I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by providers of her choosing at specified rates for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which, in part, determined that the equitable considerations supported the parent's request for direct funding of the private services.  The appeal must be sustained in part.  The cross-appeal must be sustained in part.

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]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm]. 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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

A CPSE convened on November 9, 2022, found the student eligible for special education as a preschool student with a disability, and developed an IEP with a projected implementation date of November 22, 2022 (see Parent Ex. B).[1]  The CPSE recommended the student receive 10-month programming consisting of seven hours per week of group (2:1) special education itinerant teacher (SEIT) services, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual physical therapy (PT) to be provided at an early childhood program selected by the parent (id. at pp. 1, 16).[2]

The November 2022 IEP indicated the student presented with weaknesses in several areas of development (Parent Ex. B at p. 2).  Specifically, the IEP stated the student's overall cognitive skills were in the "[e]xtremely [l]ow range of intellectual functioning," he exhibited below average social/emotional development and adaptive skills; had weak language skills; was difficult to understand; could not respond appropriately to questions; had difficulty following directions; had weaknesses in gross and fine motor skills; and had not developed social interactive and play skills (id.).

The hearing record indicates that, for the 2023-24 school year, the student attended a nonpublic preschool (see Parent Exs. C at p. 1; F at p. 1).

The parent entered into a contract with Strivright on September 21, 2023, which provided that Strivright would deliver services to the student during the 2023-24 school year (Parent Ex. C).[3]  The contract listed two 30-minute sessions per week of speech-language therapy at the top of the contract as the services to be provided but also recited that the parent understood that Strivright intended to provide SEIT at a rate of $200 per hour "depending on the provider," as well as speech-language therapy, OT, PT and counseling at a rate of $250 "depending on the provider" (id. at p. 1).

The parent also entered into a contract on October 26, 2023, with an individual provider to deliver OT services to the student during the 2023-24 school year (Parent Ex. D).  The contract indicated that the parent understood that the individual provider intended to provide OT at a rate of $250 per hour but also stated that the individual provider would "make every effort to implement the recommended [two 30-minute sessions per week of 1:1 OT] with suitable qualified providers" (id. at p. 1).

On March 14, 2024, a CPSE convened, found the student remained eligible for  special education as a preschool student with a disability, and recommended the student receive the same services as the November 2022 CPSE, with the exception of PT, which the CPSE recommended be increased from two 30-minute sessions per week to two 60-minute sessions per week (compare Dist. Ex. 4 at pp. 1, 13, with Parent Ex. B at pp. 1, 16).[4]

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A).  The parent contended that the district failed to implement the November 2022 CPSE IEP for the 2023-24 school year and that she had been unable to locate providers for "the recommended program on [her] own accord" (id. at p. 2).  The parent sought a finding that the district denied the student a FAPE for the 2023-24 school year, an order that the district "fund the providers located by [the parent] for the 2023-24 school year at the provider's contracted for rate," and an order that the district fund a bank a compensatory education services for recommended services that were not provided to the student for the 2023-24 school year at "the prospective provider's contract rate" (id. at p. 3).[5]

In a response to the parent's due process complaint notice, dated August 8, 2024, the district generally denied the parent's allegations, asserted multiple affirmative defenses, and asserted its intent to pursue a motion to dismiss any and all claims based on the IHO's lack of subject matter jurisdiction and any and all claims that were not ripe (Dist. Response to Due Process Compl. at p. 1).

B. Impartial Hearing Officer Decision

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH).  On or about November 1, 2024, the district moved to dismiss the case on the ground that the IHO lacked subject matter jurisdiction over the parent's claim (Mot. to Dismiss at pp. 1-4, 6).[6]  The parties proceeded to an impartial hearing on November 11, 2024, which concluded on December 12, 2024, after two days of proceedings (Tr. pp. 1-60).  During the November 11, 2024 impartial hearing the parent's attorney indicated the parent was not seeking any compensatory relief but was requesting direct funding for speech-language therapy and OT at the "contracted rate" (Tr. p. 6).[7]

In a decision dated February 11, 2025 the IHO determined, at the outset, that she would not apply the Burlington/Carter analysis to the matter because it was not a tuition reimbursement case but indicated that, even if she did, she would reach the same conclusion (IHO Decision at pp. 3, 6 & n. 5).  The IHO determined the district did not dispute the student's entitlement to the recommended services in the April 2022 IEP or the March 2024 IEP and also conceded that it did not implement the recommended speech-language therapy or OT (IHO Decision at p. 4).  Accordingly, the IHO determined the district denied the student a FAPE for the 2023-24 school year (id.).

The IHO determined that an appropriate remedy for a denial of a FAPE may include an award of compensatory education or services (IHO Decision at p. 6).  The IHO also noted that, though she was not applying the Burlington/Carter analysis, any relief ordered must be appropriate and was subject to equitable considerations, which she considered when making her determinations (id.).

First, the IHO determined that the Strivright director of services (director) was not "an entirely credible witness" and gave her testimony limited weight (IHO Decision at p. 7).  The IHO determined that, although the director testified about the speech-language therapy provider's and supervisor's services, she was unable to explain exactly what steps the provider would have taken to compensate for the fact that the IEP at issue was out of date at the time provider started serving the student, or what kind of informal assessments the provider would have administered (id.).[8]  The IHO also determined that the director was an employee of Strivright which would be the direct beneficiary of any award of speech-language therapy funding (id.).  Similarly, the IHO determined that, because the occupational therapist was self-employed and the only beneficiary of any award of OT funding, she was a highly interested witness, and her testimony was "also of limited credibility" (id.).

Next, the IHO determined that both the speech-language therapy progress report and OT progress report failed to show what services each provider actually delivered to the student, what assessments they used to measure present levels or progress, or how the student may have progressed, if at all, as a result (IHO Decision at p. 7).  The IHO determined the student's speech-language therapy and OT were not reasonably designed to meet the student's applicable needs and that it would be unreasonable to order the district to fund speech-language therapy and OT services given the weakness of the evidence (id. at p. 8).

