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 Targeted Support LLC (Targeted Support) for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which found that the unilaterally obtained services were appropriate.  The appeal must be dismissed.  The cross-appeal must be sustained.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student was initially found eligible for special education services as a student with a learning disability on February 11, 2020 (fifth grade) (see generally IHO Ex. I).[1]  The February 2020 CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS) together with testing accommodations (IHO Ex. I at pp. 8-9).[2]  The February 2020 IESP noted that the student was parentally placed in a nonpublic school (id. at p. 11).

On September 1, 2023, the parent signed an agreement for services with an individual to provide the student with seven sessions per week of SETSS at a rate of $175 per hour for the 2023-24 school year (ninth grade) (Parent Exs. C; D ¶ 1; see Parent Ex. J at p. 1).  Later, during the impartial hearing, the individual with whom the parent contracted asserted in direct testimony by affidavit that she was an employee of Targeted Support (Parent Ex. J).[3]

Next, the CSE convened on November 1, 2023, found that the student continued to be eligible for special education services as a student with a learning disability, and developed an IESP for the student with a projected date of implementation of November 16, 2023 (see generally Parent Ex. B).[4]  The November 2023 CSE recommended that the student receive seven periods per week of direct group SETSS as well as testing accommodations (Parent Ex. B at pp. 7-8).  The November 2023 IESP continued to note that the student was parentally placed in a nonpublic school (id. at p. 10).  On November 9, 2023, the district sent a prior written notice of the student's continued eligibility for special education services and of the recommended special education services for the student (Parent Ex. F at pp. 1-2).

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 school year (see generally Parent Ex. A).  The parent stated that the last program developed by the district was the student's November 1, 2023 IESP and that the parent agreed with the program recommended therein (Parent Ex. A at p. 1).

The parent asserted that she was unable to locate providers to work with the student at the district's "standard rates" for the 2023-24 school year, the district did not provide any, but that the parent found providers willing to deliver the services at "rates higher than standard [district] rate[s]" (Parent Ex. A at p. 1).  The parent requested an order awarding direct funding for seven sessions per week of SETSS at an enhanced rate for the 2023-24 school year along with direct funding of all related services as set forth in the IESP at the rate each provider charged even if higher than the "standard" district rate for each service (id. at p. 2).[5]  The district filed a due process response denying the material allegations contained in the due process complaint notice. (see Parent Ex. E).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 7, 2024 (Tr. pp. 1-26).  In a decision dated January 14, 2025, the IHO found that the district's failure to implement the recommended special education services was a denial of FAPE on an equitable basis for the 2023-24 school year (IHO Decision at p. 3).  In connection with the parent's obligation to demonstrate the appropriateness of the unilaterally obtained services, the IHO found that the progress report described the student's deficits and detailed the strategies used by the provider (id. at p. 4).  The IHO found that the parent demonstrated that the agency provided the student with specially designed instruction that was reasonably calculated for the student to make progress (id.).  The IHO found that equitable considerations did not support the parent's request for relief.  Based on the testimony of the agency director, the IHO found that the parent would not be obligated to pay for the SETSS if the district was not directed to fund the services, despite the parent having signed an agreement for services (id. at p. 6).  Accordingly, the IHO denied the parent's request for funding and dismissed the due process complaint notice (id. at pp. 6-7).

IV. Appeal for State-Level Review

The parent appeals the IHO's denial of relief based upon equitable considerations.  More particularly, the parent asserts that the IHO erred in and among the following ways: finding no financial obligation by the parent to pay Targeted Support for the unilaterally obtained SETSS for the 2023-24 school year; denying the parent's requested relief because there was no evidence that the parent received invoices for the SETSS; and dismissing the parent's claims and denying the parent's requested relief for funding seven periods of SETSS per week for the 2023-24 school year at the rate charged by the provider.  As relief, the parent seeks an award of direct funding of seven sessions per week of SETSS at the rate of $175 per hour for the 2023-24 school year.

In an answer and cross-appeal, the district denies the material allegations contained in the request for review.  The district also asserts that the request for review fails to comply with practice regulations because the verification attached to the request for review was not verified.[6]  In a cross-appeal, the district argues that the IHO erred in finding that the parent met her burden to show that the unilaterally obtained SETSS from Targeted Support were appropriate for the student.  With regard to equitable considerations, the district asserts that the IHO correctly held that parent failed to demonstrate a financial obligation to pay for the unilaterally obtained SETSS because evidence revealed that invoices were directed at the district rather than the parent and the director's testimony further showed there was no meeting of the minds to support a contract.  The district further contends in the alternative that the rates charged were excessive.

