I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for the costs of her daughter's unilaterally-obtained special education teacher support services (SETSS) for the 2023-24 school year.  Respondent (the district) cross-appeals from those portions of the IHO's determination that the parent's unilaterally-obtained SETSS were appropriate and the failure to dismiss the parents due process complaint notice for lack of subject matter jurisdiction.  The appeal must be dismissed.  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[a]).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

In this case, evidence in the hearing record reflects that the parent signed a document entitled "Agreement for Services," indicating that she agreed for the provider identified therein (SETSS provider) to provide the student with six sessions of SETSS for the 2023-24 school year at a rate of $175.00 (Parent Ex. C).[1]  The agreement for services was undated, but reflected that it was "[e]ffective September 1, 2023, and that both the SETSS provider and the parent signed the agreement (id.).  According to the agreement for services, the SETSS provider would "not require" the parent to "make any payment until" the parent had, pursuant to the agreement, "retained a lawyer to ask the [district] to pay [the p]rovider directly the fees for the services described" in the agreement and that process (i.e., impartial hearing) had concluded (id.).  The agreement for services also reflected that, if the district was not required to fund the costs of the services, then the parent "agree[d] that he/she [wa]s responsible for the fees" for the services (id.).

Evidence in the hearing record also includes a district document entitled "Authorization for Independent [SETSS] for Parentally-Placed Student[s]" (Parent Ex. I at p. 1).  The district issued the authorization on September 7, 2023 (id.).  The authorization instructed the parent that the student was entitled to SETSS from an "eligible independent provider at no cost" to the parent, and referenced a website with a "list of eligible providers" (id.).  It was also noted that, if the parent needed "assistance locating a provider, or if [the parent] ha[d] any questions," to contact the district individual identified on the form (id.).

Additionally, the evidence in the hearing record includes copies of district forms for the "Impartial Hearing Order Implementation Unit," which reflect the dates and times when the student purportedly received services during the 2023-24 school year (Parent Ex. G at p. 1).[2]  The SETSS invoices also include the student's information and the provider's name, which was the same individual identified in the agreement for services signed by the parent; according to the SETSS invoices, the student received SETSS from the provider from September 7, 2023 through June 25, 2024 (id. at pp. 1-10).  However, although the SETSS provider signed the SETSS invoices, a different entity, "Targeted Support, LLC" (Targeted Support) was identified on the SETSS invoices as the agency or independent provider and moreover, identified the "Service Location" as the "Place of Business" (id. at p. 1).[3]  According to the SETSS invoices, all of the student's SETSS took place at night in three-hour sessions, such as from 6:00 p.m. to 9:00 p.m., 6:30 p.m. to 9:30 p.m., 7:00 p.m. to 10:00 p.m., or 7:30 p.m. to 10:30 p.m. (id.).

With respect to the student's educational history, the hearing record is sparse.  Briefly, a CSE convened in November 2023, and developed an IESP for the student for a portion of the 2023-24 school year (November 2023 IESP), with a projected date of implementation of November 27, 2023 and a projected annual review date of November 10, 2024 (see Parent Ex. B at p. 1).  Finding the student eligible to receive special education as a student with a learning disability, the November 2023 CSE recommended that the student receive six periods per week of SETSS in a group, three 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of individual counseling services (id. at pp. 1, 13-14).[4]^, [5]

A. Due Process Complaint Notice

By due process complaint notice dated July 15, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) "and/or equitable services" for the 2023-24 school year (see Parent Ex. A at p. 1).  According to the parent, the student's November 2023 IESP represented the last-agreed upon program developed for the student, which included recommendations for six sessions per week of SETSS, "as well as related services" (id.).[6]  The parent further indicated that she "dispute[d] any subsequent program the [district] developed that removed and/or reduced services on the IESP, and also dispute[d] any act the [district] may have taken to deactivate or declassify the student from being eligible to receive services" (id.).  The parent asserted that, for the 2023-24 school year, the student continued to require the "same special education services and the same related services each week as set forth on the IESP" (id.).