In the alternative, the IHO also determined that there was no convincing evidence in the hearing record as to the reasonableness of the rates requested for the private speech-language therapy and OT and that she would reduce the rate for speech-language therapy to $85 per hour and order OT be at a reasonable market rate "as determined by the Implementation Unit based on similar services from a similarly qualified [occupational therapist]" (IHO Decision  at pp. 8-9).  The IHO also determined that direct payment would have been appropriate (id. at pp. 9-10).

Based on the foregoing, the IHO denied the parent's requested relief (IHO Decision at p. 10).

IV. Appeal for State-Level Review

The parent appeals, alleging that she met her burden to prove that the private speech-language therapy and OT services were appropriately tailored to the student's needs as a learner and that IHO erred in determining that the speech-language therapy and OT progress reports failed to show what services each provider actually delivered to the student, what assessments they used to measure present levels or progress, or how the student may have progressed as a result.  The parent argues that the private providers were not required to formally assess the student, and progress is not dispositive to a finding of appropriateness.  The parent also argues that the IHO erred in determining the parent's witnesses were not credible.  Moreover, the parent alleges that the IHO displayed bias, placing her impartiality into question.  The parent submits additional evidence to be considered on appeal to support her argument that the IHO was biased and not impartial.  As relief, the parent requests a reversal of the IHO's determinations, an order directing the district to fund the private speech-language therapy and OT services at a rate of $250 per hour, and for action to be taken to ensure the IHO does not preside over matters she believes involve "resource stealing parasites from legitimate claims."

In an answer with cross-appeal, the district generally denies the material allegations contained in the request for review.  The district argues that the IHO properly determined that the hearing record lacked evidence demonstrating the appropriateness of the private speech-language therapy and OT services.  The district also alleges that the IHO was not biased, and that the parent's proposed additional evidence should not be considered.  As for its cross-appeal, the district argues the IHO erred by rejecting the "USBLS Estimates" submitted into evidence as providing reasonable market rates for speech-language therapy and OT services.  The district alleges that if the SRO should award funding, the SRO should take judicial notice of the May 2023 United States Board of Labor Statistics (USBLS) Estimates and award a rate of $62.20 per hour for speech-language therapy and $69.32 per hour for OT.[9]  The district also alleges that the parent failed to provide the district with timely notice of her intent to unilaterally obtain private services at public expense.  The district argues to uphold the IHO's determinations and dismiss the parent's request for review, or, in the alternative, to sustain its cross-appeal.

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]).[10]

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., 694 F.3d at 184-85).

VI. Discussion

At the outset, the district does not appeal the IHO's finding that it denied the student a FAPE for the 2023-24 school year by failing to implement the services recommended in the student's November 2022 IESP (IHO Decision at p. 2).  Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (see 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. Preliminary Matters – IHO Qualifications/Bias

The parent argues that the IHO expressed policy concerns and views which establish that she was not capable of being impartial in cases involving implementation failures.

It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

The parent argues that the IHO's repeated statements about the disproportionate use of resources for students who file complaints resulting from the district's implementation failures reveal a bias and make clear the IHO's inability to act as a neutral arbiter.  Generally, the parent asserts that that IHO has "exhibited a consistent pattern of denying all relief based on her personal beliefs that implementation failure cases are resource hogs" and "mere rate disputes" that are "undeserving of the same due process rights as other types of cases"; that the IHO's bias was "undeniable when analyzing her past decisions"; that the IHO "has taken the extraordinary step of dismissing due process complaints brought by [p]arents seeking relief for implementation failure, citing concerns about judicial economy and resource allocation"; that the IHO's "pattern of bias conduct towards cases stemming from implementation failure leads the IHO to consistently hold these students to a more stringent standard than prescribed by law"; that the IHO's "policy preference not only violates her duty as an impartial hearing officer but also undermines the legal rights of parents and students"; and that the IHO's "policy preferences appear to override her legal obligations" (Req. for Rev. pp. 4-9).

The parent cites to additional evidence submitted with her request for review to support her allegations.[11]  However, as the district argues, the parent does not cite anything in the hearing record to substantiate the allegation that the IHO exhibited bias in the present matter.

Initially, the types of cases in which the parent argues that the IHO demonstrates bias fall under New York Education Law § 3602-c, the dual enrollment statute, which the parent concedes is not at issue in the present matter.  There have been many conflicting viewpoints regarding the dual enrollment statute, and interpretation of the law has continued to evolve and may still evolve further.  Accordingly, the IHO's views regarding dual enrollment cases, alone, do not reflect bias.  Further, the parent does not connect the IHO's purported views in dual enrollment cases to the issues presented in this matter but instead argues that the IHO's alleged bias in dual enrollment cases "creates a presumption" that the IHO cannot be impartial "in any implementation failure matter" (Req. for Rev. at p. 9).  The parent's argument in this regard has no basis in the hearing record.  To the contrary, unlike the dual enrollment cases that the parent references, in this matter, the IHO did not dismiss the parent's due process complaint notice.  Instead, the IHO held an impartial hearing, received evidence from both parties, and issued a decision on the merits.  Accordingly, the hearing record does not support the parent's allegation that the IHO exhibited bias.

B. Unilaterally Obtained Services

The crux of the dispute between the parties relates to the appropriateness of the parent's unilaterally obtained speech-language therapy and OT services delivered to the student during the 2023-24 school year and whether equitable considerations favor an award of direct funding of the unilaterally obtained services.  Prior to reaching the substance of the parties' arguments, some considerations must be given to the appropriate legal standard to be applied.

In this matter, the student attended a preschool program selected by the parent and the parent does not seek funding from the district in for the costs of the preschool program.  Instead, the parent alleged that the district failed to implement some of the student's public special education services mandated in the preschool IEP for the 2023-24 school year, and, as a self-help remedy, she unilaterally obtained private speech-language therapy from Strivright and private OT from an individual provider for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

In this instance, the IHO did not rely on the Burlington/Carter model of analysis to resolve the parties' dispute (see IHO Decision at pp. 3, 5-6).  However, to the extent the IHO erred in this regard, such error was harmless as a review of the IHO's decision indicates that, in reaching the determination to deny the parent's requested relief, the IHO did evaluate the appropriateness of the unilaterally obtained services and weighed equitable considerations (id. at pp. 7-9).  I turn now to the parties' allegations regarding the IHO's analysis in this regard.

