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.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's private services delivered by Silver Rungs for the 2022-23 and 2023-24 school years. The district cross-appeals from that part of the IHO's decision which declined to reach the issue of equitable considerations.  The appeal must be sustained in part.  The cross-appeal must be dismissed, and the matter must be remanded to the IHO for further proceedings.

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

For the 2022-23 and 2023-24 school years, the student was parentally placed in a religious nonpublic school and enrolled in 10th and 11th grade, respectively (Parent Exs. J at p. 1; K at p.1).  The hearing record indicates that the district last convened a CSE on April 14, 2018, and found the student eligible for special education and related services as a student with a speech or language impairment; the April 2018 CSE developed an IESP for the student with an implementation date of May 1, 2018 (Parent Ex. B at pp. 1, 10).[1]  The April 2018 CSE recommended that the student receive three periods per week of group special education teacher support services (SETSS) in Yiddish; two 30-minute sessions per week of individual speech-language therapy in Yiddish, and one 30-minute session per week of individual counseling services in Yiddish (Parent Ex. B at pp. 1, 10).[2]

Although the hearing record reflects that a CSE last convened for the student on April 14, 2018, the hearing record does not include any evidence regarding what transpired for the student's education between April 2018 and the 2022-23 school year (Tr. pp. 1-15; Parent Exs. A-M; IHO Exs. I-II).

The student's father provided an affidavit, wherein he averred that on or about May 12, 2022, he requested equitable services from the district, but he did not keep a copy of the notice for his own records (Parent Ex. L).

Regarding services delivered during the 2022-23 school year, the hearing record includes an authorization dated August 26, 2022, for three hours per week of SETSS in a group of no more than eight students to be delivered in Yiddish for the period of September 1, 2022 through June 30, 2023 (Parent Ex. F).

The hearing record also includes an undated "Agreement For Services" between the parent and Silver Rungs, which indicated it was "[e]ffective" as of September 1, 2022, for the provision of three 60-minute sessions per week of unspecified services to the student for the 2022-23 school year at a rate of $175 per hour, as well as an undated "Agreement For Services" with Silver Rungs, which indicated it was "[e]ffective" as of September 1, 2023, for the provision of three 60-minute sessions per week of unspecified services to the student for the 2023-24 school year at a rate of $185 per hour (Parent Exs. C; G).[3]  The hearing record also includes statement purporting to be affidavits from the student's SETSS provider averring that the student received three hours of SETSS per week for the 2022-23 and 2023-24 school years; a December 30, 2022 progress report, and a June 3, 2024 progress report (Parent Exs. D-E; J at pp. 1-2; K at pp. 1-2).

A. Due Process Complaint Notice

In an amended due process complaint notice, dated July 30, 2024, the parents alleged that the last program developed by the district that the parents agreed with was the program set forth in the April 2018 IESP (Parent Ex. A at p. 1).[4]  The parent further asserted that the district failed to provide the student with a free appropriate public education (FAPE) and appropriate services "by failing to provide a special education provider" (id.).  According to the parents, they were unable to find a provider willing to accept the district's standard rates but found a provider willing to provide the student with all required services for the 2022-23 and 2023-24 school years at a rate higher than the standard district rate (id.).  The parent requested a pendency hearing and an impartial hearing, and an "[a]llowance of funding for payment to the student's special education teacher services provider/agency for the provision of [three] sessions per week of SETSS at an enhanced rate for the entire 2022-2023 and 2023-2024 school year[s]" (id. at p. 2).  In addition, the parent requested an award of "all related services on the IESP and related services authorizations for such services if required by the parent" (id.).

In a due process response dated October 7, 2024, the district asserted defenses and indicated that an April 2018 CSE developed an IESP for the student who had been parentally placed (Parent Ex. H at pp. 1-5).

B. Impartial Hearing and Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on November 12, 2024 (Tr. pp. 1-15).  At the impartial hearing, the IHO admitted multiple exhibits offered by the parents including two affidavits from the student's SETSS provider (Tr. pp. 5-6; Parent Exs, D; E).

