I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private services delivered by Education Optimized (EDopt) for the 2023-24 and 2024-25 school years.  The district cross-appeals from that portion of the IHO's decision which found the student was entitled to equitable services under the dual enrollment statute for the 2023-24 and 2024-25 school years.  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 programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.

Briefly, a CSE convened on May 4, 2023, determined the student was eligible for special education as a student with a speech or language impairment, and formulated an IESP for the student (Parent Ex. B).[1]^, [2]  The CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech-language therapy (id. at p. 7).[3]  According to the IESP, the student had weak expressive language and receptive language skills, presented with auditory processing delays, was "easily overwhelmed by auditory stimuli, and struggle[d] with following multi-step commands" (id. at pp. 2-3).  The IESP stated that these challenges "significantly impact the student's independent classroom functioning and self-esteem, adversely affecting her ability to see herself as a full member of the classroom community" (id. at p. 2).  Notably, the IESP reflected that the student had made minimal progress with her receptive and expressive language at that time (id.).

On May 24, 2023, the parent informed the district that she intended to parentally place the student in a nonpublic school at her own expense, and requested that the district provide the educational services that the student was entitled to as a result of having an "[individualized education program] IEP/IESP" (see Parent Ex. E).  The parent also expressed that she understood that the district may provide information about the student to the nonpublic school in which the student was enrolled (id.).

On August 14, 2023, the parent electronically signed an EDopt enrollment agreement for the 2023-24 school year (Parent Ex. C).[4]  The agreement indicated that services would be provided pursuant to an attached schedule, and the schedule attached thereto, indicated that services would be provided "[a]s per the last agreed upon IEP/IESP/[findings of fact and decision]" (id. at pp. 1, 3).  The schedule also provided rates for a variety of services including group "Special Education Services," for which the contract indicated an hourly rate of $145, and individual "Speech" and "Special Education Services" for which the contract indicated an hourly rate of $195 (id. at p. 3).

In a letter dated August 23, 2023, the parent, through her lay advocate, Prime Advocacy, LLC (Prime Advocacy), informed the district that it had failed to assign a provider to deliver the student's mandated services during the 2023-24 school year and further notified the district that should it not assign a provider, the parent would be "compelled to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (Parent Ex. D). 

The student attended a nonpublic school during the 2023-24 school year (sixth grade) and received five hours per week of SETSS "delivered in a 1:1 setting" targeting her "reading, writing, math, and social skills," as well as "comprehension and reasoning" (Parent Ex. H at p. 1).

On May 24, 2024, the parent electronically signed a letter which indicated that she had placed the student in a nonpublic school at her own expense, that she wanted the student's special education services to continue to be provided during the 2024-25 school year, that she understood that the district would provide information about the student to the nonpublic school, and that she consented to any necessary evaluations and to the recommended services to be provided by the district to the student (see Parent Ex. F).

A. Due Process Complaint Notice

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (Parent Ex. A).[5]  The parent asserted that the student's last IESP was dated May 4, 2023 (id. at p. 1).  The parent alleged that the district failed to implement services for the student for the 2023-24 school year and that the district impermissibly shifted the responsibility to the parent to find individuals to provide the student with the IESP services (id. at p. 2).  The parent contended that due to the district's failure, she unilaterally secured her own providers to work with the student at an "enhanced rate" (id.).

The parent further asserted that previous programming had "passed its annual review date" and the district failed to develop updated programming for the student for the 2024-25 school year (Parent Ex. A at p. 2).  For relief, the parent requested, among other things, a pendency hearing, funding for SETSS provided to the student during the 2023-24 school year at an enhanced rate, and a bank of compensatory education services for any services that were not provided to the student due to the district's failure to implement services (id. at p. 3).  The parent also requested an order directing the district to provide the student with the services and supports included in the student's "last program of services" at enhanced provider rates for the entirety of the 2024-25 school year (id.).

On September 9, 2024, the district filed a motion to dismiss arguing the IHO did not have subject matter jurisdiction over the parent's claims and that the claims for the 2024-25 school year were not ripe (see IHO Ex. III).  The parent filed a response to the motion to dismiss on September 12, 2024 (see IHO Ex. IV).