Next, the parent indicated that she could not locate providers to work at the district's "standard rates," and the district had not provided any for the student for the 2023-24 school year (Parent Ex. A at p. 1).  The parent further indicated that she had located providers to deliver "all required services" to the student for the 2023-24 school year, but at "rates higher than standard [district] rate[s]" (id.).

As relief, the parent sought an order directing the district to continue the student's special education and related services under pendency and to directly fund the costs of the student's six sessions per week of SETSS at the "enhanced rate" for the 2023-24 school year (Parent Ex. A at p. 2).    In addition, the parent sought an order awarding "all related services and aides on the IESP" for the 2023-24 school year and to either issue related services authorizations (RSAs) for the parent's selected providers or directly fund the costs of the related services at the rates of the parent's selected providers (id.).

In a response to the parent's due process complaint notice, dated August 1, 2024, the district denied the parent's material allegations, notified the parent of its intention to assert numerous defenses, including any applicable defenses pursuant to Education Law § 3602-c, and asserted that the IHO lacked subject matter jurisdiction to adjudicate the claims in the parent's due process complaint notice (see generally Parent Ex. E).

B. Impartial Hearing Officer Decision

On November 7, 2024, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-26).[7]  In a decision dated January 14, 2025, the IHO found that the district failed to demonstrate that it implemented the services set forth in the student's November 2023 IESP, and therefore, the district failed to offer the student a FAPE on an equitable basis for the 2023-24 school year (see IHO Decision at pp. 2-4).

With regard to the parent's unilaterally-obtained SETSS, the IHO conducted a Burlington/Carter analysis, and determined that "the progress report submitted by the [p]arent detailed [the s]tudent's deficits and the strategies used" to support the student, and therefore, the parent sustained her burden to establish that the unilaterally-obtained SETSS provided the student with specially designed instruction to meet her needs and to receive educational benefits (IHO Decision at p. 4).

Finally, the IHO addressed equitable considerations (see IHO Decision at pp. 4-6).[8]  Initially, the IHO noted that, in order to receive an award of funding, the evidence in the hearing record must demonstrate that the agency's "rates [we]re reasonable and appropriate under the circumstances" (id. at p. 5).  For context, the IHO then referenced previous SRO decisions deciding equitable considerations and the facts and circumstances present in those matters (id. at pp. 5-6).  Turning to the present matter, the IHO reviewed and considered the testimony from the director of Targeted Support (agency director), and then concluded that, based on that testimony, the parent would "not be responsible for making any payments for the SETSS" delivered to the student (id. at p. 6).  Consequently, the IHO found that, because there was "no actual or imminent financial injury" to the parent and the parent had no "financial obligation to pay" the agency, the parent did not have standing to seek retrospective payment for the unilaterally-obtained SETSS (id.).  In addition, the IHO noted that, based on the agency director's testimony, the parent was "not bound to the contract and both parties d[id] not intend this agreement, [or] at least the [a]gency, d[id] not intend to collect payment" from the parent at any point (id.).  The IHO further noted that, although the evidence in the hearing record included a "contract," the hearing record indicated that the parent did not have "an obligation" to the agency, and the parent had not "made any payments or received any invoices" (id.).  For these reasons, the IHO denied the parent's request to be reimbursed for the costs of the student's unilaterally-obtained SETSS for the 2023-24 school year (id. at pp. 6-7).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred by finding that equitable considerations precluded the parent's requested relief, and more specifically, by finding that the parent is not financially obligated to pay for the student's unilaterally-obtained SETSS during the 2023-24 school year.  As relief, the parent seeks an order directing the district to fund the costs of the student's unilaterally-obtained SETSS—six periods per week at $175.00 per hour—for the 2023-24 school year.

In an answer, the district responded to the parent's allegations and generally argues to uphold the IHO's equitable considerations determinations.  As part of its answer and cross-appeal, the district asserts that the parent failed to sustain her burden to establish the appropriateness of the unilaterally-obtained SETSS delivered to the student during the 2023-24 school year.  In addition, the district asserts that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims.  As a final argument, the district contends that the verification of the parent's request for review fails to comply with practice regulations, and therefore, the request for review should be dismissed on this basis.[9]

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]).[10]  "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.).[11]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

A. Preliminary Matters

Turning first to the district's argument that the parent's verification fails to comply with Part 279 of State regulations, the district is correct.  In the verification attached to the request for review, the parent of the student who is the subject of this proceeding is identified, but then a different individual unrelated to this proceeding is named who swears under penalties of perjury regarding the contents of the parent's request for review.  Accordingly, the verification is defective.   The district is correct that the parent failed to properly initiate the appeal in accordance with Part 279 by timely serving a verified request for review upon the district and, accordingly, the appeal must be dismissed.   Because this is not the only issue regarding the identity of individuals involved in the events of this case, further findings in the alternative are discussed below which explain that the parent would not have otherwise been entitled to relief.

B. Subject Matter Jurisdiction

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

In numerous 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. 25-106; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

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

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

Separate from the services plan envisioned under the IDEA, the 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]).[12]

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).[13]  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], 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.[14]

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

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

("Special Education Due Process Hearings—Rate Disputes," Office of Special Educ. [Aug. 2024]).[15]  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 section 4404 are repudiated by the due process provisions of section 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 if 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).[16]  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 district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

C. Unilateral Placement

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally-obtained SETSS from a private provider 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]).[17]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

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

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

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

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

1. Student Needs

While the student's needs are not in dispute, a brief discussion thereof provides context for the issues in dispute on appeal, namely, whether the parent's unilaterally-obtained SETSS were appropriate to meet the student's needs during the 2023-24 school year.  However, in this matter, the hearing record does not include any testimonial or documentary evidence that directly describes the student's needs either prior to or at the time when the parent decided to unilaterally-obtain SETSS for the student pursuant to the effective date of the agreement for services, September 1, 2023 (see generally Tr. pp. 1-26; Parent Exs. A-I; Dist. Exs. 1-2).  Instead, the hearing record includes the student's November 2023 IESP, which describes the student's needs at that time and reports information about the student's needs identified in previous testing results obtained in June 2023 and March 2020 (see Parent Ex. B at pp. 1-5).

Based on the evaluative information set forth in the November 2023 IESP, the student underwent a psychoeducational evaluation on June 20, 2023 (June 2023 psychoeducational evaluation), which included the administration of the following to the student: the Wechsler Abbreviated Scale of Intelligence—Second Edition (WASI-II) and the Woodcock-Johnson Tests of Achievement—Fourth Edition (WJ IV ACH) (Parent Ex. B at pp. 1-3).[18]^, [19]  Administration of the WASI-II, yielded a full-scale intelligence quotient (IQ) of 79, which fell within the "[b]orderline range" (id. at pp. 1-2).  According to the November 2023 IESP, the student was administered the WASI-II to "determine her current intellectual functioning" and the IESP further noted that the WASI-II "grouped an individual's ability into two global areas: Verbal Comprehension Index (VCI), which measure[d] verbal ability, and Perceptual Reasoning Index (PRI), which involve[d] the manipulation of concrete materials or processing of visual stimuli to solve problems nonverbally" (id.).  The student attained a standard score of 76 (borderline range) on the verbal comprehension index and a standard score of 87 (low average range) on the perceptual reasoning index (id. at p. 2).

With regard to academic achievement testing reported in the November 2023 IESP, the student's performance on WJ IV ACH subtests yielded scores that all fell within the very low range, except for the student's score on the applied problems subtest, which fell within the average range (see Parent Ex. B at pp. 2-3).  Based on the WJ IV ACH testing results, the November 2023 IESP reflected that the student had "severe deficits" in reading, as demonstrated by her subtest scores, and her "greatest struggle was noted in reading comprehension" (id. at p. 3).  Next, as reported in the IESP and based on her subtest scores, the student "struggle[d] in all areas of mathematics," although she "performed relatively better when having to problem solve" (id.).  According to the IESP, during the evaluation, all "math word problems" were "read" to the student (id. at p. 4).  More specifically, the November 2023 IESP noted that the student "inconsistently solved basic addition, subtraction, and multiplication problems"; and she could not "solve the simplest of division examples and could not solve problems requiring knowledge of fractions and decimals" (id.).  Finally, in the area of writing, the student performed in the very low range on both the spelling and sentence writing fluency subtests (id.).  According to the IESP, the student was also "asked to write a persuasive letter on a given topic" as part of the evaluation process, and the student's "response was not in letter form," it consisted of "one sentence," and it had "[t]wo spelling errors" (id.).  In addition, it was noted in the IESP that, during the assessment, the student was "unable and/or unwilling to elaborate upon what should have been an introductory sentence" (id.).[20]

