I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) that found that her unilateral placement of the student at In Balance Academy (In Balance) for a portion of the 2023-24 school year was not appropriate.  Respondent (the district) cross-appeals from that portion of the IHO's decision that found equitable considerations weighed in favor of awarding the parent tuition for her unilateral placement of the student at Turnbridge Residential Treatment Center (Turnbridge) for a portion of the 2022-23 and 2023-24 school years.  The appeal must be sustained.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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, 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 this case and the IHO decision will not be recited in detail.

The student received diagnoses of an attention deficit hyperactivity disorder (ADHD) and dysgraphia in elementary school and was provided with special education services from the district until he was found no longer eligible in 2019 (Parent Exs. D at p. 3; Y ¶¶ 6, 9, 18).  In March 2023, a private psychiatrist conducted an initial psychiatric evaluation of the student (Parent Ex. D at pp. 1-4).  At that time, the student was a 16 year old high school sophomore who struggled with depression symptoms and substance abuse (see id.).  The psychiatrist concluded that the student "would most certainly benefit from medication for major depression" (id. at p. 4).

The parent enrolled the student at Turnbridge on April 28, 2023 for "treatment of polysubstance abuse and worsening mental health" (Parent Ex. I at pp. 1, 2).[1]  The student stayed there for four months, at which point he appeared ready to go home and re-enroll in high school, and was discharged on August 25, 2023 (Parent Exs. I at p. 1; M at p. 11; Y ¶¶ 25, 28).  According to the parent, once home, the student was unsuccessful "[w]ithout the necessary structure and support" and resumed substance use, so she enrolled the student back at Turnbridge on September 4, 2023, in a "more intensive and secure" version of that program (Parent Exs. M at pp. 12-28; Y ¶¶ 28, 30, 31).

In a letter to the district dated September 19, 2023, the parent requested that the CSE evaluate the student for special education (Parent Ex. B).  Additionally, the parent noted that she "reserve[d] the right to seek reimbursement" for the student's unilateral placement at Turnbridge "at the public's expense" (id. at p. 3).  The student underwent private psychological testing in October 2023, and a report was prepared in November 2023 (November 2023 psychological evaluation) (Parent Ex. E).

On November 10, 2023, the parent digitally signed a contract with In Balance, an out-of-State residential therapeutic program, for the student's attendance for the remainder of the 2023-24 school year (Parent Ex. Q).[2]  The student stayed at Turnbridge until November 13, 2023 and began attending In Balance on November 14, 2023 (Parent Ex. Y ¶¶ 38, 47).  In a letter to the district dated November 20, 2023, the parent advised that, due to a lack of a CSE meeting and placement recommendation, she enrolled the student at In Balance and reserved the right to seek public funding for that placement and the November 2023 private psychological evaluation (Parent Ex. C).

A CSE convened on December 18, 2023 and found the student eligible for special education as a student with an other health impairment (Dist. Ex. 1 at pp. 1, 16).[3]  The CSE developed an IEP for the student and recommended 12-month programming in a State-approved nonpublic residential school consisting of a 12:1+1 special class for 5 periods per week of math, ten periods per week of English language arts (ELA), five periods per week of social studies, and five periods per week of sciences instruction (id. at pp. 11, 12).  Additionally, the CSE recommended the student receive two 40-minute sessions per week of individual counseling services and two 40-minute sessions per week of group counseling services (id.).

The student remained at In Balance through the remainder of the 2023-24 school year (Parent Ex. Y ¶ 47).

A. Due Process Complaint Notice

In a due process complaint notice dated July 2, 2024, the parent alleged that the student was denied a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years (Parent Ex. A).  First, the parent alleged that the district failed in its child find obligation while the student was enrolled in the district's middle and high schools (id. at pp. 6-7).  Next, the parent asserted that the December 2023 CSE meeting was procedurally flawed in that the CSE failed to consider the parent's private psychological evaluation and failed to conduct evaluations or collect appropriate data on which to base its recommendations, the telephone participants did not have access to the reports at the time of the meeting, and the CSE was not duly constituted (id. at pp. 4-5).  The parent further alleged a number of substantive deficiencies with the student's December 2023 IEP including that the CSE failed to recommend an appropriate program for the student (id. at pp. 5-6).  Additionally, the parent alleged that the district failed to provide the student with a residential school placement for the 2023-24 school year (id. at pp. 4, 6).

The parent asserted that the programs she selected provided specially designed instruction to meet the student's unique needs and that she cooperated with the CSE (Parent Ex. A at p. 6).  As relief, the parent requested tuition reimbursement for the student's attendance at Turnbridge from April 28, 2023 through August 25, 2023 and September 4, 2023 through November 13, 2023, and tuition reimbursement for the student's attendance at In Balance from November 14, 2023 through June 30, 2024 (id. at p. 7).  Additionally, the parent requested reimbursement for the costs of the student's transportation to and from Turnbridge and In Balance and for the private November 2023 psychological evaluation (id.).

B. Impartial Hearing Officer Decision

Following two prehearing conferences, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 14, 2025 and concluded on December 5, 2024 (Pre-Hr'g Tr. pp. 1-27; Tr. pp. 1-177).[4]  In a decision dated February 12, 2025, the IHO found that the district denied the student a FAPE for the 2022-23 and 2023-24 school years (IHO Decision at pp. 10-11).  Specifically, the IHO found that the district failed to satisfy its child find obligations because the district "overlooked clear signs of disability based on [the] [s]tudent's educational history, academic functioning, and behavior and was negligent in failing to order testing for [the] [s]tudent during the 2022-23 school year" (id. at p. 9).  Next, the IHO determined that the district "failed to demonstrate that it comprehensively evaluated [the] [s]tudent and instead relied heavily" on the private psychological evaluation (id.).  Without additional discussion, the IHO concluded that the district "failed to demonstrate the appropriateness of" the student's December 2023 IEP and failed to offer the student a State-approved residential placement pursuant to the December 2023 IEP (id. at p. 11).

The IHO found that the parent demonstrated that the student's unilateral placement at Turnbridge from April 28, 2023 through August 25, 2023 and September 4, 2023 through November 13, 2023 was appropriate (IHO Decision at p. 12).  However, the IHO found that the student's unilateral placement at In Balance from November 14, 2023 to June 30, 2024 was not appropriate because the placement was not reasonably calculated to enable to student to receive educational benefits (id.).  Specifically, the IHO found that it became apparent that the student required a higher level of care and greater 1:1 support, which In Balance did not have the capacity to provide (id.).  The IHO concluded that In Balance "simply did not offer the level of support that [the] [s]tudent required and was unable to adequately address his educational needs," and, therefore, the IHO denied the parent's request for reimbursement for tuition to In Balance (id.).

Regarding equitable considerations relating to the parent's request for tuition reimbursement for Turnbridge, the IHO found that the parent cooperated with the district throughout the IDEA process and there was no evidence in the hearing record to the contrary (IHO Decision at p. 13).  The IHO ordered the district to reimburse the parent for the student's Turnbridge tuition and transportation expenses from April 28, 2023 through August 25, 2023 and September 4, 2023 through November 13, 2023 (id. at pp. 13-14).  The IHO also found that the district relied on the private psychological evaluation when developing the student's December 2023 IEP and ordered the district to reimburse the parent for the cost of that evaluation (id. at pp. 9-10, 14).

IV. Appeal for State-Level Review

The parent appeals the portion of the IHO's decision which found that In Balance was not an appropriate unilateral placement for the student.  The parent argues that In Balance was appropriate due to the student's specific educational and therapeutic needs as identified by the November 2023 psychological evaluation.  The parent further argues that In Balance helped manage the student's ADHD and depression, allowing him to make academic progress, as evidenced by his completion of two courses and earning credits towards a high school diploma.  The parent emphasized that the student's substance use and self-harm were ameliorated at In Balance, which was crucial for his educational progress.  Additionally, the parent argues that the IHO erred by comparing the student's unilateral placement at In Balance with the unilateral placement at Turnbridge, rather than considering the appropriateness of In Balance on its own merits.  The parent argues that the IHO failed to consider the unilateral placement at In Balance under the totality of the circumstances.  The parent requests an award of tuition reimbursement and reimbursement for the cost of transportation to and from In Balance.

In an answer and cross-appeal, the district argues that the IHO correctly determined that the parent failed to meet her burden regarding the appropriateness of the student's unilateral placement at In Balance because the evidence did not establish that In Balance addressed the student's needs.  The district cross-appeals from the IHO's ruling that equitable considerations favored an award of reimbursement to the parent for the student's tuition at Turnbridge.  Specifically, the district argues that the parent failed to express her intent to seek public funding for the unilateral placement at Turnbridge.

In an answer to the cross-appeal, the parent argues that the IHO properly found that equitable considerations weighed in favor of the parent's requested relief.  The parent argues that her ten-day notice clearly stated her intention to seek public funding for the unilateral placement at In Balance.[5]

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[6]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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., 554 F.3d at 252).  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, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "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).

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

The parties do not appeal from the portions of the IHO's decision that found that the district failed to satisfy its child find obligation for the 2022-23 school year, that the district failed to comprehensively evaluate the student and relied upon the parent's private psychological evaluation when developing the student's IEP, and that the district failed to offer the student a FAPE for the 2022-23 and 2023-24 school years.  Nor does the district appeal from the IHO's finding that Turnbridge was an appropriate unilateral placement or the order that it reimburse the parent for the cost of the November 2023 psychological evaluation.  Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (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]).

A. Unilateral Placement—In Balance

As discussed below, review of the information available in the hearing record supports a finding that In Balance addressed the student's substance use, provided therapy to address his mental health needs, and facilitated the student's academic needs such that he was able to earn some credits toward his high school diploma.

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

The parent indicated she chose In Balance based on results from the student's November 2023 psychological evaluation and information from their educational consultant who was familiar with residential placements (Parent Ex. Y ¶¶ 36, 38-40).  According to the November 2023 psychological evaluation report, the student performed in the average range on cognitive and achievement testing (Parent Ex. E at p. 27).  The evaluation report included diagnoses of ADHD; major depressive disorder; specific learning disorders with impairment in writing and mathematics; cannabis use disorder; sedative, hypnotic, or anxiolytic use disorder; other hallucinogen use disorder; and hallucinogen persisting perception disorder (id. at pp. 27-28).

The November 2023 psychological evaluation report indicated that, in terms of the student's ADHD, he "struggle[d] with inhibiting distractions and impulses" which hindered his ability to "self-regulate and make adaptive decisions" (Parent Ex. E at pp. 27-28).  The report included that the student's evaluation results "confirm[ed]" the ADHD diagnosis, in that the student "demonstrat[ed] substantial weaknesses in his verbal working memory and processing speed" (id. at p. 28).  In addition, the report included that, based on "collateral reports," the student demonstrated "disorganization, distractibility, careless errors, [and] hyperactivity" along with difficulty "remembering assignments[] and completing his work" (id.).

Next, the November 2023 psychological evaluation report addressed the student's major depressive disorder and indicated that the student's "ability to see his strengths and capabilities" was "shadow[ed]" (Parent Ex. E at p. 28).  According to the report, the student exhibited "avoidance and escape tendencies" that "le[d] to poor coping, behavioral and social withdrawal, and difficulty maintaining teenage responsibilities" (id.).  The report included that the student's "symptoms result[ed] in the collapse of his self-esteem and, subsequently, his self-reliance, which create[d] maladaptive behavioral patterns" (id.).

In terms of the student's diagnosed learning disorders, the November 2023 psychological evaluation report indicated that the student "continue[d] to show relative weaknesses in the clarity and organization of his writing" as well as "strained and effortful handwriting" (Parent Ex. E at p. 28).  The report indicated that the student also "struggle[d] to compute foundational math facts, including addition, subtraction, and multiplication" (id.).  According to the report, the student was able to "perform[] well on higher-level mathematic tasks," but "it [was] at the cost of significant mental energy" because of his "slow and laborious math computations" (id.).  The report indicated that the student's "psychiatric conditions, as well as his attentional and learning disorders, create[d] severe impairments in his academic domain" (id. at p. 32).

The November 2023 psychological evaluation report indicated that the student's substance use served "as a form of self-medication and emotional numbing" (Parent Ex. E at p. 29).  According to the report, the student's substance use "exacerbated much of [his] underlying depressive and inattentive symptomology and executive dysfunction, as well as his escapist tendencies, including engaging in risky behaviors" (id.).  The report included that "[a]s a consequence of his prolonged usage, [the student] continue[d] to experience some altered sensory perceptions . . . that cause[d] some interference and discomfort" (id.).  Further, the report indicated that "the severity of [the student's] use" made it "essential that his immediate environment (including those with whom he interact[ed]) continually be monitored, along with his continued sobriety" (id.).

According to the November 2023 psychological evaluation report, the student required "close psychiatric care and continue[d]" placement "in residential care" (Parent Ex. E at p. 29).  The report indicated that "[c]onsistent, ongoing treatment, including both psychotherapy and medication, [was] essential to help [the student] gain control over his life and behavior" (id.).  The report indicated that the student's "depression, substance use, and developmental disorders" resulted in the "constrict[ion]" of "several of [his] capacities" (id. at p. 30).  Further, the report indicated that "[i]t [was] critical that [the student] continue his schooling in a residential, therapeutic school setting where he c[ould] receive the 24/7 care and support he require[d] to access and benefit from his education" (id.).

The November 2023 psychological evaluation report indicated that the student's "psychiatric and developmental symptoms c[ould not] be separated or disambiguated from his academic performance" (Parent Ex. E at p. 31).  The report further indicated that "[i]n fact, due to [the student's] psychological needs, he ha[d] not been able to participate in an educational program for some time," and that "residential therapeutic schooling [was] essential to meet his educational needs while addressing his social, emotional, and behavioral issues" (id.).  According to the report, it was "essential" to "[m]anag[e] these diagnoses, as well as his stress in terms of managing attentional and depressive symptoms" (id.).

The November 2023 psychological evaluation report included that the student required "read[y] access" to "therapeutic help" on a "24/7 . . . 12-month basis, and not just during school hours" (Parent Ex. E at p. 31).  According to the report, the student's "emotional and behavioral patterns continue[d] to pose a clear danger to himself," and that "the structure and oversight of a standard school system [was] insufficient to ensure his safety" (id.).  The report indicated that the student was unable to "access core subject matter without first addressing his therapeutic needs within a structured residential therapeutic school setting" (id.).  The report included several educational and therapeutic recommendations for the student's programming (id. at pp. 32-36).

2. Services from In Balance

The parent testified in her affidavit that, when the student "was ready for discharge from Turnbridge" for the second time in November 2023, she was "advised" that the student's "disabilities still necessitated that he be place[d] in a residential therapeutic program to continue with both his therapy and his academics" (Parent Ex. Y ¶¶ 35, 38).  The parent testified at the hearing that, during the student's second enrollment at Turnbridge, she searched for a placement that offered "a serious school with a serious therapeutic support system where [the student] could be kept safe" (Tr. p. 71).  The parent testified in her affidavit that she enrolled the student at In Balance as a result of discussions "with an educational consultant" (Parent Ex. Y ¶¶ 39, 40).  The student attended In Balance between November 14, 2023 and July 23, 2024 (Tr. pp. 75-76; Parent Exs. T; R at p. 1; Y ¶¶ 40, 47).

During the hearing, the parent testified that many individuals who attend In Balance "ha[d] ADHD or other learning disabilities," or "struggl[ed] with depression, anxiety, [and] substance use disorder" (Tr. p. 72).  The parent testified that, because the individuals who attend In Balance "ha[d] ADHD, . . . learning [wa]s scaffolded and supported in the schoolhouse" (Tr. p. 76).  According to the parent, the program offered a "serious[]" school, as well as "individual therapy, group therapy," academic instruction, and "equine therapy" (Tr. pp. 72, 76).  The parent further testified that In Balance was a "thoughtful and organized program to help young men in these kinds of very acute situations" (Tr. p. 76).

The hearing record included an "[o]verview" of In Balance (Parent Ex. Q at pp. 4-6).  The overview document included that there were "three branches of the ranch[:] school, milieu, and therapeutic," and that each component "work[ed] . . . together" such that they "create[d] a comprehensive program that addresse[d] the whole student" (id. at p. 5).  The overview document indicated that there was an "academic branch of In Balance Ranch Academy, which is a therapeutic boy's boarding school that houses 45-55 students" (id. at p. 4).  According to the overview document, "In Balance Ranch serve[d] young men, ages 13-17, who [were] suffering from substance abuse and other co-occurring disorders" (id.).  The overview document indicated that the program employed "seven full-time staff members" including an "English teacher, Science teacher, Social Science teacher, Math/P.E., Administrative Assistant, and Academic Director" (id.).  The overview document also indicated that "[o]ther instructors [were] shared with the larger program" such as "the life coaches who accompany the boys to school" (id.).  According to the overview document, the program also employed "a full-time health aid, milieu managers, [and] [six] therapists" (id.).

According to the overview document, the mission was "to prepare young men for success in college and careers by supporting and inspiring their academic and personal growth" (Parent Ex. Q at p. 4).  Further, the overview document indicated that "faculty" "implement[ed] comprehensive, individualized academic plans designed to challenge each student to strive for excellence" (id.).  According to a document provided by the Academic Office Coordinator, the school operated "year[-]round," was "in session 248 days a year," had no "school vacations," and "d[id] not have a traditional 'academic year'" (Parent Ex. T).

The overview document indicated that an "academic program" would be "tailored to meet the individual needs of [its] students" including "a personalized educational plan" and "a blend of teacher-directed classes and specially designed self-paced courses" that "us[ed] a tutoring model" (Parent Ex. Q at p. 4).  The overview document indicated that "students [were] taught from where they [were] and [were] not expected to fit into a standard mold defined by their age or grade level" (id.).  According to the overview document, the following "interventions [were] embedded in [their] model": assistance with executive functioning, extended time on tests and quizzes, chunked assignments, checks for understanding, individual help to understand directions, opportunities for individual tutoring during class periods, support in learning how to work independently, behavioral coaching and check-ins, and noise-cancelling headphones (id.).

The academic director indicated in her affidavit that teachers at the school met twice weekly with each other as well as therapists "to discuss students and their progress" (Parent Ex. EE ¶¶ 1, 8).[7]  In her affidavit, the academic director indicated there were "[four] full-time teachers," that "classes [were] self-paced," and that "individual schedule[s]" were established by "the student's advisor" (id. ¶ 9).  The academic director testified that the school offered makeup credits as needed (Tr. pp. 146, 147).[8]

The overview document included that "[s]tudents' progress in the therapeutic program [was] tied to their progress in school" and "that academic achievement [was] a measure of effort, work ethic, maturity, and integrity, and thus they [were] evaluated as individuals – and not by their GPAs" (Parent Ex. Q at p. 5).  The overview document also indicated that to the extent possible, a student's IEP or Section 504 plan would be followed, but that if "adequate resources" were not "available," the program would "decline . . . to provide accommodations and/or modifications" (id. at p. 6).

To address the students' social/emotional needs, the overview document indicated that "students engage[d] in therapeutic groups, individual therapy, family therapy, equine therapy, and participate[d] in 12-Step groups" and the offered therapeutic services included "[w]eekly individual and family therapy sessions," "[w]eekly [t]herapist [f]acilitated [s]pecialty [g]roups," "[f]amily [w]eekend [w]orkshops," "[r]etreats," and "[o]ther [s]upport" such as community service, and on- and off-campus AA meetings (Parent Ex. Q at pp. 4, 5-6).

One of In Balance's primary therapists (therapist) provided an affidavit in which he reviewed the In Balance program, including some of the same information from the overview document (compare Parent Ex. CC ¶¶ 2, 8, 9, 11-15, 17-21, 23-30, with Parent Ex. Q).[9]  The therapist also included in his affidavit that "[t]herapists at In Balance Academy ha[d] a master's degree in counseling, social work[,] or a related field" (Parent Ex. CC ¶ 10).  The therapist testified that the program was "staffed 24/7 to monitor students['] physical and emotional safety" (id. ¶ 16).  Additionally, the therapist testified, that when students first began at In Balance, they were provided a week-long orientation during which a student "shadow[ed] a peer or staff . . . to get settled into the program" (id. ¶ 22).  The therapist testified that at In Balance the program offered "a structured buildup of more freedom" and that the students who "d[id] well in the program . . . g[ot] to have more freedoms to go off campus and experience more things" (Tr. pp. 106-07).

Turning to the student's needs at the time of his enrollment at In Balance, according to the student's "assigned therapist" who "worked with [the student] for [seven] months," when the student arrived at In Balance, he had "some pretty significant depression issues," "struggle[d] with just connecting" and having a relationship with family, "to maintain and keep relationships with positive peers," "ADHD," and "substance use" that "was his way of self-medicating for his depression issues," along with "the shame and also trauma he had experienced" (Tr. pp. 100-01; Parent Ex. CC ¶¶ 31, 32).  The therapist included that the student "struggled with severe depression" and "feeling[s] of hopelessness, suicidal thoughts, low energy, low appetite[,] and struggles with sleep" (id. ¶ 35).  The therapist also testified that the student exhibited "oppositional behaviors and engaged in unhealthy peer dynamics" in that he "encourage[d] his peers to engage in unhealthy behaviors and liked to be the ring leader on campus to escalate his peers['] oppositional and unhealthy behaviors" (id.).  Additionally, the therapist testified that the student "needed a therapeutic setting due to his skill deficits in managing his depression, ADHD[,] and self-destructive behaviors" (id. ¶ 40).  The therapist stated that during observations of the student in various settings, the student had difficulty with "focus, engage[ment][,] and use [of] his skills and tools without redirection or prompt[s] from staff and students" (id. ¶ 41).

Regarding the student's specific program at In Balance, the parent testified in her affidavit that the student "received individual and group therapy, as well as equine therapy," and that the parent "had weekly calls with" the student's therapist which the student "often joined" (Parent Ex. Y ¶ 45).  The parent reiterated this during the hearing, and testified that during family therapy, they discussed the student's progress with his therapist (Tr. pp. 76-77).  In addition, the parent testified that they "participated in group workshops and therapeutic interventions" for "family weekends" at In Balance and that the student's teachers provided "academic updates" about "every couple of weeks" (Tr. pp. 76-77; Parent Ex. Y ¶ 45).  The parent testified that two of the family's visits to In Balance "were family intensives" that involved "a three-day intensive sort of family therapy, group therapy environment where [they] worked on some really difficult things but all of it around how to kind of help [the student] process [a tragic event] and how he could move forward and be better, do well, heal and so forth as well as . . . working on the family foundation" (Tr. p. 77).

The student's therapist testified that, during the student's stay at In Balance, he met with the student "for an individual session every week [and] a family session every week," and that the student also had "two group sessions a week with a therapist" (Tr. p. 100).  The therapist testified that during his weekly sessions with the student "one session [was] dedicated to his depression, . . . trauma issues, [and] shame issues" and "one session [was] just dedicated to . . . find[ing] success" in school (Tr. pp. 128-29).  The therapist also testified that the student "had four to five peer facilitated groups every evening," "experiential groups and . . . family weekends intensive" (Tr. p. 100).

In his affidavit, the therapist testified that "[t]he therapeutic approach" with the student "was to meet [the student] where he [was] and process his trauma and grief and loss struggles that contributed to his depression and oppositional behaviors" (Parent Ex. CC ¶ 36).  The therapist described the student's equine therapy and its "therapeutic goals" such as "assertiveness," self-calming skills, and "skills to reset and regulate [the student's] behavior and his mood so that he c[ould] ride appropriately" (Tr. pp. 127-28).  The therapist also testified that the student's "equine sessions . . .  were related to his resiliency" (Tr. p. 128).

Turning to the academic program, the academic director testified that they "review[ed] [students'] transcripts upon entry" to "determine what classes [students] need to fulfill their graduation requirements according to [their] accreditation" (Tr. p. 153; see also Parent Ex. V).  The academic director testified that the teachers at the school were "not certified in special education" and that "[t]he school ha[d] accommodations built in to support [their] students since [it was] a therapeutic school" including "one-on-one help" and "supports with executive functioning skills" (Tr. pp. 155-56, 157).  The academic director further testified that academic classes were "self-paced" which meant that students went "at their own pace" with guidance from an academic advisor and received "one-on-one help with the teacher in a small environment" (Tr. p. 150).

As for the student's academic needs at the time of his placement at In Balance, the therapist testified in his affidavit that the student "struggled with ADHD . . . that presented [as] lack of focus, being easily distracted, and struggling to get started with assignments" (Parent Ex. CC ¶ 34).  The academic director testified that the student "had trouble completing his work" and that he exhibited difficulty with "focusing, following through, executive functioning skills, [and] ADHD" (Tr. pp. 147-48).

Regarding the student's academic programming, the parent testified that the student "attended school five days per week" and the therapist testified that the student "had four periods of school each day" with therapy sessions that occurred within that program (Tr. p. 100; Parent Ex. Y ¶ 45). The academic director testified during the hearing that students enrolled in the program took "three classes at a time" (Tr. p. 149).  The student's schedule reflected that he took the following classes: Business Math (tutoring included), PE, Equine, Government, English, and Music or Art, with therapeutic group built into the schedule (Parent Ex. U at pp. 1-2).

According to the student's transcript dated November 2024, he earned 0.5 credits in American Government with a C; 0.5 credits in elective enrichment with a C-; 0.5 credits in physical education with an A; and 0.5 credits in English with a B+ (Parent Ex. DD at p. 1).[10^], [11]  According to the student's grades on assignments, he obtained scores of 80 and above in English 12; scores of 81 and above in American Government; and scores of 80 and above in Business Math, except for one pre-test score of 30 (id. at pp. 2-6).  The grade information also indicated that the student obtained a grade of 83 in Fitness Foundations, 83 in Music, and 49 in Art (id. at p. 6).

During the hearing, the academic director testified that the student's receipt of a half credit for American Government was normal, in that it was "a semester" class, and that "each semester [was] a half a credit" (Tr. pp. 151, 152).  The academic director also testified that the student only "completed 43 [percent] of the Business Math course, and did not receive any credit for that course" as "[h]e was sent to a higher level of care" (Tr. pp. 147-48, 152-53; Parent Ex. EE ¶ 13; see Parent Ex. DD at pp. 1, 6).  The academic director testified via affidavit that the student's "inability to complete the Business Math course may reflect his underlying struggles with persistence, focus, or confidence in challenging subjects" (Parent Ex. EE ¶ 15).

The therapist testified that the strategies used to address the student's academics, included chunking assignments to increase his motivation, adding two- to four- minute breaks "between periods," and preferentially grouping peers with a focus on students he "respected and liked more" (Tr. pp. 134-35).  The accommodations provided at In Balance were similar to those included in the December 2023 IEP (see Dist. Ex. 1 at p. 4).  The parent offered that the program provided support that addressed the student's learning disabilities in that they offered him breaks, "chunk[ed] assignments," and opportunities to find enjoyment in learning (Tr. p. 79).  In addition, the parent testified during the hearing that the student's teachers provided "academic updates" to the parent "every couple of weeks" (Tr. pp. 76-77).

The IHO found that the student's placement at In Balance was not "reasonably calculated to enable him to receive educational benefits" because "it became apparent" that the student required a higher level of care than In Balance could provide (IHO Decision at p. 12).  However, the standard parents must meet is whether the unilateral placement provides instruction specially designed to meet the unique needs of a student (Gagliardo, 489 F.3d at 112).  Although the student's progress at the unilateral placement is a relevant inquiry (id. 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]), it is well settled that a finding of 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).  As described above, the evidence in the hearing record shows that In Balance provided the student with therapeutic and academic programming to address his social/emotional and executive functioning needs.  While the student exhibited some success while at In Balance, the evidence in the hearing record shows that his progress was inconsistent, which may have contributed to the IHO's finding that In Balance was not appropriate.

The therapist testified that the student was initially "happy" to be at In Balance with a "lower level of care" than his previous placement, but "after about two months, he kind of realized he actually still had to work and do things and things were going to be" difficult (Tr. pp. 104-05).  According to the therapist's testimony, the student received tragic news about two weeks after he arrived at In Balance and the student's "depression and lack of motivation" made it difficult for the student "to make any significant progress in academics," although the student gained tools, insight, and skills "to better manage his ADHD and depression" (Parent Ex. CC ¶¶ 42, 43; see Tr. pp. 101-04).

According to the therapist, when the student did "well in the program," he "engag[ed] in exercise, d[ove] into his therapy work, show[ed] up in family sessions, [and] tr[ied] hard in school," but he "struggle[d] to be consistent with that" (Tr. p. 101).  The therapist testified that the student demonstrated "pretty good effort and progress" for "three months" prior to April, when "he basically stopped working" (Tr. pp. 124-25).  The therapist testified that, to address the student's lack of interest in academics, they "ma[de]" assignments "smaller," "adjust[ed] his curriculum," and "provide[d] extra tutoring," including the therapist's participation as "a therapist/tutor . . . to help him in school and build up ways to move forward there" (Tr. p. 125).  According to the therapist, "there was, you know, significant effort on [their] end to try to . . . build momentum again" but that the student "was not open to that" (Tr. pp. 125-26).

The therapist testified that "no matter how many different things [they] put in place" including "peer support, staff supports, therapy supports, [and] teacher supports," the student "just quit and shut down" (Tr. p. 105).  According to the therapist, the student's "pattern" was to think "if [he] tr[ied] and fail[ed], then [he was] a failure, but if [he] just [did not] try, then [he] [did not] fail" (id.).  The therapist testified that the student's depression significantly impacted his ability to participate in academics and that his "lingering depression . . . made motivation hard for him" (Tr. pp. 108-09).

The therapist testified that, to give the student the best possible chance to finish school, the program "recommend[ed] a high level of care" when the student left In Balance (Tr. pp. 113-14).  According to the therapist, "after seven months," he and the "family decided that because [the student] was turning 18 soon, [it would] be better to have [him] go to a high level of care and try to give him a smaller container or a smaller group of guys" with "more intensive therapeutic support to help him move through his depression issues" (Tr. pp. 101-02).  The therapist testified that he began discussing this option with the family "around four months into [the student's] stay" and that "around . . . six to seven months [was] when [they] kind of made a decision to go ahead and" move the student because he was about to "turn 18" (Tr. p. 102).

The therapist testified that it became "very clear" that, due to the student's, "ADHD and depression" along with "the combination of him turning 18 soon, [they] saw that the closer he got to turn[ing] 18, the less he was trying" (Tr. pp. 113, 129).  The therapist testified that he spoke with the family and discussed that the student was going to give up, then, "when he turn[ed] 18, he [was] going to sign himself out of treatment and leave" (id.).  According to the therapist, the student's "line of thinking" was that when he turned 18 he could "just leave and not do" schoolwork, and that "obviously [the student] was not thinking clearly and not in the right mind" as that was "not a healthy plan" (Tr. p. 136).  Given the discussions with "the clinical team, [the student's] parents and . . . educational consultants," the parents decided to transfer the student to a wilderness program (Tr. pp. 113-14).

The parent testified that, at the point of the student's admission to In Balance, the student's "therapeutic team decided" that "it was important for [the student] to go to a base level[]" which meant that he "stop[ped] taking his ADHD medication which had helped him focus in school" (Tr. p. 161).  The parent testified that he was "unmedicated there and really struggling and working really hard to get well at a very difficult time in his life" and that "academic progress was slow" but "hard won" (id.).  The parent testified in her affidavit that the student "progressed through his academics and therapy at a slow, but consistent pace" (Parent Ex. Y ¶ 45).

The parent further testified that the student's program allowed him to "continue through high school working on his academics, but also very importantly it gave him the sort of therapeutic support that he needed to move through a very severe depression," and support related "to his severe ADHD" (Tr. p. 161).  The parent testified that the student was hospitalized at some point for self-harm while he was at In Balance, although she was unable to remember specifically when it occurred (Tr. pp. 91, 92).  The therapist testified that the student "had probably three to four incidents of self-harm during the seven months" at In Balance, and that "at first," the self-harm began after learning tragic news (Tr. p. 129).  The therapist testified that the student was hospitalized at the time of the third incident because "the interventions [they were] doing" at the program were not "working, and if he continue[d] to self-harm," the student would not be able to stay "on [their] campus" (Tr. p. 131).

The academic director included in her affidavit that the student "received educational benefits from the one[-]on[-]one support and instruction, small class sizes, executive function skills development[,] and therapeutic support" (Parent Ex. EE ¶ 14).  During the hearing, the academic director testified that the student "made academic progress" in that he "complet[ed] assignments," revis[ed]" them, "and work[ed] towards mastery on the assigned coursework" (Tr. p. 151).

The therapist testified that the student "definitely gained more tools and skills of how to manage his ADHD" and "his depression" (Tr. p. 121).  The student's In Balance therapist made it clear that the student's limited motivation was a manifestation of his depression, and this was also mentioned during the testimony of the student's Turnbridge providers (see Tr. pp. 27, 38-39).  The therapist also testified that he "believe[d] [the student's] academic skills, his ability to manage his ADHD and manage depression definitely improved" (Tr. pp. 119-20).  The therapist testified via affidavit that "In Balance was . . . appropriate" for the student and "allowed [the student] to make meaning[ful] gains in his social and emotional skills related to education" (Parent Ex. CC ¶ 45).

The parent testified that, as a result of the student's attendance at In Balance, he was "still alive," "finished . . . school," and "learned a lot of things therapeutically" and "academically" (Tr. p. 80).  After leaving In Balance, the student attended a wilderness program, then entered a "sober living program," and was "about to . . . finish high school" with "about four senior grade level credits left to earn" (Tr. pp. 160, 162, 164).

In considering whether the parent met her burden to prove the appropriateness of In Balance, I note again that no one factor, including progress, is necessarily dispositive in determining whether a parent's unilateral placement is reasonably calculated to enable the child to receive educational benefits; rather it is the totality of the circumstances that must be considered (see Frank G., 459 F.3d at 364 [holding that although a student's "[g]rades, test scores, and regular advancement [at a private placement] may constitute evidence that a child is receiving educational benefit, . . . 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"]).  Further, it is well settled that parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of the student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, at *9 [S.D.N.Y. Mar. 18, 2010]).  "The test for the private placement 'is that it is appropriate, and not that it is perfect'" (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 [2d Cir. 2016] [citations omitted]).

Here, the hearing record shows that the parent attempted to replicate a program for the student similar to the one recommended in the November 2023 psychological evaluation report.  The evidence shows various accommodations were provided to the student to address his academic needs, and that In Balance attempted to address the student's waning interest in program participation.  In Balance provided the student with individual, group, and family therapy.  While the hearing record shows that the student had some difficulty engaging in the programming offered toward the end of his attendance at In Balance, it also shows that he made at least some progress, both academically and therapeutically.  He received academic support such that he was able to earn at least some high school credit, similar to the credit he earned during his previous placement, and he achieved well above passing grades on his assignments.  In light of the totality of circumstances and based on the information in the hearing record, the IHO's finding that In Balance was not appropriate must be reversed.

B. Equitable Considerations

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

1. Turnbridge

In its cross-appeal, the district asserts that the IHO's award of the tuition reimbursement for the student's attendance at Turnbridge should be annulled given deficiencies in the parent's notice to the district of her intent to unilaterally place the student at Turnbridge.

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).  This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]).  Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

Here, the hearing record includes the parent's letter to the district dated September 19, 2023, where the parent requested that the CSE evaluate the student for special education services (Parent Ex. B).  The parent alleged that the district was aware of and failed to address the student's "rapidly declining grades and attendance, along with overall deterioration of academic and social-emotional functioning" (id. at p. 2).  The parent further advised of her unilateral placement of the student at Turnbridge and expressly noted that she reserved the right to seek reimbursement from the district for the costs of the student's tuition at Turnbridge (id. at pp. 2-3).  The hearing record indicates that the student attended Turnbridge April 28, 2023 through August 25, 2023 and September 4, 2023 through November 13, 2023 (Parent Exs. M; N).  Contrary to the district's assertion, there is evidence included in the hearing record that the parent provided notice of her intention to seek public funding for the student's unilateral placement at Turnbridge prior to the filing of the due process complaint notice, although the parent did not provide the district with at least ten-days' notice prior to the unilateral placement beginning April 28, 2023 (Parent Ex. B; see Answer ¶ 12).  Despite this, given that the IHO found that the district violated its child find obligation to the student for the 2022-23 school year—a finding that is not appealed—and there is no indication that the district provided the parent with a procedural safeguards notice prior to the parent's unilateral placement of the student at Turnbridge in April 2023, I decline to reduce the tuition award on this ground (20 U.S.C. § 1412[a][10][C][iv][I]; see 34 CFR 300.148[e][1]).

2. In Balance

Having found that the IHO erred in finding that the parent did not meet her burden to prove the appropriateness of the student's unilateral placement at In Balance, the next inquiry is whether equitable considerations support an award of tuition reimbursement for the student's tuition.  The IHO did not weigh the equities related to this time period and the district has not raised—nor does a review of the hearing record present—any equitable considerations that would warrant a reduction or denial of relief in the form of tuition reimbursement for the costs of the student's attendance at In Balance for a portion of the 2023-24 school year.  Accordingly, the district will be directed to reimburse the parent for the costs of the student's tuition at In Balance.

C. Reimbursement of Transportation Expenses

As a final matter, in her due process complaint notice, the parent sought compensation from the district for "the cost of transportation and related expenses for the student and his parents to and from . . . In Balance . . . during the 2023-24 school year[]" (Parent Ex A at p. 7).  The IHO did not address the issue of transportation expenses for In Balance because she found that In Balance was not an appropriate placement.  Having found that In Balance was an appropriate placement for the student for the 2023-24 school year, an inquiry into whether the parent should be reimbursed for transportation expenses related to the student's unilateral placement at In Balance must be conducted.

State regulations authorize expenditures related to suitable transportation of the student "from the student's home to the school at the commencement of the school year, from the school to the student's home at the conclusion of the school year, and no more than three additional trips to and from school for students enrolled in a 10-month program, or four additional trips to and from school for students enrolled in receiving a 12-month special service and/or program, except as additional trips may need to be provided for the periods during which residential care is not provided to the students attending such school" (8 NYCRR 200.12[a]).  The Office of Special Education Programs (OSEP) of the United States Department of Education has also opined that the reimbursement of a child's parents for other transportation expenditures not involving transporting the child to and from school, such as to attend conferences at the school, must be determined on a case-by-case basis (Letter to Anonymous, 213 IDELR 164 [OSEP 1988]; see also Letter to Dorman, 211 IDELR 70 [OSEP 1978]).  OSEP guidance indicates that parental trips to and from school which contribute to the achievement of the student's IEP annual goals are included within the federal definition of the term "related services" to be provided at no cost to the parents as part of the student's FAPE (Letter to Anonymous, 213 IDELR 164 [OSEP 1988]; see also Luke P. v. Thompson R2-J Sch., 46 IDELR 70 [N.D. Ill. Nov. 25, 2003] [expenses must relate to genuine educational concerns in order to justify reimbursement]; Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 [9th Cir. 1994] ["the language and the spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses . . . as related services"]).

Having determined that the parent is entitled to reimbursement for tuition at In Balance, it follows that the parent should also be able to recoup expenses for transporting the student to and from In Balance and for visits necessary for the student's program.  In this matter, with respect to the parent's claims to be reimbursed for travel to and from In Balance, the hearing record includes a list of related travel expenses with proof of payment from November 10, 2023 through May 22, 2024 (Parent Ex. S).  The parent testified that the first family visit was in December 2023 and the next two trips were to participate in intensive group therapy with the student at In Balance (Tr. pp. 77-78).  Accordingly, the parent should be reimbursed by the district for transportation expenses related to the student's program at In Balance.

VII. Conclusion

The evidence in the hearing record demonstrates that contrary to the IHO's finding, In Balance was an appropriate placement for the student for the 2023-24 school year.  Further, equitable considerations support the parent's requested relief in the form of tuition reimbursement for the student's attendance at Turnbridge and In Balance for the 2022-23 and 2023-24 school years.  The IHO's award of tuition reimbursement for the student's attendance at Turnbridge will not be disturbed.  In addition, however, the district must also reimburse the parent for the student's tuition at In Balance, as well as transportation expenses related to the student's program at In Balance.

I have considered the parties' remaining contentions and find them unnecessary to address given my decision above.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO decision dated February 12, 2025 is modified by reversing the portion that found that In Balance was not an appropriate placement for the student for the 2023-24 school year;

IT IS FURTHER ORDERED that the district shall reimburse the parents for the cost of tuition paid to In Balance for the 2023-24 school year;

IT IS FURTHER ORDERED that the district shall reimburse the parent for all travel expenses related to the student's program at In Balance for the 2023-24 school year.