At the outset, the district conceded that it failed to offer the student a FAPE for the 2022-23 and 2023-24 school years (Tr. p. 6).  The parents' advocate stated that the student's SETSS provider would appear for cross-examination by the district's representative (Tr. pp. 6-7).  The transcript reflects that the IHO next asked the advocate to state the parents' requested relief prior to "call[ing] the provider" (Tr. p. 7).  Following the advocate stating the parent's requested relief, the IHO replied, "[o]kay. Please call the witness.  The witness has five minutes to appear.  Okay, the witness has two more minutes" (id.).  The parents' advocate responded, "So, she should be on in the next few minutes" (id.).  The IHO then stated, "[s]he has one more minute to be on.  Okay, is [sic] there any other witnesses you wanted to cross-examine, District?" (Tr. pp. 7-8).  The parents' advocate questioned "IHO?" and the IHO responded, "the witness had five minutes" (Tr. p. 8).  The parents' advocate stated that he did not believe five minutes had elapsed, the IHO stated, "[t]hat was five minutes" (id.).  The IHO then asked the parties' representatives if they wanted to present arguments related to equitable considerations (id.).  Both representatives indicated that they would address equitable considerations in their closing arguments, at which time, the IHO instructed them to begin their closing arguments (id.).  Both representatives indicated that their closing arguments would have addressed the responses to cross-examination and that there was no cross-examination (Tr. pp. 8-9).[5]  The IHO then stated, "[s]o, we should be able to go straight into the closing" (Tr. p. 9).  At this time, the parents' witness appeared by telephone (id.).

The IHO stated that the witness had been given five minutes to appear and advised the witness that she was late and that the parties were "in the closing section of this hearing. So, at this time, your testimony will not be accepted" (Tr. p. 9).  The witness expressed confusion, and the IHO told her that she had appeared "almost 10 minutes after [she] was called" (id.).  The witness then stated that she appeared after receiving "a phone call less than two minutes ago" (Tr. pp. 9-10).  The IHO determined that the witness "appeared untimely" and asked her to disconnect from the impartial hearing (Tr. p. 10).  The district representative then continued with his closing argument (Tr. pp. 10-12).  Following the district's closing argument, the parents' advocate asked the IHO if the SETSS provider's affidavit of written testimony had been excluded since the witness was not permitted to appear for cross-examination (Tr. p. 12).  The IHO responded that "the affidavit of the witness who was supposed to be here [was excluded]" and that she "did give you five minutes to send the links to the parent from there," and that the witness did not appear until "nine-and-a-half-minutes after we started. So yes, their testimony is excluded. So, you can continue with your closing statement" (Tr. p. 12).  The parents' advocate proceeded with his closing statement and IHO concluded the impartial hearing (Tr. pp. 12-15).

In a decision dated February 12, 2025, the IHO initially determined that the district failed to implement the student's IESP and that the parents' unilaterally obtained services were inappropriate (IHO Decision at p. 2).[6]  The IHO found that the district acknowledged that it failed to implement the services set forth in the April 2018 IESP during the 2022-23 and 2023-24 school years and consequently failed to provide the student a FAPE in each of those school years (IHO Decision at p. 3).

Next, the IHO concluded that the parents failed to meet their burden of proving that the unilaterally obtained SETSS provided to the student during the 2022-23 and 2023-24 school years were appropriate (IHO Decision at pp. 4-6).  The IHO held that other than the progress reports submitted by Silver Rungs, "the hearing record lack[ed] any independent information as to the [s]tudent's current strengths and weaknesses, goals, and [s]tudent's needs" (id. at p. 5).  Further, the IHO found that while the progress reports purported to identify the student's present levels of functioning, needs, and progress, she did not find the evidence to be credible (id.).  The IHO concluded the provider's affidavits and progress reports were self-serving, vague, and evasive (id.).[7]  Finally, the IHO concluded that the progress reports were created by an entity that clearly had a financial interest in the proceeding (id. at p. 6).  Based on the foregoing, the IHO denied the parents' request for funding of the unilaterally obtained SETSS provided to the student during the 2022-23 and 2023-24 school years (id.).

