ing] the number names in the standard order," "pairing each object with one . . . number name and each number name with one . . . object" (id.).  According to the progress report, those skills were "emerging;" but the student "require[d] further instruction for mastery" (id.).  Specifically, the SETSS provider reported that, while the student "learned to count out a given number of objects from [one to ten]," "he still relie[d] on counting each object individually rather than recognizing the quantity at a glance"; and he "struggle[d] with identifying whether one group ha[d] more or less than another group" (id.).  The provider further reported that the student "learned to count with [one-to-one] correspondence" but "he ma[de] many careless mistakes[] and . . . often misse[d] objects when counting" (id.).

The SETSS progress report indicated that the provider used "Red/Green Behavior Systems," "StarPower Curriculum," role play, and social stories to assist the student with his social/emotional goals (Parent Ex. E at pp. 3-4).  The progress report indicates that the student's social/emotional goals were interacting with peers and "independently modify[ing] [his] behavior in different situations" (id.).  According to the progress report, social skills were "emerging" but the student required further instruction (id. at p. 4).  The SETSS provider reported that the student "often appear[ed] bossy and manipulative during group activities, insisting that his way [wa]s the only acceptable approach" (id. at p. 3).  The provider further reported that the student was impulsive and had difficulty staying focused, accepting limitations, and adhering to class rules, challenges which impacted his social interactions (id. at p. 4).  According to the provider, the student "learned to interact with his peers in a more appropriate manner;" but "he continue[d] to exhibit aggressive behavior" (id.).

According to the SETSS progress report, the SETSS provider used modeling, verbal prompts, encouragement, role play, and social stories to support the student in the area of social language (Parent Ex. E at p. 4).  The progress report indicates that the student's social language goals were as follows: "participate[] in small or large group activities for story-telling, singing[,] or finger plays"; and "ask[] questions related to an item, event[,] or experience (id.).  According to the progress report, those skills were "emerging" but the student required further instruction (id.).  Specifically, the SETSS provider reported that the student learned to participate and express himself in small groups but he "still struggle[d] to use his words effectively when he fe[lt] frustrated or upset" (id.).  The provider further reported that, while the student "learned to brainstorm during discussions," he had difficulty asking questions and "often avoid[ed] approaching his teacher to express himself" (id.).

Also included in the hearing record is a speech-language therapy progress report dated May 30, 2024 (Parent Ex. I at pp. 1, 3).  According to the speech-language therapy progress report, the provider evaluated the student's strengths and weaknesses using informal assessments, which revealed delays in expressive, receptive, pragmatic language, and articulation skills (id. at p. 1).  The student's speech-language therapy provider reported that the student's "language delays ha[d] a negative effect on his academics," "mak[ing] it difficult[] for him to communicate with his teachers and peers effectively" (id. at p. 3).

The speech-language therapy progress report characterized the student's receptive language difficulties as weaknesses with understanding expanded sentences, following multi-step directions, and identifying the object that does not belong (Parent Ex. I at p. 2).  Regarding expressive language, the progress report stated that the student demonstrated "[d]ifficulty in formulating grammatically correct sentences" (id.).  The progress report further indicated that the student's articulation delays negatively affected his intelligibility (id.).  More specifically, the progress report indicated that the student could not produce the /sh/ sound correctly and he distorted the sound "in all positions of words[] when speaking spontaneously" (id.).  Regarding pragmatics, the provider reported that the student "ha[d] difficulty getting along with his peers and constantly [had] altercations with them" (id.).  The provider further reported that the student tended to play alone, as his tendency "to brag often and hurt others' feelings" "alienate[d] him from his peers" (id.).

According to the speech-language therapy progress report, the provider addressed the student's language skills through "-wh" questions, storybooks, worksheets, models, and expansions (Parent Ex. I at p. 2).  To address the student's articulations skills, the provider used models, visual feedback from mirrors, and articulation drills to target articulation errors (id.).  To address the student's pragmatic skills, the provided used social stories and role play (id.).  The provider used positive reinforcement to maintain the student's motivation during therapy sessions (id. at p. 1).

The speech-language therapy progress report included current goals for the student and reported the student's progress towards these goals (Parent Ex. I at pp. 2-3).[22]  One of the student's current speech goals was "produc[ing] the phoneme /s/ in the initial positions of words given a minimal prompt" (id. at p. 2).  In that regard, the provider reported that the student made progress and produced the /sh/ "sound in all positions of words . . . when provided with a model and visual feedback" (id. at p. 3).  Another speech goal was "describ[ing] objects using [three] modifiers given verbal prompts" (id. at p. 2).  In that regard, the provider reported that the student made progress and could "now describe objects using two modifiers" (id. at p. 3).

As described above, the evidence in the hearing record indicates that the student's SETSS and speech-language therapy providers understood his needs and provided specialized instruction to address those needs.  The progress reports detailed the methods employed and the progress achieved (see Parent Exs. E at pp. 1-4; I at pp. 1-3).[23]  Moreover, the associate director's testimony established that the student's SETSS provider supported him in his general education classroom (see Tr. pp. 19-21; Parent Ex. G ¶¶ 46, 49).

Contrary to the district's contention, the parents were not required to present formal assessments or baseline information for measuring the student's progress (see 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013] [stating that nothing in the IDEA or its State counterpart "requires that an IEP contain 'baseline levels of functioning' from which progress can be measured"]; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208, 214 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate although the private school's assessments and reports were alleged to be incomplete or inaccurate, as the fault for such inaccuracy or incomplete assessment of the student's needs lied with the district]; Application of a Student with a Disability, Appeal No. 18-049 [stating that "it was the district's obligation to evaluate the student and present its view of his needs at the impartial hearing"]).  In any event, the parents' hearing presentation described the student's needs and classroom functioning with sufficient detail (see Parent Exs. E at pp. 1-4; I at pp. 1-2).[24]

Considering the totality of the circumstances, I find that the parents met their burden of proving the appropriateness of the services provided to the student by Yes I Can during the 2023-24 school year.

D. Equitable Considerations

Finally, the parties dispute whether the IHO erred in determining that, assuming the IHO had jurisdiction to award funding, "the [d]istrict's rate stands" (IHO Decision at p. 4).  The district contends that equitable considerations warrant denial or, at least, reduction of the requested relief, as the contracted rates were excessive.[25]  The district argues that any award of funding should reflect either the district's approved rate of $125.00 per hour or reduction of the contracted rates to include indirect, noneducational costs of only 27.7 percent, in accordance with the SRO's analysis in Application of a Student with a Disability, Appeal No. 24-222.  The parents contend that the IHO's reliance on Application of a Student with a Disability, Appeal No. 24-222 was misplaced.  In that regard, the parents argue as follows: the hearing record includes testimony explaining the basis of the contracted rates; the American Institute for Research (AIR) report, offered into evidence by the district and relied upon by the SRO in deciding Application of a Student with a Disability, Appeal No. 24-222, "cannot be relied upon to set a reasonable market rate for private . . . services in New York City" because it includes data from three states and does not account for profit; the aforementioned 27.7 percent "overhead" rate should not be applied in this case because the district did not disclose the United States Bureau of Labor Statistics (USBLS) data upon which that rate was based and did not request its application during the hearing; and, with respect to speech-language therapy specifically, neither the AIR report nor the underlying USLBL data is relevant to determining an appropriate rate (Req. for Rev. at p. 9).  The parents seek funding of the cost of the unilaterally obtained services at the contracted rates of $200.00 per hour for SETSS and $245.00 per hour for speech-language therapy, less $3,600.00, the amount paid by Yes I Can to assist the parents with legal fees.

Under the Burlington/Carter framework, the final criterion for an award of funding is that the parents' claim must be supported by equitable considerations.  With respect to equitable considerations, the IDEA provides that funding 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"]).  Among the factors that may warrant a reduction in funding 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 rate argument requires, at a minimum, evidence of not only the rate charged for the private services, but evidence of reasonable market rates for the same or similar services.

While not all of the AIR report and its methodologies are strictly applicable to a parents' decision to unilaterally obtain private special education services from a private company like Yes I Can, I find that the AIR report, entered into evidence as District Exhibit 1, offers some basis to conclude that the rate charged by YES I Can for one-to-one SETSS was excessive.

 First, the AIR report draws data published by the USBLS, a U.S. government agency, and 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]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data was published.[26]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey, and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers, public and private, working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/ oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

The AIR report appears to address a question of what kind of approach "NYC DOE can use to determine a fair market rate for its Special Education Teacher Support Services (SETSS)" (Dist. Ex. 1 at p. 4).  If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.

However, a parent facing the failure of the district to deliver his or her child's IESP services, who is left searching for a unilaterally selected self-help remedy, would be unable to hire teachers already employed by the district unless a teacher is "moonlighting" and, thus, dually employed; and the parent facing that situation would therefore be unable to negotiate for private teaching services with the same bargaining power that the district holds.  Thus, while the AIR report relies on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose, namely, to ensure fair treatment among union members who are operating in public employment.  Yet, fair treatment among district employees is of little or no interest to a parent who seeks to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees.  Thus, the district-negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.

Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers from across the spectrum including private schools, charter schools, and district special education teachers.  The USBLS data indicated that, in May 2023, annual salaries for "Special Education Teachers, All Other" ranged from $49,000 in the 10th percentile, $63,740 in the 25th percentile, $97,910 in the median, $146,200 in the 75th percentile, to $163,670 in the 90th percentile.[27]

In my view, this is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parents' costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, 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 27.7 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 2023, available at https://www.bls.gov/news.release/archives/ecec_09122023.pdf).[28]

The undersigned had little difficulty with the explanation in the AIR report that children must be educated for 180 days per year in this state and that school days are typically between six and seven hours long.[29]  I will take this into account when ordering equitable relief.

The associate director testified that Yes I Can paid the SETSS provider $100.00 per hour (Tr. p. 15).  A rate of $100 per hour annualized is $117,000.00, a figure only slightly above the 50th percentile, thus the $100 per hour portion of the rate is not excessive.  However, the amount of indirect costs above the provider's hourly wage is $100.00 per hour or 50 percent of the $200.00 hourly rate charged by Yes I Can (Parent Exs. D at p. 4; G ¶ 32).  This falls far above the 27.7 percent identified in the USBLS data.

Considering that the associate director only identified general categories of indirect costs that factored into the hourly rate charged without providing the actual overhead costs applied to the rate charged for the student or explaining why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence in the hearing record leads me to the conclusion that the parents arranged for SETSS from Yes I Can at an excessive cost, as the district argues, and that it is more than what the district should be required to pay (see Tr. pp. 16-17; Parent Ex. G ¶¶ 32-34).  On the other hand, some indirect or overhead cost is reasonable.  Calculating for overhead costs equating to 27.7 percent of the overall rate, and the provider's wage as a known factor, the total rate computes to $138.31 per hour.  Accordingly, the district will be ordered to fund the student's SETSS for the 10-month 2023-24 school year, at a rate of $138.31, subject to the parent providing the district with proof of the student's attendance and invoices from Yes I Can.

As for the speech-language therapy services provided by Yes I Can, the AIR report does not adequately support the district's contention that the contracted rate was excessive.  As discussed above, although the title of the AIR report is "Hourly Rates for Independently Contracted Special Education Teachers and Related Service Providers," the report only includes a methodology and charts for determining rates for special education teachers (see Dist. Ex. 1).  The district has not explained how the undersigned should apply the report to a rate for speech-language therapy services, and it is does not appear relevant to determining a rate for speech-language therapy services.  Reliance on relevant federally published statistics for a speech-language therapist, in the same way the AIR study report relies on data from the USBLS, might be a permissible approach, but the district did not offer such evidence or argument in this case.  As such, I find no basis in the record on appeal to find that equitable considerations warrant a reduction of the contracted rate  for speech-language therapy provided to the student during the 2023-24 school year.[30] Accordingly, the district will be ordered to fund the student's speech-language therapy for the 10-month 2023-24 school year, at the contracted rate of $245.00 per hour, subject to the parent providing the district with proof of the student's attendance and invoices from Yes I Can.

VII. Conclusion

As explained above, the district's request for dismissal of the parents' appeal is denied.  While the IHO applied the correct legal standard to assess the parent's entitlement to the relief sought, the IHO erred in dismissing the claim relating to IESP implementation and provider rates for lack of subject matter jurisdiction and, thus, denying relief.  I find that the parents are entitled to an award of funding, as the hearing record supports the IHO's determination that the parents established the appropriateness of the services provided to the student by Yes I Can during the 2023-24 school year.  However, I also find that equitable considerations warrant reduction of the requested rates in accordance with the body of this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED the IHO's decision, dated August 26, 2024, is modified by reversing that portion which dismissed the parents' claim pertaining to IESP implementation and provider rates for lack of subject matter jurisdiction;

IT IS FURTHER ORDERED that the district shall fund the costs of no more than five hours per week of SETSS delivered to the student by Yes I Can during the 2023-24 10-month school year, at a rate of $138.31 per hour, upon the parents' submission of proof of delivery; and

IT IS FURTHER ORDERED that the district shall fund the costs of no more than one hour per week of speech-language therapy delivered to the student by Yes I Can for the 10-month 2023-24 school year, at the contracted rate of $245.00 per hour, upon the parents' submission of proof of delivery.