In addition to reporting the student's testing results from the June 2023 psychoeducational evaluation, the November 2023 IESP reflected previous testing results obtained in March 2020 (see Parent Ex. B at p. 2).[21]  In addition, the November 2023 IESP included narrative descriptions of comparisons made between the student's current evaluative results with those obtained in March 2020.  For example, it was noted that the student's current testing results on the WASI-II were "fairly consistent with [findings] obtained previously" with respect to the student's verbal and nonverbal skills (id. at p. 2).  With respect to the WJ IV ACH current testing results, the IESP indicated that the student's performance in reading was "generally comparable to those [results] achieved years ago," but noted more specifically that the student's "reading speed ha[d] not grown" (id. at p. 3).  In mathematics, the IESP noted that the student's current testing results demonstrated that the student had "not further developed her calculation skills" (id. at p. 4).  In writing, the current testing results were described as "comparable to those obtained in previous years" (id.).  Significantly, however, when describing the student's then-current present levels of performance, the November 2023 IESP indicated that "[d]elays were noted in all academic areas," and "[w]hen compared to previous test results from 2020, a lack of growth, if not regression was evidenced in most areas, with the exception of math problem solving skills, which were in the [l]ow [a]verage range, and of relative strength" (id. at pp. 3-4).

2. Specially Designed Instruction—SETSS

As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).  Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).

In this matter, the parent unilaterally-obtained SETSS for the student during the 2023-24 school year.[22]  The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder.  As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district, and unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125).  For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).

In its cross-appeal, the district contends that the parent failed to establish that the unilaterally-obtained SETSS were appropriate to meet the student's needs.  Specifically, the district contends that the hearing record is devoid of credible evidence demonstrating how the SETSS were "implemented, what deficits they addressed, when and where they were provided, or how they were specially designed to address" the student's needs.  In addition, the district contends that the parent failed to provide evidence of any progress, which, while not dispositive, is a relevant consideration.

Notably, the parent did not testify in this matter; however her attorney proffered documentary evidence to support her claim for funding.  For example, the hearing record included one document, dated May 14, 2024, which the parent identified as a "Progress Report" and which bore the SETSS provider's name (May 2024 progress report) (Parent Ex. H at pp. 1-2; see Tr. pp. 5-6).  At the impartial hearing, the agency director testified that the SETSS provider "handled" the progress report in evidence (Tr. pp. 16-17; see generally Parent Ex. H).

As reflected in the May 2024 progress report, the student was receiving six hours per week of SETSS and "[s]ervices [we]re geared toward building skills in reading, writing, math[ematics] and language domains" (Parent Ex. H at p. 1).

With respect to mathematics, the May 2024 progress report indicated that, based on an informal assessment, the student's scores demonstrated that she had fifth grade level skills (see Parent Ex. H at p. 1).[23]  It was reported that the student had "mastered the order of operations and the rules of integers," but could not "complete multi-step problems, simple algebraic equations, fraction [and] decimal conversions and percents" (id.).  In addition, the student "forg[ot] the math[ematics] rules taught" and became "discouraged easily" (id.).  The May 2024 progress report also indicated that the student had difficulty "[s]olving simple multiplication [and] division examples," she worked "slowly," and she needed to "look back at her notes constantly in order to solve the example" (id.).  According to the progress report, the SETSS provider used "repetitions, visual manipulatives, [and] scaffolding" to support the student in mathematics (id.).  The May 2024 progress report included goals for mathematics, but did not indicate whether those were current goals or were goals for the next school year (id.).

Next, in the area of reading, the May 2024 progress report reflected that, based on a formal assessment "using the Fountas and Pinnell assessment," the student achieved a "level U" (Parent Ex. H at p. 1).[24]  At that time, the student "enjoy[ed] reading short stories geared for lower elementary students in content and decoding skills" (id.).  According to the progress report, the student went "blank and c[ould not] comprehend the main idea" when she read "simple instructions or a passage that require[d] higher-order thinking" (id.).  However, the May 2024 progress report revealed that the student had "recently mastered reading multisyllabic words and using context clues to figure out unknown vocabulary words within the text" (id.).  The progress report further revealed that the student "dislike[d] reading" because she "struggle[d] with accuracy, fluency, comprehension, and decoding skills" (id.).  To support the student in reading, the progress report indicated that the SETSS provider used "Or[t]on-Gil[l]ingham reading instruction with the multi-sensory component, [and] graphic organizers" (id.).  Similar to mathematics, the progress report included goals for reading but did not indicate whether those were current goals or were goals for the next school year (id. at pp. 1-2).

Next, the May 2024 progress report reflected that, in the area of writing, the student had been "assessed informally" and she "scored on [the four]th grade level" (Parent Ex. H at p. 2).  According to the progress report, the student could not "express her thoughts to the paper," (id.).  The progress noted that although the student had "improved her sentence structure and grammar rules, she often forg[ot] to capitalize and wr[ote] run-on sentences" (id.).  In addition, it was reported that the student wrote in an "unorganized manner" and "often gear[ed] [sic] off topic, forgetting the main idea"; the student needed "lots of encouragement and hands-on guidance to support her in the writing process" (id.).  To support the student in writing, the SETSS provider used "[r]epetition, scaffolding, [and] positive reinforcement" (id.).  Similar to mathematics and reading, the progress report included goals for writing, but did not indicate whether those were current goals or were goals for the next school year (id.).

Finally, the May 2024 progress report described the student's language skills, noting specifically that she demonstrated "deficits in receptive language skills," as well as "difficulty focusing and [wa]s easily distracted" (Parent Ex. H at p. 2).  According to the progress report, the student struggled to "follow multi-step directions and comprehend material taught in class" (id.).  In addition, it was reported that the student exhibited "poor listening comprehension and require[d] the information to be broken down into simpler steps by individual instruction" (id.).  It was further reported that, in an individual setting, the student demonstrated "improved concentration" due to "less distraction" and that the student had been "making progress" (id.).  To support the student's language skills, the provider used "[r]epetition" (id.).  Unlike the other areas, the progress report did not include any goals to address the student's language skills (id.).

Overall, the May 2024 progress report indicated that the SETSS provider used a "multi-sensory approach with positive reinforcement to help [the student] master her main struggles" and to "assist [the student] in reaching up to grade level" (Parent Ex. H at p. 2).  The progress report further indicated that the student's "progress ha[d] been slow but steady," and she was "currently functioning way below grade level in reading, writing, math[ematics], and language skills" (id.).  As a result, the SETSS provider recommended that the student continue to receive six hours per week of SETSS to "enable her to function well, reach grade level and achieve her great potential" (id.).

Overall, and contrary to the district's contentions, if the appeal had not been dismissed on procedural grounds and I were to reach the issue, there would be insufficient evidence in the hearing record to overturn the IHO's determination that the parent sustained her burden to establish the appropriateness of the SETSS delivered to the student during the 2023-24 school year.

D. Equitable Considerations

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

1. Financial Obligation

In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74).  Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]).  The statute "textually presupposes that the parents had incurred those costs" [Moonsammy v. Banks, 2024 WL 4277521, at *7 [S.D.N.Y. Sept. 23, 2024]).  This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).

When the element of financial risk is removed entirely and the financial risk is borne entirely by unregulated private schools or agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district, it has practical effects because parents begin seeking the best private placements possible with little consideration given to what the child needs for an appropriate placement as opposed to "everything that might be thought desirable by 'loving parents.'" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]).  As the First Circuit Court of Appeals noted, "[t]his financial risk is a sufficient deterrent to a hasty or ill-considered transfer" to private schooling without the consent of the school district (Town of Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 798 [1st Cir. 1984], aff'd, Burlington, 471 U.S. 359, 374 [1985] [noting the parents' risk when seeking reimbursement]; see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247[2009] [citing criteria for tuition reimbursement, as well as the requirement of parents' financial risk, as factors that keep "the incidence of private-school placement at public expense . . . quite small"]).  Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.

Regarding proof of financial risk, parents must come forward with evidence of their financial obligation and may not seeking funding based on "nothing more than their say-so" (Moonsammy v. Banks [Moonsammy II], 2025 WL 733254, at *8 [S.D.N.Y. Mar. 7, 2025]).  The Second Circuit has held that some blanks that the parties did not fill in in a written agreement would not render an entire contract void and indicated that in the case before it that "the contract's essential terms—namely, the educational services to be provided and the amount of tuition—were plainly set out in the written agreement, and we cannot agree that the contract, read as a whole, is so vague or indefinite as to make it unenforceable as a matter of law" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 458 [2d Cir. 2014]).  In New York, a party may agree to be bound to a contract even where a material term is left open but "there must be sufficient evidence that both parties intended that arrangement" and an objective means for supplying the missing terms (Express Indus. & Terminal Corp. v. N.Y. State Dep't of Transp., 93 N.Y.2d 584, 590 [1999]; 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 N.Y.2d 88, 91 [1991]).

The parent asserts that the IHO's determination with regard to equitable considerations ignored the contractual language obligating the parent to pay for SETSS, the agency director's testimony that the parent was bound to the contract, and "nothing in the [hearing] record establishes as a matter of law" that the parent was not financially obligated to pay for the services.  In addition, the parent argues that the IHO erred by finding that the hearing record did not include evidence that the parent either made payments or received invoices.  As relief, the parent seeks an order directing the district to fund payments to Targeted Support at the rate of $175.00 per hour for six periods per week of SETSS during the 2023-24 school year.

At the impartial hearing, the sole witness called by the parent consisted of the "head" or "director" of Targeted Support (agency director), who testified that she owned the agency and which, as previously noted, was identified as the agency or independent provider for the student on the SETSS invoices in evidence (compare Tr. pp. 9, 14-15, with Parent Ex. G at pp. 1-10).  In addition to testifying at the impartial hearing, the agency director had also signed a fillable document, entitled "Affidavit Regarding Services," that was notarized on September 10, 2024, after the due process complaint notice in this matter was filed, but prior to her testimony in November 2024 (Parent Ex. D at pp. 1-2; see Tr. p. 1).  A review of the agency director's affidavit reflects that some information was left blank, such as how long each SETSS period lasted and the specific day services began, noting only September 2023 (id. ¶¶ 1, 4).  The affidavit did, however, identify the SETSS provider as the same individual who was identified in the agreement for services signed by the SETSS provider and the parent (compare Parent Ex. C, with Parent Ex. D ¶ 2).

During her live testimony, the agency director described her role as locating providers for students and acting as a "go between"—that is, with respect to the student, the provider, the school, and the parent—to determine the student's "needs," "which subject should be worked with, when and how, and which materials [] should be use[d], and what support [the student] should be getting in the school" (Tr. p. 9).  The agency director also testified that she would then "give that over to the provider" and "guide the provider" (id.).

With respect to the SETSS provider in this matter, the agency director explained that the SETSS provider did not work for her in other cases, just this one (see Tr. p. 9).[25]  When asked about the "Agreement for Services" signed by the SETSS provider, the agency director testified that, based on her understanding, the SETSS provider had signed the agreement "on behalf of the agency" (Tr. pp. 9-10; Parent Ex. C).  As clarification, the agency director added that the SETSS provider "never reach[ed] out to the school or to the parent" until she, as the agency director, connected the parent with the SETSS  provider (Tr. p. 10).  According to the agency director, the parent reached out to her agency to provide services to the student, and she had discussed with the parent that the agency would pay for the SETSS services while the parent tried to obtain funding for the services (see Tr. pp. 10-12).  The agency director also testified that she sent the SETSS invoices she received to the district to be reimbursed (see Tr. p. 11).