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

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

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

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

1. Student's Needs

Although not in dispute on appeal, a brief discussion of the student's needs provides context to resolve the issue of whether the private speech-language therapy and OT unilaterally obtained by the parent were appropriate for the student for the 2023-24 school year.  The evidence in the hearing record that describes the student's needs includes the November 9, 2022 CPSE IEP and the March 14, 2024 CPSE IEP (Parent Ex. B at pp. 1-21; Dist. Ex. 4 at pp. 1-19).

As noted above, the November 9, 2022 CPSE found the student eligible for special education and related services as a preschool student with a disability (Parent Ex. B at p. 1).  As noted above, the November 2022 IEP indicated that the student presented with weakness in cognition, adaptive behavior, expressive and receptive language, social/emotional development, and fine and gross motor skills (id. at pp. 2-7).  The IEP included scores and a narrative description of the student's performance on the Wechsler Preschool and Primary Scale of Intelligence-Fourth Edition (WPPSI-IV), Vineland Adaptive Behavior Scales (edition not identified), Developmental Assessment of Young Children, Second Edition (DAYC-2), Preschool Language Scales, Fifth Edition (PLS-5), Goldman-Fristoe Test of Articulation, Third Edition (GFTA-3), Khan-Lewis Phonological Analysis, Third Edition (KPLA-3), the Sensory Profile, and Peabody Developmental Motor Scales, Second Edition (PDMS-2) (id. at pp. 2-3).  According to the November 2022 IEP, the student's cognitive ability was assessed by both the WPPSI-IV and the DAYC-2 (id. at p. 2).[12]  As reflected in the IEP, administration of the WPPSI-IV yielded a full-scale IQ of 64, which fell in the extremely low range of intellectual functioning (id.).  As assessed by the DAYC-2 the student's cognitive skills were judged to be in the "below average range" (id.).  The November 2022 IEP indicated the student's overall adaptive behavior, as assessed using Vineland Adaptive Behavior Scales, was at a "[m]oderately [l]ow" level (id.).  The student's adaptive levels in communication, daily living and socialization were also moderately low, while the student's adaptive level for motor skills was low (id.).

Regarding academic achievement, the November 2022 IEP indicated the student matched shapes including a circle, square, and triangle (Parent Ex. B at p. 3).  The student rote counted to five and counted up to five objects (id.).  It was reported that the student was unable to match objects by color, shape or size and could not tell if objects are heavy or light (id. at p. 4).  The student could not put graduated sized objects in order or build a bridge using three blocks (id.).  It was reported in the November 2022 IEP that the student enjoyed playing with blocks, trucks, and his ball (id. at p. 3).

The November 2022 IEP indicated that the student communicated by pointing, spoke in single words and gave short responses (Parent Ex. B at p. 5).  According to IEP, the student's speech and language development was assessed using PLS-5 (id. at pp. 2-3).[13]  The student's performance on the PLS-5 yielded a standard score of 80 for receptive language, 78 for expressive language, and a total language standard score of 78 (id.).  The IEP indicated that receptively, the student demonstrated an understanding of spatial concepts, quantitative concepts, and made picture inferences (id. at p. 3).  The November 2022 IEP reported that the student accurately stated that he was a boy and answered general information questions (id.).  However, the November 2022 IEP also indicated that the student was unable to complete picture analogies, identify negatives in sentences, or "point to sentences with post-noun elaboration"(id.).  The IEP noted the student also demonstrated difficulty with advanced spatial concepts and confused gender pronouns (id.).  Additionally, the November 2022 IEP indicated that the student had difficulty following directions and could not respond appropriately to questions (id. at p. 2).  The IEP stated that the student occasionally repeated some words in (test) directives, and the evaluator reported that this "may be indicative of language processing difficulties" (id. at p. 3).  It was also reported that the student "generally appeared to have difficulty processing longer auditory information accurately" (id.).

The November 2022 IEP reported that the parents expressed concerns with the student's speech and language development in regard to expressive speech and articulation delays (Parent Ex. B at p. 4).  The student was characterized as having poor articulations skills and was reportedly difficult to understand (id.).  It was noted that during the evaluation the student had difficulty expressing himself and "visibly groped to communicate" (id. at p. 5).  The student's articulation skills were assessed using the GFTA-3 the administration of which yielded a standard score of 89 (id. at p. 3).  It was reported in the November 2022 IEP that the student often stuttered and had difficulty getting his words out and became "increasingly frustrated as a result" (id. at p. 4).  It was also reported that the student often used filler words such as "umm" and "uhh" and blinked his eyes when he stuttered (id. at p. 5).  The parent reported that the student would try over and over until he was understood but occasionally stopped talking and walked away (id. at p. 4).

Socially, the November 2022 IEP indicated that the student was assessed using the DAYC-2, which showed the student's social/emotional skills to below average (Standard Score 86) (Parent Ex. B at p. 4).  The November 2022 IEP reported that the student avoided common dangers and changed activities/transitioned when required by the parent or teacher (id. at p. 5).  It also reflected that the student sought the comfort of others when hurt or upset (id. at p. 4).  The IEP stated that the student looked at a person when speaking and recognized if they were happy or sad (id. at p. 5).  It further noted that the student recognized family members and smiled in response to a friendly voice (id. at p. 4).  Regarding play and leisure, the November 2022 IEP indicated that the student showed interest in things around him and played make-believe (id.).  The IEP reported that the student could play with another child for up to five minutes, but he did not have a best friend (id.).  The November 2022 IEP described the student as having poor interpersonal skills and stated he had difficulty with social interaction and play skills (id. at p. 2).  According to the IEP, the student's teacher stated "that the child d[id] not yet interact appropriately with his peers, as he tend[ed] to stay on the side" (id. at p. 5).

It was noted in the November 2022 IEP, that during the evaluation of the student, he transitioned well, attended, and cooperated (Parent Ex. B at p. 5).  Additionally, it was noted that during the assessment the student smiled at the evaluator and banged his fists together when excited (id.).  The November 2022 IEP indicated that the parent reported concerns with the student's distractibility, expressive language delays, and socialization skills (id.).  It also reported that the student asked for assistance when having difficulty, and did not usually take turns, or show off by repeating songs or dances for others (id.).  According to the November 2022 IEP, the student demonstrated difficulty with understanding and following the classroom rules (id.).  It noted that the student also displayed difficulty in communicating clearly and easily to others (id.).  The November 2022 IEP indicated that the student showed weaknesses in interacting appropriately with others and gaining attention from peers in appropriate ways (id.).

The November 2022 IEP indicated that based on the results of the DAYC-2 the student's  gross motor and fine motor skills were in the poor range (Parent Ex. B at pp. 2, 6).[14]  Regarding the student's gross motor skills, the IEP noted the student hopped on one foot, threw a ball, climbed on low play equipment, and ran at least 10 feet without falling (id. at p. 6).  The November 2022 IEP also reported that the student ran in a "clumsy manner" and "sway[ed] excessively when balancing on one foot" (id.).  The student's PDMS-2 gross motor score was -1.73 deviation from the mean (4th percentile) (id. at p. 3).  The student was unable to throw overhead with accuracy or walk backwards (id. at p. 6).  The November 2022 IEP reported that the student walked up and down stairs placing two feet on each step with the support of the handrail or wall (id.).  The IEP noted that the student had difficulty sitting appropriately while being evaluated (id.).

The student's fine motor and visual motor skills were also assessed using PDMS-2 with the student's performance yielding scores that were -1.60 standard deviation from the mean on both scales (Parent Ex. B at p. 3).  According to the November 2022 IEP the student displayed inefficient fine motor grasp patterns, and delays in eye hand coordination and intra palmar manipulation (id. at p. 6).  The student did not hold a crayon or pencil in adaptive fashion (id.).  When drawing the student did not hold the paper in place or imitate vertical or horizontal strokes (id.).  The November 2022 IEP noted that the student was unable to copy a circle or a cross or trace a line (id.).  The student was reported to have difficulty with skills such as: folding a paper, cutting across a paper or a line, removing a cap, and lacing a card (id.).  According to the November 2022 IEP the student typically used one hand when completing fine motor tasks, turned pages in a book, scribbled spontaneously, and placed pegs into a peg board (id.).  The results of the Sensory Profile reflected in the November 2022 IEP revealed that the student's scores in sensory processing were -1.50 standard deviation from the mean (id. at p. 3).  Additionally, the IEP indicated the parent expressed concerns regarding the student's decreased fine motor abilities and sensory processing skills (id. at p. 7).

The November 2022 CPSE identified the modifications and resources needed to address the student's management needs including: the opportunity to participate in all activities deemed appropriate by adults in the classroom with visual, verbal cues, and positive reinforcement (Parent Ex. B at p. 8).[15]

The CPSE met on March 14, 2024 and determined that the student continued to qualify for special education programming and related services and recommended the same special education programing and related services at the same frequencies; however, with an increase in the duration of PT sessions (compare Parent Ex. B, with Dist. Ex. 4).  No new evaluative data or updated assessments were reported in the March 2024 IEP (see Dist. Ex. 4 at p. 2).[16]

2. Private Services

At the outset, the parent asserts that the IHO erred in according limited credibility to the testimonies of the director of services at Strivright (director) and the occupational therapist (IHO Decision at p. 7).  Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).

Here, review of the IHO's decision reflects that, although the IHO found that the Strivright director was "not entirely credible" and that the occupational therapist's testimony was "of limited credibility," she did not discount the testimonies entirely and also referred to her determinations as relevant to the "weight" she accorded the testimony (see IHO Decision at p. 7).  Accordingly, to the extent that I agree or disagree with IHO's findings of fact, it is based on the weight accorded to the evidence, not specific findings by the IHO that one or more of the witnesses specifically failed to offer credible testimony (see L.K. v. Ne Sch. Dist., 932 F. Supp. 2d 467, 487-88 [S.D.N.Y. 2013]; E.C. v. Bd. of Educ. of City Sch. Dist. of New Rochelle, 2013 WL 1091321, at *18 [S.D.N.Y. Mar. 15, 2013]; J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *9-*10 [S.D.N.Y. Feb. 20, 2013]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 581 [S.D.N.Y. 2013]).

As addressed further below, the totality of the evidence supports a finding that the OT and speech-language therapy provided to the student during the 2023-24 school year were appropriate and tailored to meet the student's unique needs.  Review of the speech-language therapy and OT progress reports coupled with the testimonies of the director and occupational therapist supports a reversal of the IHO's determinations.  I will address each service in turn below.

a. Speech-Language Therapy

The evidence in the hearing record related to the speech-language therapy services provided to the student during the 2023-24 school year included: the Strivright parent/provider contract signed September 21, 2023, the Strivright director's testimony, the speech-language therapist's and speech-language therapist's supervisor's credentials, and the speech-language therapy progress report dated May 23, 2024 (Tr. pp. 16-25; Parent Exs. C; E; F; I).

According to the director's sworn affidavit, the agency provided the student with two 30-minute sessions per week of individual speech-language therapy during the 2023-24 school year (Parent Ex. I ¶¶ 10-11).  The May 23, 2024 speech-language progress report also indicated that the student was provided with two 30-minute sessions per week of individual speech-language therapy (Parent Ex. F at p. 1).  The director testified during the impartial hearing that the speech-language therapist began providing the speech-language therapy services to the student on October 12, 2023 (Tr. p. 18).  The director also testified that the speech-language therapy services were provided at the student's school outside of the classroom (Tr. pp. 21-22).  Additionally, the director testified that the agency only charged parents for services their children received and that providers "tried to make up sessions" if they were missed (Tr. pp. 21-22).[17]

During cross-examination the director testified that she did not have the March 2024 IEP and that the speech-language therapist worked off the student's November 2022 IEP during the 2023-24 school year (Tr. pp. 20-21).  During the impartial hearing, the director also testified that, when the speech-language therapist began working with a student, she would conduct her own informal assessment "to determine and see what the child is up to" and come up with her own goals that "w[ould] usually fall under the IEP goals" (Tr. p. 21).  When further cross-examined, the director testified that she did not know what kind of informal assessments the speech-language therapist administered (id.).  The director testified that, if the student's annual IEP goals were completely inappropriate, the speech-language therapist would reach out to the district and submit updated goals (id.).

The May 2024 speech-language therapy progress report documented that the student displayed delays in expressive and receptive language skills and presented with an articulation disorder and stuttering (Parent Ex. F at p. 1).  With regard to expressive language, the progress report stated that the student had difficulty retelling stories and articulating his thoughts and feelings (id.).  In addition, the student displayed difficulty with categorizing and describing objects but could name opposites (id.).  In terms of receptive language, the progress report indicated the student had difficulty responding to comprehension questions, following directions, and understanding advanced spatial concepts (id.).  The May 2024 speech-language therapy progress report also noted that the student had difficulty focusing and often needed to be redirected (id.).  The speech-language therapist reported that the student had difficulty following along with lessons in the classroom, answering questions about stories read aloud, and sequencing three-step picture cards (id.).

Regarding specially designed instruction, the May 2024 speech-language progress report identified annual speech-language therapy goals with short-term objectives to address the student's receptive language skills, expressive language skills, articulation/phonological delays, and fluency, which were the same goals and objectives included in the November 2022 IEP (compare Parent Ex. B at pp. 11-13, with Parent Ex. F at pp. 1-2).[18]

In addition, the May 2024 progress report stated that the "[p]rovider use[d] evidenced-based practices, e.g., modeling, recasting, wait time, repetitions, expansions and acoustic highlighting to enhance language skills" (Parent Ex. F at 2).  With regard to receptive language, the speech-language therapist noted that she provided moderate prompting to aid the student when sequencing three-step picture cards (id.).  The speech-language therapist also provided cues such as "first, then, and last" to aid the student in describing the three-step picture sequence cards (id.).  The speech-language therapist explained in the progress report that she presented the student with story books and thematic unit activities to help support and increase the student's vocabulary and general knowledge skills (id.).  The May 2024 progress report also indicated that the student displayed difficulties with retelling stories and the speech provider utilized manipulatives to help support the student in reenacting the story aloud (id.).

The speech-language therapist also reported in the May 2024 progress report that the student's articulation and fluency skills "continue[d] to be compromised" (Parent Ex. F at 2).  The progress report reflected that the "[p]rovider use[d] traditional articulation evidence-based practices which may include[d] auditory discrimination activities, oral-motor exercises, sound production drills, practice exercises, and repetition to remediate errors and enhance speech clarity" (id. at pp. 2-3).  The speech-language therapist also indicated that she used "[f]luency shaping techniques such as light articulatory contact[to] help [the student] in gaining smoother speech" (id. at 3).

In regard to student progress, while a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), 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).

Here, the director testified through sworn affidavit that the student's progress was measured "through consistent meetings with the provider and support staff and observation of [the student] in the classroom" (Parent Ex. I ¶ 18).  The director's sworn affidavit also reflected that the May 2024 progress report entered in evidence was an accurate representation of the student, his delays, and how the services provided addressed those delays (id. ¶ 16).  The director's sworn affidavit indicated that the student had "already shown signs of progress with his service provider," but continued to require services to address academic and social delays (id. ¶¶ 19-20).

According to the May 2024 speech-language therapy progress report, the student "displayed some progress towards meeting his annual goals" (Parent Ex. F at p. 2).  The speech-language therapist reported that the student answered basic "wh" questions but struggled with higher order thinking questions (id.).  The progress report also stated that the student had progressed in his ability to infer information and ideas from picture cards (id.).  The progress report also noted that the student "demonstrated improvement in his ability to focus on a task for an increasing amount of time" (id.).  The speech-language therapist indicated that the student had demonstrated "some improvement" when reenacting stories read aloud to him with manipulatives (id.).  Additionally, the speech-language therapist reported the student was "gaining smoother speech" with light articulatory contact (id. at p. 3).

b. Occupational Therapy

The evidence in the hearing record related to the OT services provided to the student during the 2023-24 school year includes: the OT parent/provider contract signed October 26, 2023, the occupational therapist's testimony, the occupational therapist's credentials, and the OT progress report dated May 23, 2024 (Tr. pp. 26-36; Parent Exs. D; E; G; H).

According to the evidence in the hearing record, the provider was a certified occupational therapist in New York State (Parent Exs. E at p. 5; H ¶2; G at pp. 1-2).  The evidence further demonstrates that, on October 26, 2023, the occupational therapist started providing two 30-minute sessions of individual OT weekly to the student (Tr. pp. 29-30, 35-36; Parent Exs. G at p. 1; H ¶ 7).  The occupational therapist testified at the hearing that the parent was only charged for services rendered and she tried to complete make up sessions during the same week (Tr. pp. 35-36).  According to the occupational therapist's testimony, the student's weekly individual OT services were provided in a separate room within the school and the "individualized sessions . . . included a great deal of specialized instruction" (Tr. p. 30; Parent Ex. H ¶ 11).

The May 2024 OT progress report noted the student's then-current levels of performance and indicated that he presented with delays in sensory processing/focal maintenance as well as visual deficits and had shown some unintegrated reflexes (Parent Ex. G at p. 1).  The OT progress report noted that "[d]elays in these areas must be addressed in order to enable [student] to participate in educational type of activities and function appropriately in his school and home environments" (id.).  The May 2024 OT progress report indicated that the student became distracted very easily and had a difficult time focusing for extended periods of time (id.).  The occupational therapist reported that the student required "a lot of redirection in order to attend [to]a task or lesson" (id.).  The progress report also noted that the student had difficulty with auditory and visual memory, and that his teacher also noted the student's difficulty maintaining attention (id.).

Turning to sensory needs, the OT report described the student as "crav[ing] sensory input to help him feel regulated, focused and able to attend within the classroom setting" (Parent Ex. G at p. 1).  During the hearing the occupational therapist described the student as a "sensory seeker, which mean[t] he had an extremely hard time staying focused," could not "feel [his] body," and that he didn't know where he was  in space (Tr. p. 31).  The occupational therapist also described in the May 2024 progress report that the student was specifically delayed in the "moro reflex" which resulted in an "exaggerated startle reaction with excessive release of the stress chemicals" (Parent Ex. G at p. 1).  The occupational therapist noted in the May 2024 progress report that, "[t]his causes a child to experience a state of stress or "hyperarousal," which contributes to decreased memory/ability to learn, excessive anxiety, and hypersensitivity to different types of sensory input" (id.).  The OT progress report also indicated that the student had an unintegrated "ATNR reflex" which could have a direct "result" on visual skills (id.).  The occupational therapist reported that the student displayed difficulty with visual perceptual skills including difficulty in forming letters and copying complex color patterns (id.).

To address the student's sensory integration needs, the occupational therapist provided "rhythmic movement activities, sensory input, and sensory regulation, 'astronaut training' to help provide [the student] with the vestibular and proprioceptive input which will enable[d] him to feel regulated and ready to learn in the classroom setting" (Tr. p. 31; Parent Ex. G at pp. 1-2).  During the hearing the occupational therapist described "astronaut training" as vestibular training followed by proprioceptive input (Tr. p. 32).  The occupational therapist testified that the "astronaut training" combined music and spinning with specific equipment "and then that g[a]ve them that grounding that they're seeking" (id.).  The occupational therapist also described that she worked on the student's visual skills during OT (Parent Ex. G at p. 2).  Additionally, according to the hearing record, the occupational therapist "collab[o]rated with the SEIT, to carry over sensory input via a "brushing protocol," which the SEIT provided during "transitional times," in order to "provide [the student] with the input he need[ed] to be able to feel focused and safe in his seat" (Tr. p. 31; Parent Ex. G at p. 2).

In the occupational therapist's sworn affidavit, she stated that she provided individual OT services to the student, prepared OT sessions, created goals, wrote progress reports, and met with teachers and parents (Parent Ex. H ¶ 8).  The occupational therapist testified that she completed informal assessments based on frequent teacher and parent feedback regarding how much the student focused and how he was doing at home (Tr. pp. 31, 33).  The occupational therapist also testified that she kept a log for herself to track the student's progress and provided official progress reports as requested (Tr. p. 33).  The occupational therapist testified that she observed the student in the classroom "at least once a month" but later testified she observed him "at least once a week" (Tr. p. 34).  The occupational therapist testified that she came and observed the student in the classroom to see how he was doing with shifting his focus, his visual skills like forming letters, his ability to sit, and his functioning in the classroom setting (id.).  Additionally, according to the occupational therapist's testimony, "[she] sp[oke] to the parents, the teacher, and if there [wa]s a special Ed provider, which in this case there [wa]s, [she] ke[pt] in touch with all them on a consistent basis just to check progress and let them know what he's doing and what more things they could do to help the services be integrated better" (Tr. p. 31).

According to the occupational therapist's sworn affidavit, the May 2024 progress report entered into evidence was an accurate representation of the skills she worked on with the student including goals and the student's progress over the course of the 2023-24 school year (Parent Ex. H ¶¶ 9-10).  The occupational therapist also testified through sworn affidavit that the student's progress was measured through quarterly assessments, consistent meetings with teachers and other support staff, observation of the student in the classroom, and daily session notes (id. ¶12).

With respect to progress, the May 2024 OT progress report indicated that, in the beginning of the year, the student had a very limited attention span but that he had "improved tremendously, and [wa]s now often able to follow the classroom routine, with cues"(Parent Ex. G at p. 2).  Additionally, the progress report reflected that the, "[student] c[ould] now focus for longer periods of time within the classroom setting" (id.).  It was also reported that the student still required redirection and cues to follow the task at hand (id.).  The occupational therapist testified during the hearing that "the teacher actually told [her] she saw a tremendous difference from when therapy started" (Tr. pp. 31-32).  Additionally, the May 2024 progress report indicated that the student was starting to form some letters in a legible manner (Parent Ex. G at p. 2).  According to the occupational therapist's sworn affidavit the student had already shown signs of progress, but due to academic and social delays still required the continuation of OT twice weekly (Parent Ex. H ¶¶ 13-14).

Additionally, the occupational therapist testified during the hearing that she was aware of the new March 2024 IEP and updated the student's annual goals in beginning of year through direct observations, teacher reports from the classroom and parent reports from home (Tr. pp. 34-35).  The May 2024 progress report reflected that the occupational therapist created new annual goals for the student that focused on: staying on task 85 percent of the day with minimal verbal cueing; increasing his ability to attend and complete a task; increased awareness on how to take care of his sensory needs independently; improved in integrating reflexes; and writing all the letters legibly with moderate visual cues (Parent Ex. G at p. 2).  The May 2024 OT progress report reflected similar student needs as indicated in the March 2024 IEP and the same annual goals as March 2024 IEP (compare Parent Ex. G at p. 2, with Dist. Ex. 4 at pp. 11-12).  The May 2024 progress report also noted that the occupational therapist strongly recommended that the student continue to receive occupational therapy services to develop "crucial skills," which were significantly delayed, to help him participate in educational type of activities and function within his classroom and home settings (Parent Ex. G at p. 2).

c. Summary

Based on the foregoing, I find there is sufficient evidence to show the student received speech-language therapy and OT services that were specially designed to address the student's specific needs related to receptive language skills, expressive language skills, articulation/phonological delays, fluency, sensory processing/focal maintenance, and visual deficits during the 2023-24 school year.

In finding the evidence insufficient to demonstrate the appropriateness of the private services, the IHO determined that both the speech-language therapy and OT progress reports included limited goals and performance levels, failed to show what services each provider actually provided the student, what assessments they used to measure present levels or progress, or how the student may have progressed, if at all, as a result (IHO Decision at p. 7).  However, as set forth above, the progress reports as well as the testimony described the student's needs, the goals addressed during therapy sessions, and stated the frequency and duration of services provided, all of which were consistent with the student's IEPs, and described the student's progress.  The IHO inaccurately stated that neither provider testified at the impartial hearing (IHO Decision at p. 7) when, in fact, the occupational therapist testified.  While it may have been preferrable for the student's speech-language therapy provider to testify as well, there is no requirement that parents must present particular forms of evidence in order to meet their burden under the Burlington-Carter standard.  Rather, a "totality of the evidence" standard should be employed when determining the appropriateness of a unilateral placement.

As a final matter, the district agues in its answer and cross-appeal that the parent's unilaterally obtained program was not appropriate for the student because the parent did not arrange for the student to receive SEIT and PT services.  However, according to the March 2024 IEP, which the district introduced as evidence, the student received SEIT services during the 2023-24 school year (see Tr. p. 7; Dist. Ex. 4)  The March 2024 IEP indicated that the SEIT provider worked on the following skills with the student: preacademic concepts; classroom functioning, attention and participation; and receptive and expressive language, as well as social interaction and play (Dist. Ex. 4 at pp. 2-3).  Although the student did not receive PT services, the IEP suggests that the SEIT provider monitored the student's gross motor functioning and encouraged his development of gross motor skills (id. at p. 4).  In addition, the IEP indicated the SEIT provider used prompts, visual cues, verbal models, and extensive praise to foster the student's ADL skills (id.).  Accordingly, the district's argument that the student did not receive a critical part of his recommended program during the 2023-24 school year is not supported by the hearing record.  It is well settled that the legal standards by which unilateral placements, or unilaterally obtained services, are judged expressly allow for flexibility and consideration of the totality of the circumstances rather than rigidly proscribed criteria (see Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65 ["No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits . . . [and] . . . 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"]).  Thus, a failure to furnish every special service necessary for the student, including related services, will not render a unilateral program inappropriate if the program as a whole is reasonably calculated to enable the student to receive educational benefits (T.K. v. New York City Dep't of Educ., 810 F.3d 869, 878 [2d Cir. 2016]; C.L., 744 F.3d at 838-39).

C. 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. 10-day/CSE Notice of Placement

The district also argues that the parent's request for funding for private services should be denied in full as there was no evidence that the parents provided the district with a 10-day notice of her intent to unilaterally obtain private services for the student during the 2023-24 school year.

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, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

Here, the district correctly notes that the hearing record does not include evidence that the parent provided the district with 10-day written notice stating the parent's intent to unilaterally obtain private services.  However, there was no argument or allegation during the impartial hearing regarding the lack of 10-day notice.  Given the lack of discussion during the impartial hearing and the undeveloped state of the hearing record, it would be imprudent to reduce the award of district funding for the unilaterally-obtained services based solely on the absence of a 10-day notice.

2. Excessive Costs

The parent has not appealed from the IHO's determination that there was no evidence as to the reasonableness of the rates charged for private speech-language therapy and OT services and that, if she had found the services appropriate, she would have reduced the rates to be funded by the district to $85 per hour for speech-language therapy and to a "reasonable market rate as determined by the Implementation Unit" for OT (IHO Decision at pp. 8-9).[19]  However, the district cross-appeals such findings and argues that, although the IHO was correct in reducing such rates, the IHO erred by rejecting the "USBLS" estimates for reasonable market rates for speech-language therapy and OT.  The district argues that the IHO should have awarded $62.20 per hour for speech-language therapy and $69.32 per hour for OT.

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).

Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.

According to the Strivright contract, for the 2023-24 school year Strivright provided two 30-minute sessions per week of speech-language therapy at a rate of $250 per hour (Parent Ex. C; see Parent Ex. I ¶¶ 9, 11).  The director testified that the speech-language provider received $85 per hour of the $250 and the remaining rate went to Strivright to cover other expenses including the salary of the speech-language provider's supervisor (Tr. pp. 19-20).

According to the OT parent/provider contract the student would be provided two 30-minute sessions per week of OT at a rate of $250 per hour (Parent Ex. D; see Parent Ex. H ¶¶ 5, 7).  The occupational therapist did not testify regarding what portion of the $250 went to overhead expenses but did testify that she was a solo provider, worked within the private school the student attended, at times paid a secretary to help with paperwork, paid to take specialized courses, and paid for insurance and materials (Tr. pp. 29-30).

During the impartial hearing, the district submitted evidence in an attempt to establish a reasonable market rate for services, including a report by the American Institute for Research (AIR report) and May 2022 employment and wage estimates from the USBLS for certain occupations (see Dist. Exs. 1-2).  However, in considering the reasonableness of the rate charged by the private providers, the IHO did not find the October 2023 AIR report reliable without further testimony from the report's authors (IHO Decision at p. 8; see Dist. Ex. 1).  The IHO also found that there was no convincing evidence in the record as to the reasonableness of the rates requested by the private providers, noting that the providers' affidavits included "limited, nonspecific itemization of certain overheads and expenses, which [we]re inconclusive as to the reasonableness of the requested rates" (IHO Decision at pp. 8-9).  The IHO noted that Strivright was seeking "a colossal" rate, representing an approximate 200 percent markup from the speech-language therapy provider's fee of $85 per hour (id. at p. 9).  For those reasons, the IHO determined that, if she was to award funding, she would have awarded speech-language therapy at the provider's fee of $85 per hour and OT at a reasonable market rate as determined by the "Implementation Unit" based on similar services from a similarly qualified occupational therapist (id.).

The hearing record does not support the IHO's finding that the district did not proffer any evidence to support its claim that the parent's requested rates were excessive.  With respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report and the district's arguments offer some basis to conclude that the rates charged by Strivright for speech-language therapy and by the individual practitioner for OT were excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Strivright and the private occupational therapist.