IV. Appeal for State-Level Review

The parents appeal and argue that the IHO erred: in applying a Burlington/Carter analysis to their claims; in finding that the parents were required to show that the student required three periods per week of SETSS for the 2022-23 and 2023-24 school years; in finding that the parents' evidence was not credible and did not support finding that the unilaterally obtained SETSS was appropriate; and in not allowing the student's SETSS provider to testify and having only five minutes to appear.  The parents have included a copy of an email exchange between the parties and the IHO and request that it be considered as additional evidence.  As relief, the parents request funding for three periods per week of SETSS at the rates charged by Silver Rungs for the 2022-23 and 2023-24 school years.  In the alternative, the parents request remand to the IHO to permit the SETSS provider to testify.

In an answer and cross-appeal, the district asserts that the IHO correctly determined that the parents failed to demonstrate the appropriateness of their unilaterally obtained SETSS.  The district objects to the parents' proposed additional evidence.[8]  As and for a cross-appeal, the district argues that the parents failed to provide 10-day written notice of their intention to obtain unilateral SETSS for the 2022-23 and the 2023-24 school years and to seek public funding for the costs of the student's services.  As a result, the district argues that equitable considerations warrant a denial of the parents' requested relief.

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]).[9]  "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.).[10]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

A. Conduct of the Impartial Hearing

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimal process requirements that shall be afforded to both parties (8 NYCRR 200.5[j]).  Among other process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]).  Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]).  State regulation further provides that the IHO "shall exclude any evidence" that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and "may limit examination of a witness by either party whose testimony the impartial hearing officer determines to be irrelevant, immaterial or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c], [d]).  State regulation further provides that parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities, that an IHO may assist an unrepresented party by providing information relating only to the hearing process, and that nothing contained in the cited State regulation shall be construed to impair or limit the authority of an IHO to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (see 8 NYCRR 200.5[j][3][vii]).

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (id.).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

Also, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (see Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061).  Under sufficiently egregious circumstances, SROs have found that an IHO has properly dismissed a parent's due process complaint notice for his or her failure to comply with an IHO's reasonable directives by not attending an impartial hearing either in person or by an attorney or advocate (see, e.g. Application of a Student with a Disability, Appeal No. 18-111 [finding that it was within the IHO's discretion to schedule the impartial hearing at a district location when the parent did not submit a formal request for a different location and to dismiss the due process complaint notice without prejudice when the parent and her advocates did not appear]; Application of a Student with a Disability, Appeal No. 09-073 [finding that an IHO had a sufficient basis to dismiss a matter with prejudice after the district had rested its case, parent's counsel had been directed by the IHO to produce the parent for questioning by the district at a following hearing date, and neither the parent nor counsel for the parent appeared at the subsequent hearing date]).

Here, the hearing record includes a standing order that applied to the IHO's omnibus docket of 11 pending impartial hearings, which included this matter (IHO Ex. I at p. 1).  With regard to witnesses, the standing order required that the parties provide a witness list that included "the name and title of the witness and a brief, but informative, description of the nature of the witness's testimony," and noted that the IHO may exclude any irrelevant, immaterial, unreliable, or unduly repetitious testimony during the hearing (id.).  In addition, the standing order provided that disclosure of exhibits and witness lists must occur five business days before the scheduled hearing date, that a courtesy copy of the party's exhibits and witness lists must be provided to the IHO, no later than five business days before the scheduled hearing date (id.).  Further, the parties were required to use affidavit testimony for their intended witnesses and that any such witness must be available for cross-examination (id.).  The standing order further advised the parties that affidavits must be included in their five-day disclosure packet (id.).  Lastly, the IHO's standing order stated that, in the event either party anticipated a problem in gaining a witness's participation, the parties were directed to address it by communicating with each other or seeking a subpoena (id. at p. 2).

The standing order also stated that "[a] Party's failure to comply with rules concerning adjournments, or failure to appear, may cause the Hearing Officer to: a. Hold the hearing in the absence of the Party; b. Dismiss the case for failure to prosecute; c. Draw negative inferences; or d. Limit affirmative defenses" (IHO Ex. I at p. 1).  The imposition of a five-minute time limit within which to produce a witness was not a part of the standing order.  In addition, preclusion of the witness' testimony was not among the potential sanctions for noncompliance noted in the standing order (see IHO Ex. I at pp. 1-2).