B. Impartial Hearing and Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 9, 2025 and concluded the same day (Tr. pp. 1-36).  In a decision dated January 27, 2025, the IHO initially noted that he had been assigned to the instant matter on January 9, 2025, after two other IHOs with OATH "oversaw preliminary scheduling and discovery issues," with an "Omnibus Part Standing Order" being issued on July 22, 2024 (see IHO Decision at pp. 1, 3; IHO Ex. I).[6]

Next, the IHO indicated the relevant legal background and restated relevant facts before addressing his findings for the 2023-24 school year (IHO Decision at pp. 2-4).  As for the 2023-24 school year, the IHO determined the district denied the student a FAPE "on an equitable basis" by failing to assign a SETSS provider (id. at p. 4).  Then, the IHO addressed the district's "application to dismiss the action" pursuant to Education Law § 3602-c (id.). At one point the IHO stated "I find that Educ. Law § 3602-c (2) bars [p]arent's claim, requiring the dismissal of the action" (IHO Decision at p. 4).  However, the IHO then proceeded to deny the district's application and made factual determinations that the parent created and sent a request for equitable services to the district prior to June 1, 2023 and that the district failed to present any evidence to refute submission of the parent's request (id. at pp. 4-5).

With regard to the unilateral services obtained by the parent, the IHO determined that the parent did not meet her burden to prove that EDopt provided educational instruction specially designed to meet the unique needs of the student that would enable her to make progress (id. at pp. 4-6).  The IHO determined that the hearing record lacked any testimony from the student's providers or supervisors; that the parent's witness lacked any personal knowledge of the student's needs, the methodologies used, or how progress was assessed; and that the EDopt progress report was unpersuasive because it was undated, did not identify who created the report, and lacked information regarding the student's then-current abilities and goals (id. at p. 5).  The IHO also noted that the parent did not provide any testimony regarding her observations of the student over the course of the school year or of the impact the private services "potentially had" on the student (id.).  The IHO determined that equitable considerations did not favor the parent and, therefore, either the complete denial of an award or a reduction in the requested rate to the lowest rate set by the district would be warranted (id. at p. 7).  In addition, the IHO found equitable considerations weighed against the parent because she did not act in good faith to locate a provider at the district-approved rate for SETSS; the EDopt providers were not sufficiently qualified; and the evidence did not demonstrate that the services provided an educational benefit to the student (id.).

Next, the IHO denied the district's motion to dismiss the parent's 2023-24 school year claims on the basis of subject matter jurisdiction (IHO Decision at pp. 7-8).  The IHO determined that students parentally placed were entitled to maintain a due process hearing or obtain relief requested in a due process complaint notice and further denied the district's motion because the district did not challenge the amount or frequency of services requested by the parent in her due process complaint notice (id. at p. 8).

The IHO also denied the district's motion to dismiss on the basis of ripeness, determining that the district failed to demonstrate what activities it engaged in either before or after the school year started or that it provided any services to the student for the 2024-25 school year (IHO Decision at p. 9).  However, regarding the parent's claims for the 2024-25 school year, the IHO granted the district's application to dismiss based on a June 1st affirmative defense (id.).[7]  The IHO also determined, in the alternative, that if the June 1st affirmative defense was not applicable, the parent would still be denied relief for the 2024-25 school year because the parent would not have met her burden of proof (id. at p. 10).  The IHO determined that no contracts were provided for the 2024-25 school year, even though the school year had started before the impartial hearing commenced; no evidence was presented regarding who was assigned as a provider, what their certification and qualifications were, and what their education or work experience was; no time sheets or session notes were submitted; and no assessments or evaluations of the student from the beginning of the year were provided (id.).  The IHO also determined that equitable considerations did not favor the parent because there was no evidence regarding the certifications of the various providers for the 2024-25 school year; no evidence regarding a contract to outline the terms of services or demonstrate a financial obligation to pay for services; and the parent failed to demonstrate that the services were likely to provide an educational benefit to the student (id.).  The IHO also determined that the parent failed to show what efforts she took to locate a provider at the district's "scheduled rate" nor provided requisite notices to the district regarding the 2024-25 school year, and that the parent failed to show she acted in good faith in communicating with the district or seeking a provider from the district (id.).

Accordingly, the IHO denied the parent's request for funding/reimbursement for the services provided by EDopt to the student during the 2023-24 and 2024-25 school years (IHO Decision at p. 10).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in determining that (1) the EDopt administrator was inadequate to testify as a witness for the student's progress; (2) there was a lack of evaluative data to determine appropriateness of the SETSS provided by EDopt; (3) proof of the provider's certification was required; (4) the parent did not present evidence of the actions she took to locate a provider at the district-approved rate, arguing that it is the district's responsibility to ensure services were delivered; and (5) that the parent did not send the requisite 10-day notice to notify the district of the need for a provider.[8]  As relief, the parent requests an order "overturn[ing] the IHO's decision and ordering the contract rate of $195 and $145 for individual and group SETSS" (Req. for Rev. at p. 10).[9]

In an answer, the district denies every allegation set forth by the parent in her appeal and argues that the IHO's determinations that EDopt did not provide SETSS that addressed the student's special education needs during the 2023-24 and 2024-25 school years and that equitable considerations did not favor the parent should be affirmed.  As for the district's cross-appeal, it argues that the IHO's determinations that the parent provided sufficient proof that she provided her written requests to the district for special education services for the student by June 1 for the 2023-24 and 2024-25 school years should be reversed.  As relief, the district argues that the parent's appeal should be dismissed with prejudice, that its cross-appeal be sustained, and for the IHO's decision to be affirmed.

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

At the outset, the district does not appeal from the IHO's determinations that he possessed subject matter jurisdiction to preside over the matter, that the parent's claims were ripe, and that the district denied the student a FAPE for the 2023-24 school year and that aspect of the IHO's decision need not be further addressed.[12]

A. Preliminary Matters – June 1 Deadline

Next, I turn to the parties dispute over whether the parent properly requested services from the district prior to June 1 for both the 2023-24 and 2024-25 school years.  The district correctly notes that the IHO's decision contains conflicting determinations regarding whether the parent timely provided a written request for dual enrollment services by June 1 of each school year in question and that any determination that the parent did provide a written request to the district by June 1 was in error.

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district 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]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B., 2011 WL 4375694, at *6, quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

Here, for the 2023-24 school year, the IHO contains findings that the parent's claim was barred and dismissal was required, but then in contrast determined that the parent created and sent a notice to the district prior to June 1, 2023 and that the district failed to present any evidence to refute submission of the written request (IHO Decision at pp. 4-5).  For the 2024-25 school year, the IHO again made contradicting findings.  At the outset, the IHO determined that Education Law § 3602-c barred the parent's claims for the 2024-25 school year and required "a dismissal of the action," but then determined, "[t]he record contain[ed] sufficient evidence to show a June [f]irst letter was created or sent to the [district] June 1, 2023" and that the district failed to present any evidence to refute service of the June 1st letter (IHO Decision at p. 9).

In addition, there is no allegation raised by the parent on appeal that the district did not properly raise a June 1 affirmative defense.  Moreover, the IHO indicated in his decision that the district made an application to dismiss the parent's due process complaint notice based on the June 1 requirement of § 3602-c for both the 2023-24 and 2024-25 school years and the parent does not refute or appeal such findings (see IHO Decision at pp. 4, 9).  Additionally, the parent does not allege that through the district's actions it waived the statutory requirement for written notice from the parent for equitable services (see Application of the Bd. of Educ., Appeal No. 18-088).[13]

Regarding the 2023-24 school year, the IHO properly denied the district's application to dismiss based on the June 1st requirement and correctly determined that the hearing record contained sufficient evidence that the parent sent a notice prior to June 1, 2023 (IHO Decision at pp. 4-5).  The parent introduced a copy of a document purported to be a June 1 notification letter, dated May 24, 2023 (Parent Ex. E).  In the May 2023 letter, the parent indicated that she intended to place the student at a nonpublic school for the 2023-24 school year and requested that the district provide the student with special education services (id.).  The district argues that the May 2023 letter is not proper because it was not signed with the parent's signature but rather a conformed signature of "/s/" and because it was sent from an email address where it was unknown if the individual behind such email was a person in a parental relation with the student.  The district further argues that the lack of testimony from the parent supports the conclusion that there is no evidence to show the parent authorized the unsigned June 1 letter to be sent.

There is no explicit prohibition set forth in Education Law § 3602-c against parents authorizing a third-party to deliver a June 1 request for dual enrollment services to a school district on the parents' behalf.  Nor is there a requirement in the statute that the parent must use a particular type of signature or is precluded from the use of a conformed signature (see Educ. Law § 3602-c[2]).  However, the statute does indicate that services shall be provided to students who attend nonpublic schools within the district "upon the written request of the parent or person in parental relation" (id.).

I find the district's argument regarding the parent's May 2023 letter unpersuasive.  During the impartial hearing the district did not assert that the letter was noncompliant with the statutory requirement because it was delivered by an agency rather than by the parent herself.  In fact, during the impartial hearing, the district did not present any argument regarding the May 2023 letter and did not seek to question the parent specifically regarding her intentions to send a request for dual enrollment services. Moreover, the hearing record shows that a letter was sent from an agency, which was signed by the parent, to several district email addresses, including "CSE5," "CSE6," "CSE7," and "CSE8," and four individuals on May 24, 2023, prior to June 1, 2023, and there was no assertion during the impartial hearing that the request for dual enrollment services was not received by the district (Parent Ex. E).  Additionally, the district did not introduce any witness testimony or documentary evidence to refute that the letter was transmitted to the district or what the district did as an action in response to receiving this letter (see Tr. pp. 1-36).[14]   The parent was included in the email and attachment form and there is no indication that the parent did not intend to send the letter (see Parent Ex. E).  Accordingly, although the hearing record is not as developed as one would expect for a simple threshold issue that should be easy to establish on either side, overall, the hearing record minimally weighs in favor of finding that the parent's request for equitable services for the 2023-24 school year was timely submitted to the district on the parent's behalf prior to June 1, 2023.

Regarding the 2024-25 school year, as noted above, the IHO's decision contained contradicting findings but careful review of the entire hearing record shows no evidence that the parent transmitted a written request to the district prior to June 1, 2024.  The parent introduced a copy of a district form dated May 24, 2024, which was intended to be used by the parent to indicate to the district that she intended to place the student at a nonpublic school for the 2024-25 school year and wanted the district to provide the student with special education services (Parent Ex. F).  However, the district argues that the May 2024 letter was only sent from an attorney to the advocacy agency that assisted the parent in this matter and that the May request for dual enrollment services was not further transmitted to a district email address.  The evidence in the hearing record supports the district's argument.  A review of the letter purportedly sent on behalf of the parent reveals that it was not transmitted to the district and was only sent to the agency that was assisting the parent in this matter (id. at p. 2).  Accordingly, I find that based on documentary evidence itself, the parent did not send the letter request for dual enrollment services to the district and the district was not obligated to implement special education services for the student in the nonpublic school during the 2024-25 school year.  Those portions of the  IHO's decision that can be read to find the contrary must be reversed.

Based on the findings above, the remaining issue to be resolved is the parties dispute over  the substantive programming for the 2023-24 school year and whether the SETSS unilaterally obtained from EDopt by the parent for the student provided specially designed instruction to address the student's educational needs.

B. 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 private services from EDopt 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]).[15]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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

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

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

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

In this case, the IHO found that the testimony and documentary evidence did not show that the parent met the Frank G. standard or reflect that EDopt "provide[d] educational instruction specially designed to meet the unique needs" of "the student that w[ould] enable [her] to make progress" during the 2023-24 school year (IHO Decision at pp. 4, 5).  On appeal, the parent asserts that the IHO incorrectly ruled that the EDopt administrator was inadequate to testify for the student, that there was a lack of evaluative data to determine whether the unilaterally obtained services were appropriate, that proof of the SETSS providers' certification was required, and that the parent needed to present evidence of her efforts to locate a provider at the district-approved rate.

The district, in an answer, argues the IHO's denial of public funding of the SETSS EDopt delivered to the student should be affirmed, contending that the parent failed to prove the SETSS were appropriate for the student.

1. Student's Needs

While not in dispute, a discussion of the student's needs provides context for the issue to be resolved, namely, whether EDopt delivered specially designed instruction to the student during the 2023-24 school year.  As further detailed below, the student exhibited primarily speech and language needs.

Regarding the student's cognitive skills, the May 2023 IESP, which was developed when the student was 10 years old and attending fifth grade, reflected that administration of the Wechsler Intelligence Scale for Children—Fifth Edition (WISC-V) to the student yielded a full scale IQ of 97 which fell within the average range (Parent Ex. B at p. 1).  The IESP noted the student's performance yielded average scores on the verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed composites (id.).  The IESP indicated that the student's performance on the Wechsler Individual Achievement Test-Fourth Edition (WIAT-IV) reflected standard scores which fell within the high average range in word reading, the low average range in reading comprehension, the average range in numerical operations, and the low range in math problem solving (id.).

With respect to the student's functional performance, according to the IESP and as briefly noted above, the student had made minimal progress with her receptive and expressive language skills (Parent Ex. B at p. 2).  The IESP noted that while the student was a fluent decoder, listening and reading comprehension were challenging for her; she relied "heavily" on visuals and struggled to comprehend and integrate abstract concepts and strategies into her learning (id.).  The IESP indicated that the student's oral and written expressions were, "significantly below grade level," but noted that the student's number sense and computational skills were "near grade level" (id.).  However, the IESP reflected that when the student was confronted with math vocabulary terms and word problems, she often confused target words, even when read to her, and could not apply her quantitative reasoning to solve even one-step word problems correctly (id.).  According to the IESP, the student required individualized instruction, pre-teaching, post-teaching, and review to learn new skills (id.).

Regarding language development, the IESP noted that the student presented with auditory processing delays and expended significant mental energy to complete a task (Parent Ex. B at p. 2).  The IESP indicated that the student was easily overwhelmed by auditory stimuli and struggled to follow multi-step commands (id.).  According to the IESP, those challenges significantly impacted the student's independent classroom functioning and self-esteem, adversely affecting her ability to see herself as a full member of the classroom community (id.).  With respect to the impact of the student's needs relative to her participation and progress within the general education curriculum, the IESP noted that the impact of the student's speech and language impairment was weak expressive language and receptive language skills, and that "[s]peech-language therapy w[ould] target [the student's] language needs, including comprehension, inferencing, vocabulary, and verbal reasoning skills" (id. at p. 3).

In terms of social/emotional development, the IESP revealed that the student was an outgoing, kind, and well-behaved student with healthy relationships with peers and teachers (Parent Ex. B at p. 2).  According to the IESP, the student was hardworking and exerted considerable effort to learn and complete academic assignments, with curriculum and tasks mostly modified to meet her skill level (id.).  In terms of physical development, the IESP noted that according to a review of available records at that time, the student's overall health appeared to be good (id.).  The student's fine and gross motor skills appeared to be age appropriate and the parent reported no concerns regarding the student's physical development at the time of the May 2023 CSE meeting (id. at p. 3).

The May 2023 CSE identified the supports and strategies the student needed to address her management needs including a multisensory approach to learning; preferential seating; verbal and visual cues; pre-exposure to vocabulary and concepts; graphic organizers; reading strategies including underlining, summarizing while reading, and re-reading sentences when necessary; chunking of math word problems; built in study skills; and broken up assignments (Parent Ex. B at p. 3).  To address the student's identified needs, the May 2023 CSE recommended the student receive five periods per week of group SETSS and two 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at p. 7).

2. Appropriateness of SETSS provided by EDopt

As an initial matter, the IHO found that the "lack of evaluative data" in the EDopt 2023-24 progress report rendered it "unpersuasive," and that the progress report did not reflect the student's academic levels at the start or end of the school year, purportedly to show progress.  I first note that it was not the parent's responsibility to evaluate the student and identify her needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).

The significance of the IHO's statement about the evidence of progress is not entirely clear, but to the extent the IHO determined that the services from EDopt were inappropriate because the evidence failed to show that the student actually succeeded by making a requisite amount of progress, such a finding would not comport with the standard for assessing a unilateral placement.  It is well settled that a finding of a particular amount progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  However, while not dispositive, a finding of progress is, nevertheless, a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]).