First, the AIR report draws data published by the USBLS, a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 [N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data is published.[20]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers and providers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/oes_35620.htm).[21]  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

The AIR report appears to develop "an approach to using data from the [USBLS] to calculate hourly rates for independently contracted providers" (Dist. Ex. 1 at p. 4).  If the district were to offer hourly rates that were formulated on a negotiated basis (i.e. to employees paid on an hourly basis), it would understandably try to do so in a similar manner to the way it used its bargaining power in negotiations with both the United Federation of Teachers and other entities for fringe benefits and incidental costs that result in the pay scales for public school employees.

However, a parent facing the failure of the district to deliver his or her child's IESP services and who is left searching for a unilaterally selected self-help remedy would be unable to hire teachers or providers already employed by the district (unless a teacher or provider is "moonlighting" and thus dually employed), and the parent facing that situation would therefore not be able to negotiate for private services with the same bargaining power that the district holds.  Thus, while the AIR report's reliance on the salary schedules negotiated with the United Federation of Teachers that include provisions for steps, longevity, and criteria for additional experience and education, these provisions serve a different purpose⸺they are designed to ensure fair treatment among union members who are operating in public employment.  But the fair treatment among district employees is of little or no interest to a parent who is trying to contract for services with private schools or companies after the district has failed in its obligations to deliver the services using its employees, and thus the district negotiated provisions are not particularly relevant to equitable considerations in a due process proceeding involving the funding of unilaterally obtained services.

Fortunately, the USBLS data does not indicate that it is limited to district-employed teachers.  It covers wages in the entire metropolitan region, which would include teachers and providers from across the spectrum including private schools, charter schools, and district special teachers.

The district presented evidence during the impartial hearing reflecting the USBLS's May 2022 data presenting mean hourly and annual wages for several occupations including speech-language pathologists and occupational therapists (Dist. Ex. 2).  However, I will take judicial notice of the updated data for May 2023.  For speech-language pathologists and occupational therapists, a range of hourly wages are reported specifically by the USBLS and will be considered below.

In my view consideration of a range of wages is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC) – June 2023, available at https://www.bls.gov/news.release/archives/ecec_09122023.pdf).[22]

The USBLS indicated that in May 2023 data hourly wages for "Speech-Language Pathologists" in the New York City metropolitan region ranged from $22.34 in the 10th percentile, $34.11 in the 25th percentile, $48.71 in the median, $63.71 in the 75th percentile, to $76.64 in the 90th percentile.[23]  As stated above, the Strivright director testified that the speech-language therapy provider was paid $85 per hour (Tr. pp. 19-20), which falls above the 90th percentile.  However, Strivright charged the parent $250 per hour (see Parent Ex. C), reflecting hourly indirect costs above the hourly wage of $165 or approximately 66 percent of the total rate charged for speech-language therapy services.  This falls well above the 27.7 percent in the USBLS data.

When considering the testimony described above, in which Strivright director did not present evidence of the actual costs or why such expenses would justify the amount of indirect costs included in the hourly rate charged, the evidence leads me to the conclusion that the IHO correctly found that the parent arranged for services from Strivright at an excessive cost.  The IHO indicated she would have awarded $85 per hour and the parent has not appealed this finding.  The district argues that the rate should be reduced further to $62.20 per hour based on the USBLS data.  However, the IHO's award did not fall outside of the range of an hourly rate supported by the USBLS data.  That is, even if the base hourly salary of the provider had been $63.71 per hour at the 75th percentile, with 27.7 percent added, the hourly rate would be approximately $88.11, above the rate awarded by the IHO.  Accordingly, I do not find a basis to disturb the IHO's finding that equitable considerations supported an award of funding of speech-language therapy provided by Strivright at a rate of $85.

For OT, the individual practitioner charged $250 per hour (see Parent Ex. D).  The USBLS indicated that in May 2023 data annual salaries for "Occupational Therapists" ranged from $34.09 in the 10th percentile, $42.11 in the 25th percentile, $54.28 in the median, $66.42 in the 75th percentile, to $76.00 in the 90th percentile.[24]  When using the USBLS data, a calculation leads to the conclusion that the $250 per hour rate paid directly to the provider for OT falls significantly above the 90th percentile of hourly wages for the metropolitan region in which the district is located.  Further, it is unclear from the hearing record how much of the $250 per hour rate charged by the occupational therapist went to indirect costs.  The occupational therapist testified that she was a solo provider, worked within the private school the student attended, at times paid a secretary to help with paperwork, paid to take specialized courses, and paid for insurance and materials (Tr. pp. 29-30).  The district argues that the rate should be reduced to $69.32 per hour based on the USBLS data including 27.7 percent for indirect costs.  Thus, the district does not dispute that the same percentage for indirect costs should be available for the OT provider notwithstanding that the provider was self-employed.  Accordingly, I agree with the IHO and find that the rate charged by the occupational therapist for OT services was excessive but I find that an appropriate hourly rate may be deduced by considering the USBLS data.  Because the provider did not testify as to her hourly rate before nondirect costs were factored, I will use the median rate.  Therefore, I will order the district to fund the costs of OT at the rate of $75 (the median percentile hourly rate of $54.28 plus 27.7 percent for indirect costs) as an equitable remedy.

VII. Conclusion

The evidence above does not support the IHO's determination that the parent failed to show that the private services unilaterally obtained by the parent from Strivright and the OT provider without consent of the school officials were appropriate for the student.  However, the hearing record warrants a reduction in the speech-language therapy rate charged by Strivright and the OT rate charged by the OT provider for the reasons explained above.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated February 11, 2025, is modified by reversing that portion which held that the parent failed to meet her burden of proving that the speech-language services provided by Strivright and the OT services provided by the individual practitioner were appropriate to address the student's unique needs; and

IT IS FURTHER ORDERED that the district shall directly fund the costs of the student's speech-language therapy services delivered by Strivright at a rate not to exceed $85 per hour, upon the submission of proof of the delivery of the services to the student during the 2023-24 school year; and

IT IS FURTHER ORDERED that the district shall directly fund the OT services delivered by the individual practitioner at a rate not to exceed $75 per hour, upon the submission of proof of the delivery of the services to the student during the 2023-24 school year.