 Under these circumstances, the five-minute time limit to produce the witness does not constitute a reasonable directive of the IHO, as there is nothing in the hearing record to support a finding that either party was made aware of the time limit prior to the commencement of the impartial hearing on November 12, 2024.  Having reviewed the hearing record in its entirety, the conduct of the parents' advocate cannot be construed as noncompliant (Tr. pp. 6-12).  To further compound the above, the IHO imposed the sanction of witness preclusion for the parents' advocate's failure to comply with a directive that had not been communicated to parties in advance of the impartial hearing.  Based on the above, the IHO's preclusion of the parent's witness was improper.

In the judicial context, a prerequisite for the sanction of witness preclusion is noncompliance with a Court order.  Even under those circumstances—where noncompliance has been established—when reviewing whether excluding testimony was an abuse of discretion, the Second Circuit considers "'(1) the party's explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance'" (Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006) (quoting Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)).  Although the Second Circuit's factors are not directly applicable to hearings in this administrative setting, consideration of these principals is instructive.  Here, the parties were not notified in advance of the impartial hearing that the IHO intended to set a time limit for witness appearances.  The parties were also not notified in advance of the impartial hearing of potential sanctions for noncompliance.

Additionally, the testimony of the SETSS provider could be  integral to the parents' presentation of their case, specifically as to meeting their burden of proof in a Burlington/Carter analysis of the appropriateness of their unilaterally obtained services.  As noted above, the parents submitted two affidavits from the provider whose testimony was precluded (Parent Exs. D; E).  The IHO noted in her decision that those affidavits "were fill in the blank documents," in one the year indicating when services were delivered appeared altered, and the testimony in the affidavit was vague, self-serving, and evasive (IHO Decision at pp. 5-6; Parent Exs. D; E).  Overall, the IHO's determination that the unilaterally obtained services appeared to rest on a finding that the parents' evidence was not credible (IHO Decision at pp. 5-6).

Under these circumstances, the IHO could have addressed her questions regarding the evidence to the parents' witness rather than precluding the witness from testifying. By precluding the witness and then determining that the parents' evidence lacked credibility, the IHO failed to balance the interests of having a complete hearing record and the parties' opportunity to prepare their respective cases and present evidence.

Accordingly, because the IHO precluded the parents' witness from testifying, without a clear directive as to the witness' appearance communicated to parties in advance of the impartial hearing, and with the IHO's decision and hearing record indicating that the witness' testimony could have been material to the parents' presentation of their case, in this instance, the parents should be given the opportunity to finish presenting their evidence.

B. Remand

Contrary to the parents' assertion, the IHO did not err in analyzing their claims using the Burlington/Carter legal standard.  The IHO applied the correct standard, however her determination was based on an incomplete hearing record as the parents were precluded from presenting the student's SETSS provider as a witness.

When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).

On remand, the IHO shall assess the appropriateness of the parents' unilaterally obtained services using the Burlington/Carter standard; however, the IHO is directed to permit the parents to present witnesses and consider their testimony along with the parents' other evidence.  Additionally, while the district may not revisit the FAPE determination on remand, the district is not precluded from challenging the appropriateness of the parents' unilaterally obtained services.  If the IHO finds the parents met their burden to demonstrate the appropriateness of the services delivered by Silver Rungs, the IHO shall consider whether equitable considerations support an award of reimbursement of direct funding for the costs of the services provided by Silver Rungs.  Upon remand, the district may raise arguments as to whether equitable considerations weigh against awarding the parents their requested relief.

VII. Conclusion

Having reached the decision to remand this matter, the IHO is directed to conduct an analysis of the evidence submitted by the parties during the impartial hearing using the Burlington/Carter standard to determine whether the unilaterally obtained services the parents secured from Silver Rungs were, under the totality of the circumstances, appropriate to address the student's needs and, if so, whether equitable considerations favor the parents, including any defenses raised by the district.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated February 12, 2025 is modified by vacating that portion which found the parents did not meet their burden to demonstrate the appropriateness of their unilaterally obtained SETSS delivered by Silver Rungs for the 2022-23 and 2023-24 school years; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO for further proceedings in accordance with the body of this decision; and

IT IS FURTHER ORDERED that in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed.