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) reimburse her for her son's private services delivered by Think Pink LLC (Think Pink) for the 2023-24 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

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

Briefly, a CSE convened on August 7, 2018, and found the student eligible for special education as a student with a speech or language impairment (Parent Ex. B at p. 1).[1]  At that time, the student was eight years old and exhibited average cognitive skills and low average to borderline delayed language skills (id. at pp. 2, 3).  Additionally, the student exhibited articulation difficulties and severely delayed phonological awareness skills (id. at p. 3).  The CSE developed an IESP for the student (August 2018 IESP) and recommended the student receive four periods per week of group special education teacher support services (SETSS) and two 30-minute sessions per week of individual speech language therapy in English (id. at p. 9).[2]

The hearing record does not include any information regarding the student's educational history between the August 2018 IESP and the 2023-24 school year.

On September 1, 2023, the parent executed an "Agreement for Services" with Think Pink to provide four hours per week of "services" to the student for the 2023-24 school year at a rate of $175.00 per hour (Parent Ex. C).  According to the "CEO" of Think Pink, the student began receiving SETSS on September 1, 2023 (Parent Ex. D ¶ 10; see Parent Ex. I at p. 1).

A. Due Process Complaint Notice

In a due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) or equitable services for the 2023-24 school year by "failing to provide special education and related services providers" (Parent Ex. A at p. 1).  The parent alleged that the student required the same special education services and related services as set forth in the August 2018 IESP (id.).  For relief, the parent requested a pendency hearing and an order awarding direct funding or reimbursement for the parent's chosen providers at an "enhanced rate" (id. at p. 2).

B. Impartial Hearing Officer Decision

An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 13, 2024 (Tr. pp. 1-18).  In a decision dated January 31, 2025, the IHO found that the district denied the student a FAPE for the 2023-24 school year and that the parent's unilaterally-obtained services were not appropriate (IHO Decision at p. 2).  The IHO briefly summarized the legal standard and noted that the district had the obligation to implement the services in the student's IESP and conceded that it failed to implement the student's IESP for the 2023-24 school year (id. at p. 3).  Turning to the appropriateness of the unilaterally-obtained services, the IHO noted that the parent relied on an IESP from when the student was eight years old and that the Think Pink progress report was "generic," and, therefore, the hearing record lacked "independent information as to [the student's] current strengths and weaknesses, goals, and [the student's] needs" (id. at p. 6).  The IHO found the testimony of the Think Pink CEO and the Think Pink progress report to be "self-serving, vague, and evasive" (id.).  More specifically, the IHO concluded that the progress report the parent submitted to demonstrate the appropriateness of the unilaterally-obtained services was not credible, in that no explanation was provided as to why the student continued to need the same level of SETSS that was recommended several years ago, and the "entity" that prepared the progress report "clearly h[ad] a financial interest in the outcome of the proceeding" (id.).  Additionally, the IHO found that the hearing record was "void of information as to what evaluations or assessments" were conducted to determine whether the student was receiving an appropriate program (id.).  Due to the lack of credible evidence, the IHO found that the parent failed to meet her burden of proving the appropriateness of the unilaterally-obtained services and dismissed the parent's due process complaint notice with prejudice (id.).

IV. Appeal for State-Level Review

The parent appeals from the IHO's decision.  According to the parent, the district conceded in its response to the due process complaint notice that the services recommended in the August 2018 IESP were appropriate for the 2023-24 school year; the IHO applied an incorrect legal standard and the burden of proof is on the district; and even if the parent was required to prove the appropriateness of the unilaterally-obtained services, the progress report was sufficient to meet the burden of proof and the IHO erred in finding the Think Pink CEO's testimony and the progress report to be not credible or "'self-serving, vague, and evasive.'" The parent requests an order directing the district to fund four periods of unilaterally-obtained SETSS per week and an award of compensatory speech-language therapy, which the parent asserts the district failed to provide to the student during the 2023-24 school year.

In an answer, the district argues that the IHO's decision should be affirmed as the parent did not meet her burden of proof and the hearing record does not demonstrate the unilaterally-obtained services were appropriate for the student.  Additionally, the district contends that the Think Pink CEO's testimony was excluded during the hearing and the parent did not appeal from this finding; accordingly, the district asserts the witness' affidavit testimony (Parent Ex. D) should not be considered.

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]).[3]  "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.).[4]  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

Initially, as neither party has appealed from the IHO's determination that the district failed to meet its burden to prove that it offered the student a FAPE for the 2023-24 school year, this finding is final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).[5]

Additionally, as noted by the district, the IHO excluded the affidavit testimony of the Think Pink CEO (Tr. pp. 8-13).  The parent submitted an affidavit of the Think Pink CEO and an affirmation of the Think Pink CEO and they were admitted into evidence without objection by the district (Tr. pp. 5-6; see Parent Exs. D; G).  However, the attorney for the district requested cross-examination of the Think Pink CEO and after allowing the witness some time to appear via video conferencing, the IHO excluded the witness' testimony because the witness did not appear on camera (Tr. pp. 8-13).  The parent does not directly appeal this finding and instead asserts that "there [wa]s no basis to say that [the] evidence was not 'credible' or that 'the testimony of the witness and the progress reports [was] self-serving, vague, and evasive'" (Req. for Rev.¶17).  Certainly with respect to the witness testimony by affidavit, the parent has not provided a sufficient argument to depart from the IHO's decision to exclude the testimony or from the description of it as evasive without providing, at the very least, an explanation as to why the witness was unable to appear over video conferencing after being provided with time to do so.[6]  Accordingly, the testimony of the Think Pink CEO will not be considered on appeal as it was properly excluded from the hearing record.

A. 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 Think Pink 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]).[7]  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. The Student's Needs

Although the student's needs are not at issue, a review thereof provides context for discussion of the issue to be resolved, namely, whether the parent sustained her burden to establish the appropriateness of the unilaterally-obtained SETSS delivered by Think Pink to the student during the 2023-24 school year.

Here, evidence of the student's needs consists primarily of the information contained in the student's August 2018 IESP, developed when he was eight years old (Parent Ex. B).  The evidence in the hearing record does not include information as to the student's special education needs between August 2018 and the 2023-24 school year, nor does it identify what grade the student was in during the 2023-24 school year (see Tr. pp. 1-18; Parent Exs. A-J).

According to the student's August 2018 IESP, his overall cognitive skills were in the average range, with weaknesses in verbal reasoning and vocabulary skills (Parent Ex. B at pp. 1, 2).  The IESP noted that "[t]ranslation helped somewhat," but the student "did not seem to get the essence of word meaning" and he was not able to find appropriate words to describe his answers (id. at p. 2).  Assessment of the student's language skills indicated moderate delays in sentence comprehension and understanding spoken paragraphs, borderline delay for recalling sentences, and overall language functioning in the low average/borderline range (id. at p. 1).  On measures of the student's phonological awareness, oral language, and reading skills, the student exhibited moderate delay in tasks requiring segmenting sentences, syllables, and phonemes, and identifying initial, medial, and final sounds in words (id. at p. 3).  The student's performance was in the severely delayed range on tasks requiring him to say words without one of its parts, substitute sounds in words, and produce sounds when shown letters including various vowel combinations and consonant blends, suggesting a "possible phonological issue (or auditory processing)" (id.).  The IESP reflected that the student's performance on tasks measuring his ability to read "made-up words" was also in the severely delayed range (id.).  Academically, the IESP reflected the following Wechsler Individual Achievement Test-Third Edition academic achievement subtest standard scores: word reading (57), decoding (66), reading comprehension (46), numerical operations (79), math fluency (addition 70, subtraction 68, multiplication 65), and math problem solving (65) (id. at pp. 1-2).

The August 2018 IESP reflected reports that the student "struggle[d] with his clarity of speech when he expresse[d] himself" and that an assessment of his oral motor functioning for speech production indicated that, at times, he exhibited a tongue thrust and forward jaw at rest (Parent Ex. B at p. 3).  Additionally, the student presented with reduced tongue muscle tone, control, mobility, and ability to differentiate movement from his jaw (id.).  The parents expressed concerns about the student's "articulation struggles," and that "his speech difficulties [we]re going to interfere in his language learning" (id.).  Socially, the IESP indicated that the student was "well behaved at home and in school," and that he got along with adults and some peers (id. at p. 4).  The parents expressed concerns that the student did not "have too many friends in school," and that he lacked the social skills to make friends (id.).  No physical development concerns were reflected in the IESP (id.).

2. SETSS from Think Pink

At the outset of this discussion, I must address some of the IHO's findings.  The IHO determined that the hearing record lacked "independent information" regarding the student's then-current strengths, weaknesses, goals, and needs, and was void of "evaluations or assessments" conducted by Think Pink that ensured the SETSS delivered were appropriate (IHO Decision at p. 6).  However, to the extent the IHO faulted the parent for those deficiencies, it was not the parent's responsibility to evaluate the student and identify his 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]).  Conversely, the parent asserts that the progress report detailed the student's areas of need, progress made in those areas, and the methodologies used, therefore, according to the parent, the IHO erred in finding that the SETSS progress report was not "credible" and the hearing record lacked independent information about the student's needs (Req. for Rev. ¶ 17).  Additionally, the parent argues that given the many areas of weakness described in the student's progress report, it was not correct for the IHO to conclude that there was no explanation as to why the student continued to require the same level of SETSS, or an evidentiary basis to conclude that the progress report was not credible.

Initially, as discussed above, the Think Pink CEO's testimony was excluded from the hearing record, accordingly, the appropriateness of the unilaterally-obtained services is based solely on the documentary evidence.[8]

Turning to the appropriateness of the student's SETSS, monthly invoices from September 2023 through April 2024 submitted by the parent show that SETSS were generally delivered in two hour sessions twice weekly from 2:00 p.m. to 4:00 p.m. by a provider who held students with disabilities and childhood education classroom teacher certificates (Parent Exs. H; I).[9]

In a SETSS progress report dated April 2, 2024, the SETSS provider described the student as bilingual, with Yiddish as his primary language, who "display[ed] a learning disability which impact[ed] his academic, social and behavior skills" (Parent Ex. J at p. 1).

In this instance, the IHO determined that the progress report was created by an entity that had a financial interest in the outcome of the proceeding and that the report along with the testimony of the Think Pink CEO was "self-serving, vague, and evasive" (IHO Decision at p. 6).  The IHO did not offer much other description as to the basis for her findings as to why the information contained within the progress report was not credible (id.).  However, it is worth noting that, as discussed above, the Think Pink CEO was offered an opportunity to appear at the hearing to testify via video conferencing and after being given approximately 30 minutes to work out any technical difficulties including options to use her phone or computer, she was unable to do so and the attorney for the parent only indicated the reason was "unexpected technical trouble" (Tr. pp. 10-13).  It appears that the IHO potentially took the witness' inability to appear via camera as being evasive, and the exclusion of that witness' testimony, as discussed above, was not appealed from.

Turning to the document itself, the IHO's finding that the information contained within the document was not "credible" appears to be more of an assessment of the weight to give that information rather than a credibility determination (see S.W. v. New York Dep't of Educ., 2015 WL 1097368, at *15 n.6 [S.D.N.Y. Mar. 12, 2015][noting that an IHO's decision to discredit portions of a document was not based on a credibility determination of a witness and that the SRO had the same ability to weigh the evidence]).  However, it is also worth noting that even where a document is admitted, particularly here, the IHO as the trier of fact is free to accord the proper weight to it and a consideration as to whether it was supported by the preparer's testimony or whether it was not subject to cross-examination is valid.  Such an explanation was provided, despite the parent's contention, and upon review indicates the IHO gave little weight to the document as submitted which is well within her discretion (see IHO Decision p. 6). Accordingly, here, I undertake my independent review of the progress report while also noting the above considerations as to its veracity, including the weight accorded by the IHO,

In reading, the SETSS progress report reflected that the student had mastered decoding word endings and words with a prefix and suffix, blending consonant sounds including digraphs, and reading a grade level paragraph with minimal self-correction errors (Parent Ex. J at p. 1).  According to the report, the student "struggle[d] with fluency and dipthongs," and was working on increasing his speed when reading and blending two vowel sounds together (id.).  The student reportedly mastered answering comprehension questions about a story read aloud, and was working on defining parts of a story, comparing texts, and identifying different types of "passages," such as fiction, nonfiction, novels, and poems (id.).