The parent did not interpose an answer to the district's cross-appeal.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[7]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [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.).[8]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

Turning to the substance of the parties' dispute, the district does not cross-appeal from the IHO's finding that it denied the student a FAPE for the 2023-24 school year (IHO Decision at p. 3).  Accordingly, the IHO's finding on this issue has become final and binding on the parties and will not be reviewed on appeal (see 34 CFR 300.514[a]; 8 NYCRR200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Unilaterally Obtained Services

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Targeted Support 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]).[9]  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's Needs

Although not in dispute, a brief discussion of the student's needs is necessary to determine the appropriateness of the unilaterally obtained SETSS.

The November 2023 IESP, developed while the student was in ninth grade, contained information from the student's reading specialist that described the student as "intelligent" with a strength in comprehension (Parent Exs. B at pp. 1, 3; J at p. 1).  The student's "main weakness" was in her phonetic skills and although she was reported to have made progress in her ability to read and spell, she was "significantly behind" in both of these areas (id. at p. 1).  The reading specialist administered the Woodcock Reading Mastery Test-III (WRMT-III) to the student on November 3, 2023 and found "lags" in the student's decoding skills which impeded her reading fluency (id.).  It was also noted in the November 2023 IESP that although the student had made gains, she still experienced "extreme difficulty" with spelling and needed "constant practice" to master spelling simple sight words (id.).  The student was described as needing additional review and practice to "become fluent and automatic in both her reading and spelling skills" (id.).  In addition, the November 2023 IESP noted results of the November 21, 2019 psychoeducational evaluation which indicated that the student's overall cognitive score was in the low average range and her academic achievement scores in reading and math were in the below average to average range, with a score in the low range on the sentence building subtest (id. at pp. 1-2).

Additionally, the November 2023 IESP discussed the student's academic skills as gleaned from teacher reports (Parent Ex. B at pp. 1, 3).  In the area of reading, the student was found to be "struggling" especially with fluency, and was reading one year below her grade level with her decoding skills on approximately a fifth-grade level and her reading comprehension skills at a tenth-grade level (id. at p. 3).  The student was also noted to struggle with writing and the IESP described her writing skills as being three years below her grade level (id.).  The November 2023 IESP described the student's writing as using basic vocabulary and hard to understand because of spelling and grammar errors (id.).  In math, the student was reported to be performing two years below her grade level and that she showed difficulty with problem solving and was slow with computations (id.).  The parent reported concerns in all areas of academics and requested testing accommodations for the upcoming Regents examinations (id.).

According to the November 2023 IESP, the student was described as "emotionally well-balanced" with no noted physical development needs (Parent Ex. B at pp. 3-4).  The CSE recommended supports to address the student's management needs including verbal and visual cuing with organized lesson materials, positive reinforcement, preferential seating, repetition, chunking and simplification of directives, small group instruction, graphic organizers, and verbal negotiation/preparation (id. at p. 4).  As a result of the student's needs, the November 2023 IESP noted that the student required SETSS to access the general education curriculum (id.).

2. Unilaterally Obtained SETSS

According to the direct affidavit testimony of the student's SETSS provider, the student received seven 60-minute periods of SETSS per week from November 16, 2023 to June 30, 2024 (Parent Exs. D ¶¶ 1, 3; H).  In her affidavit testimony, the SETSS provider stated that the "services [we]re being provided to the [s]tudent based on the [s]tudent's needs as set forth in the" November 2023 IESP and any "updated information the individual provider obtain[ed] from working with the [s]tudent" (id. ¶ 4).

Turning to the appropriateness of the unilaterally obtained SETSS, in a progress report dated June 30, 2024, the SETSS provider reported that the student was completing ninth grade but struggled with basic skills in phonetics and spelling, as well as difficulties in reading, memory, and math skills (Parent Ex. J at p. 1).  It was noted that school was a "daily challenge" for the student but "she made major progress" with the "teaching, guidance and coaching of her SETSS provider" (Tr. p. 17; Parent Ex. J at p. 1).[10] 

In the area of reading, it was reported that the student was decoding at a fifth-grade level, and her comprehension skills were at the tenth-grade level according to the reading specialist (Parent Ex. J at p. 1).[11]  It was noted that the student had made "tremendous strides" in her ability to read but was still behind and needed continued practice and guidance (id.).  As a result of the student being unable to master spelling simple sight words, she was unable to keep up with taking notes in class and during tests had points taken off because of her misspellings (id.).  The progress report noted that both the SETSS provider and reading specialist "help[ed] bridge the gap in spelling" (id.).  Although the student had shown progress, the SETSS provider found that the student needed to continue to review and practice to be fluent in reading and spelling (id.).

In addition to the previously described areas of difficulty in writing, the student struggled to write neatly especially with taking notes in class (Parent Ex. J at p. 2).  The student's notes were difficult to decipher after class and the student often needed notes from other students to review the lesson (id.).  According to the progress report, the student was unable to complete a ninth-grade writing or history essay by herself because the student had not yet acquired the spelling and writing skills to conduct such tasks (id.).  In math, it was reported that the student often made "careless mistakes with the negative and positive value of integers" (id.).  Further, because the student had a noted weakness with memory, her ability to memorize "formulas and postulates" was a "major struggle" that caused the student to feel "lost" in completing math problems which impeded her success in math (id.).  She required that new concepts "be retaught a few times" and also required "much assistance" when practicing math examples (id.).  Lastly, in terms of the student's social/emotional functioning, it was described that her academic weaknesses did not interfere with her socially as she was noted to be adjusted and have many friends (id.).  The SETSS report set forth 16 student goals for the student in the areas of spelling, writing, math, and reading (id. at pp. 2-3).

The SETSS provider summarized the student's progress and found her to be cooperative and "responding extremely well to academic intervention" (Parent Ex. J at p. 2).  In addition, the SETSS provider noted that she had "been implementing various modalities to aid [the student's] many deficits" to include "verbal and visual cuing with organized lesson materials, repetition, chunking and simplification of directives, graphic organizers, verbal negotiation/preparation and constant positive reinforcement" (id.).[12]  The progress report recommended that the student required SETSS to "fully access the general education curriculum" at a continued mandate of seven 60-minute sessions per week (id.).  Finally, the SETSS provider noted that the student benefited from the testing accommodations listed on the November 2023 IESP for the Regents examinations (id.).

The foregoing evidence in the hearing record does not support a finding that the parent met her burden under Burlington-Carter to prove that the services she unilaterally obtained for the student constituted specially designed instruction designed to address her unique educational needs.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  As noted above, the hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school.  Thus, it is not possible to ascertain whether the student received any special education support in the classroom to enable her to access the general education curriculum or how the SETSS delivered to her supported her functioning in the classroom, even if provided in a separate location in accordance with the IESP developed for her by the district.[13] Indeed, the student's significant delays in decoding and writing, as well as math delays, raise questions with respect to the modification of instruction, strategies and supports specially designed to afford her access to the ninth grade general education curriculum that she received at her private placement during the 2023-24 school year.  Additionally, there is no information in the hearing record about the student's reading specialist other than the information contained in the November 2023 IESP, which referenced a November 2023 reading specialist report and WRMT-III results (see Parent Ex. B at pp. 1-2), although the progress report briefly notes that the reading specialist has also been providing the student with unspecified spelling support (Parent Ex. J at p. 1)  Accordingly, the hearing record lacks information concerning the student's general education school in terms of the instruction and curriculum provided, which necessitates assessing the unilaterally obtained services in isolation from the student's general education private placement.  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, under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate.  Here, the student's program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally obtained SETSS, and when viewed together, with the idea that the specially designed instruction should support the student's access to the curriculum, I am not convinced that the evidence adequately supports that finding.

Here, given the lack of evidence concerning the student's specialized reading instruction and how the SETSS she received supported her in the general education classroom, the totality of the circumstances does not support an award for reimbursement or funding for the unilaterally obtained SETSS.  Accordingly, I find the evidence in the hearing record does not support the IHO's finding that the parent met her burden that the SETSS were appropriate for the student, and therefore, she is not entitled to her requested relief.

VII. Conclusion

The evidence in the hearing record supports the district's argument that the IHO erred in determining that the parent met her burden to demonstrate the appropriateness of the unilaterally obtained SETSS during the 2023-24 school year.  The IHO similarly reached a decision to deny relief, albeit on different grounds.  However, in light of my determinations herein, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations weigh in favor of the parent's request for relief (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO decision dated January 14, 2025 is modified by reversing that portion which found the parent met her burden to show that the unilaterally obtained SETSS were appropriate.