Turning to the agreement for services, the agency director identified the two signatures at the bottom of the page as those of the SETSS provider and the parent (see Tr. p. 13; Parent Ex. C).  With respect to the rate charged set forth in the agreement for services—$175.00 per hour—the agency director confirmed that she had discussed it with the parent and had explained to the parent  that there was a "larger rate coming in" to "help compensate the provider and the agency," which was received at a "later date" (Tr. p. 13; see Parent Ex. C).  She also testified that a portion of the $175.00 per hour would be paid to the SETSS provider and the remainder was paid to the agency "to support the rest of it" (Tr. p. 13).  Based upon her understanding of the agreement for services, the agency director testified that the agency was not "holding the parent responsible at any point for any of the payments" (id.).

During cross-examination, the agency director described Targeted Support as a "small agency" that only served "[j]ust a couple of high school students that no other agency ha[d] people to help them with because they're just hard cases" (Tr. p. 15).  As a result, the agency director stepped in to fill that void (id.).  With regard to the SETSS provider's employment status with the agency, the agency director testified that she hired her and paid her, but she did not "always have an official contract" with the provider (Tr. pp. 15-16).  The agency director further testified that she paid the SETSS provider in this case $75.00 for "every hour that she bill[ed]," because the SETSS provider was "only responsible for the actual work with a student," but she, as the agency director, was "responsible for all the background of it, whether it was the paperwork or teaching her, the billing, supporting her in the subjects, giving her the guidance," and acting as the go-between with the parent (Tr. p. 16).[26]  In addition, the agency director testified that, if the SETSS provider had a "problem," then she would call the agency director, who would resolve the problem because she also served as the agency's "education resource" (id.).

With regard to "overhead" costs for the agency, the agency director testified that it included "all the materials and resources," the costs for the director's home office (not an entire building or offices for providers), and the costs for the work she did, such as speaking with the parents or schools or providing guidance to the providers (Tr. pp. 17-18; see also Tr. pp. 20-21).  The agency director also testified that the providers worked with students either in their own homes or at the providers' homes (see Tr. p. 17).  The agency director also testified that, in this matter, the student's SETSS were provided to her "at home" and occurred "usually after school hours, evening, Sunday, Friday, anything," but not in school (Tr. p. 18).[27]  The agency director then noted that the student's services took place at the "provider's home" (id.).

A review of the agreement for services signed by the parent and the SETSS provider reveals that, consistent with the parent's assertion on appeal, the plain language of the contract legally obligates the parent to pay for the SETSS if the district is ultimately found to not be responsible for such payment (see Parent Ex. C).  However, the plain language of the contract does not identify Targeted Support as the agency or party with whom the parent contracted to deliver SETSS (id.).  No agency is identified at all (id).  In addition, other than the agency director's testimony, the hearing record is devoid of any evidence to corroborate her testimony that the SETSS provider had signed the agreement for services with the parent on behalf of Targeted Support, or that any employment or contractual relationship existed between the SETSS provider who signed the agreement and Targeted Support (id.).  As noted above, the parent did not offer any testimony in this proceeding either.

Therefore, if I were to reach the issue of equitable considerations rather than dismiss the matter on procedural grounds, the hearing record is devoid of evidence that the parent had a financial obligation to Targeted Support, and the parent's reqeust for the district to fund SETSS directly to Targeted Support at the rate of $175.00 per hour for six periods per week would be denied.

VII. Conclusion

Having found that the appeal must be dismissed on procedural grounds and, in the alternative, that the evidence in the hearing record supports the IHO's determinations, the necessary inquiry is at an end.

I have considered the parties' remaining contentions and find that I need not address them in light of the determinations herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.