In writing, the SETSS provider reported that the student mastered completing a paragraph using correct parts of speech, sentence structure, punctuation, and capitalization, and that he struggled with using adjectives, adverbs, and compound sentences (Parent Ex. J at p. 2).  At that time, the student was working on using grade level vocabulary when writing passages and on the writing process, including prewriting, drafting, revising, and editing (id.).

Regarding math, the SETSS report indicated that the student had made progress in multiplication, division and fractions, and struggled with "completing algebraic problems such as finding the missing digit," and "recognizing points of a shape such as angles and lines" (Parent Ex. J at p. 1).  The student was working on following the order operation, understanding percentages, and converting percentages to fractions and decimals (id.).

The SETSS provider reported that the student "ha[d] made significant progress in all areas" in that his "self esteem and behavior ha[d] improved and with every goal[] mastered he [wa]s motivated to put in effort to achieve more goals," and he was a more active participant in group discussions and activities (Parent Ex. J at p. 2).  She recommended that the student "continue receiving his current mandate of services so he c[ould] continue functioning in the classroom setting effectively" (id.).

Regarding specially designed instruction, the SETSS provider reported using a "creative curriculum and a reinforcement schedule," to help the student achieve his goals, and verbal and visual cues to help him complete classwork assignments effectively (Parent Ex. J at p. 1).  However, although the SETSS provider reported using "[f]ormal and informal assessments" to "measure progress and implement interventions when required," none of the referred to assessments were offered into the hearing record (see Parent Exs. A-J).  Additionally, according to the progress report, the SETSS addressed the student's delays and mastery of the student's "short and long term goals based on his IESP," yet at the start of the 2023-24 school year the August 2018 IESP was five years old (Parent Exs. B at p. 1; J at p. 1). While the progress report mentioned the skills the student was working on, the hearing record did not otherwise identify his goals and comparison of the April 2024 progress report with the August 2018 IESP does not support the statement in the progress report that the service was working on mastering the August 2018 IESP goals (Compare Parent Ex. J, with Parent Ex. B at pp. 5-9).

Additionally, although the April 2024 SETSS progress report identified the student's academic needs and some general interventions the SETSS provider used with the student during the 2023-24 school year, the hearing record overall does not provide sufficient evidence describing how the student's special education needs were met during the remainder of the school day in his mainstream classroom when he was not receiving special education support (see generally Parent Exs. A-J).  Lastly, the hearing record is devoid of evidence regarding the curriculum at the nonpublic school, the student's non-SETSS instruction, and how SETSS would have been connected to the instruction provided by the nonpublic school during the 2023-24 school year (see generally Parent Exs. A-J).

3. Speech-Language Therapy

Contributing to a finding that the parent failed to submit sufficient evidence to show that the unilaterally-obtained SETSS were appropriate is that the parent did not submit any evidence showing how the student's needs related to speech-language therapy were being addressed.  Review of the student's August 2018 IESP shows that he exhibited significant speech-language needs, and that according to the parent, the student continued to require those services because he "display[ed] language and speech delays" (Parent Exs. B at pp. 1-3; E ¶ 4).  In an affidavit, the parent asserted that the student was entitled to receive two sessions per week of speech-language therapy,  that the district did not provide those services, and that she was unable to locate a provider (Parent Ex. E ¶¶ 2, 3).  However, there is no indication in the hearing record as to any attempts made to deliver speech-language therapy services to the student.  Additionally, as noted above, there is no indication as to how the student was performing in his general education classes.

Review of the evidence in the hearing record does not show that the student's speech-language needs were addressed during the 2023-24 school year (see Parent Exs. A-J).  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.

Finally, regarding the parents' request for a bank of compensatory education for speech-language therapy, where the parents engaged in self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parents, especially where there is no further development of the record explaining why such services were not provided (see, e.g., Application of a Student with a Disability, Appeal No. 25-027; Application of a Student with a Disability, Appeal No. 25-025). Accordingly, there is no other support in the hearing record for an award of compensatory education.

VII. Conclusion

Given the totality of the circumstances, the evidence in the hearing record supports the IHO's finding that the parent failed to meet her burden to establish that the unilaterally-obtained SETSS were specially designed to meet the student's needs and that there is insufficient basis to award the requested compensatory speech-language services.  Consequently, there is no reason to disturb the IHO's determinations, and there is no reason to reach the question of whether equitable considerations weighed in favor of the parent's requested relief.

I have considered the parties' remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.