While review of the hearing record shows that there is insufficient evidence to support the IHO's viewpoint that a "lack of evaluative data renders the contents of the EDopt progress report as unpersuasive," the IHO's finding is correct, as a factual matter, that the parent provided no evidence regarding her observation of the student over the school year at issue or the impact that the agency's or provider's services potentially had on the student's progress (IHO Decision at p. 5). Thus, there is no evidence of progress from the parent during the 2023-24 school year that might have reinforced the parent's case. However, the inquiry does not end with a progress analysis alone because, as noted above, progress is not a dispositive factor in determining whether or not unilaterally obtained services are appropriate.[16]

While review of the SETSS progress report tends to show that the student's academic needs were addressed, her speech and language needs, as discussed above, remained largely unaddressed during the 2023-24 school year (see Parent Ex. H).

Regarding specially designed instruction, the SETSS progress report identified the student's academic needs in reading, math, and writing; her learning style; and her social/emotional and physical development needs (see Parent Ex. H).  Although the progress report reflected reading, writing, math, and executive functioning goals, in this instance, there is little information in the SETSS progress report regarding how the provider was addressing the student's expressive language and receptive language skills and there is only one specific goal, for the student to improve her ability to follow multistep verbal instructions, for those skills (see id.).  I note that the SETSS provider reported that the student's listening comprehension "continue[d] to require significant support," which was "crucial" to maintaining the gradual improvement she demonstrated (id. at p. 1).

In the contract between EDopt and the parent, EDopt agreed to provide services "as per the last agreed upon IEP/IESP/[findings of fact and decision]" (Parent Ex. C at p. 3).  At the beginning of the 2023-24 school year, the most recent IESP for the student was the May 2023 IESP and there was no challenge in the due process complaint notice to the adequacy of the design of that IESP (Parent Ex. A).  Thus, the May 2023 IESP was the last agreed upon IESP at the time EDopt entered into the arrangement with the parent (see Parent Ex. C at p. 2).  As noted, in addition to five periods of SETSS per week, the student's May 2023 IESP also recommended that the student receive two 30-minute sessions per week of individual speech-language therapy (Parent Ex. B at p. 7).  Therefore, it appears as though the parent entered into a contract for delivery of speech-language services to the student for the 2023-24 school year; however, the hearing record does not contain evidence that speech-language therapy was delivered to the student.

Accordingly, the hearing record does not demonstrate that EDopt provided speech-language therapy to the student, despite speech-language therapy being listed as a service type that would be delivered under the contract between the parent and EDopt (see Parent Exs. C at p. 3; F at pp. 1-20; G ¶¶ 1-5).  Moreover, there is no information in the record to explain why speech-language therapy services were not provided to this student or how the speech and language needs were otherwise addressed (see Parent Ex. C at p. 3).  Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.  Moreover, the parent does not dispute the CSE's classification of the student as a student with a speech and language impairment nor the CSE's recommendation of speech-language therapy for the student in the May 2023 IESP.

The hearing record is also devoid of evidence regarding the student's schedule or the student's non-SETSS instruction at the nonpublic school, or how SETSS would have been connected to or supported the instruction provided by the nonpublic school during the 2023-24 school year.  Additionally, it is not clear from the hearing record where the student received SETSS instruction.[17]

Without such information, it is not possible to ascertain whether the student received special education support to enable her to access the general education curriculum or whether the SETSS delivered to her supported her classroom functioning.  Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate to meet her needs.

Based on the foregoing, given the totality of the circumstances, the evidence in the hearing record supports the IHO's finding, albeit for different reasons, that the parent failed to meet her burden to establish that the unilaterally obtained SETSS were specially designed to meet the student's needs.  Consequently, there is no reason to disturb the IHO's ultimate finding regarding EDopt services.

VII. Conclusion

The hearing record supports a finding that the IHO correctly determined that the parent failed to meet her burden to demonstrate that the unilaterally obtained services delivered by EDopt during the 2023-24 school year were appropriate.  The evidence does not show that the parent sent a request for dual enrollment services to the district prior to June 1, 2024 and, therefore her claims seeking funding for the 2024-25 school year must be dismissed.  Therefore, the necessary inquiry is at an end.

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

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.