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) fully fund the costs of her daughter's private services delivered by Strivright for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which found that the services delivered by Strivright were appropriate. The appeal must be sustained. The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

A Committee on Preschool Special Education (CPSE) convened on August 9, 2022, to develop an IEP for the student for the 2022-23 school year, with an implementation date of September 1, 2022 (Parent Ex. B at pp. 1, 3). The August 2022 CPSE found the student eligible for related services as a preschool student with a disability and recommended that she receive two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, and two 30-minute sessions per week of individual occupational therapy (OT) at an early childhood program to be selected by the parent (id. at pp. 1, 16).

On September 12, 2023, the parent signed an agreement with Strivright for the provision of three 30-minute sessions per week of speech-language therapy for the 2023-24 school year (Parent Ex. C at pp. 1-2). According to the agreement, the parent requested that Strivright "implement the [p]rogram to whatever extent possible" and "confirm[ed] that [she wa]s liable to pay … Strivright the full amount for all services delivered by … Strivright in the event that [she wa]s unable to secure funding from the [district] or elsewhere" (id. at p. 1).  The agreement further stated that the parent understood that Strivright intended to provide "SETSS/SEIT at a rate of $200/hour" and "Speech Language, Occupational Therapy, Physical Therapy and Counseling at a rate of $250" (id.).

The student received speech-language therapy services from Strivright during the 2023-24 school year (Parent Exs. E; F at ¶¶ 6, 12).

A. Due Process Complaint Notice

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at p. 2).  The parent invoked the student's right to pendency, asserting that the August 2022 IEP represented the last agreed upon program (id. at 1).  The parent expressed "concern regarding implementation of the [August 2022] IEP for the 2023-24 school year" and indicated that she had been unable to locate providers for the recommended program, and that the district had failed to implement their own recommendations (id. at p. 2).  The parent contended that "[w]ithout supports, the parental mainstream placement [wa]s untenable, and the failure to either implement the services or provide a placement [wa]s a denial of a FAPE for the 2023-24 school year (id.). As relief, the parent sought a finding that the district denied the student a FAPE for the 2023-24 school year, an order requiring the district to fund the parent's providers at their contracted rates, and an order that the district fund a bank of compensatory hours "for any parts of the program for the entire 2023-24 school year - or the parts of which were not serviced" at the prospective provider's contracted rate (Parent Ex. A at p. 3).

B. Impartial Hearing Officer Decision

On January 7, 2025, an impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) and concluded on the same day (Tr. pp. 1-17).  In a decision dated January 10, 2025, the IHO found that the district failed to implement the student's "IESP" for the 2023-24 school year and thereby denied the student a FAPE "on an equitable basis" (IHO Decision p. 3).  The IHO first summarized the procedural history of the matter, noting that neither party contested that the 2022 IEP was the program that should have been implemented during the 2023-24 school year (id. at pp. 3-4). Next, the IHO summarized her findings of fact and decision holding that the "Burlington/Carter Analysis" was inappropriate, and instead she would analyze the matter using a "compensatory services approach" (id. at p. 4). 

The IHO concluded that the district failed to otherwise defend its actions in not offering the student services it recommended or take a position as to what alternative services would have been more appropriate (IHO Decision p. 7). The IHO held that even if she had applied the "Burlington/Carter Analysis" she would have also held that the parent met her burden by demonstrating that the speech-language provider was appropriate as the record indicated that the provider was a licensed speech-language pathologist, was receiving weekly supervision, and was certified before beginning work with the student (id. at p. 7-8).  The IHO concluded that the provider delivered services that addressed the student's specific needs and that the student had made progress (id. at p. 8). The IHO found that the parent was financially obligated to the provider and there was no evidence in the record to suggest that equitable considerations should weigh against the parent (id.).

Finally, the IHO determined that the provider's overhead rate was excessive and declined to reimburse the provider at the contracted rate (IHO Decision p. 8). Instead, the IHO ordered that the provider be directly funded at a reduced rate of $130 per hour and ordered that the parent be reimbursed for any services she had already paid for during the 2023-24 school year (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in reducing the rate at which the district was to fund the provider. The parent argues that the IHO impermissibly reduced the rate using evidence that was not part of the record or otherwise subject to counsel's objection. [1]

In an answer and cross-appeal, the district argues that the IHO erred in failing to analyze the parent's claims under the Burlington/Carter framework and erred in finding the parent's unilaterally obtained speech-language therapy services were appropriate. The district argues that the rate charged by the parent's provider were excessive and that equitable considerations did not favor an award of the parent's requested relief.

In an answer to the district's cross-appeal, the parent reasserts her claims set forth in her request for review and argues that the district's claim that the student was not receiving OT constituted improper burden shifting.

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]). [2]

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-Unilaterally Obtained Services

Prior to reaching the substance of the parties' arguments, some consideration must be given to the appropriate legal standard to be applied.  In this matter, the district developed a preschool IEP for the student that included recommendations for speech-language therapy and OT and the parent unilaterally obtained speech-language therapy services but not OT services (see Parent Ex. B; (compare Parent Ex. C at p.1 with Parent Ex. F at ¶ 10).  Nevertheless, the district failed to provide the student with any of the recommended speech-language therapy services or OT services.  While the IHO erroneously treated this as an "IESP" case, it was clear that the preschool student had not yet reached school age.  In her July 15, 2024 due process complaint notice, the parent alleged that the district had not implemented the student's August 2022 "CPSE IEP" and that the parent was unable to locate providers willing to accept the district's standard rates (Parent Ex. A at p. 2). As a result, the parent unilaterally obtained private speech-language therapy services from Strivright for the student without the consent of the school district officials and then commenced due process to obtain remuneration for the costs thereof (id. at pp. 1-2). 

Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private OT and speech-language therapy services that were unilaterally selected by the parents.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see 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"]). [3] The IHO is mistaken in citing to Education Law Section 3602-c in reaching her conclusion that the Burlington/Carter framework "was incorrect" (IHO Decision p. 4).  Significantly, State guidance explains that Education Law 3602-c: pertains only to parental placements in nonpublic elementary and secondary schools.  It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary grade classrooms.  These students would continue to be the responsibility of the district of residence through the CSE.

("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 13, VESID Mem. [Sept. 2007], available at https://www.nysed.gov/sites/default/files/programs/special-education/guidance-on-reimbursement-claims-for-the-cost-of-providing-special-education-services-to-parentally-placed-nonresident-students_0.pdf). Therefore, the student in this matter—as a preschool-age student—was not entitled to receive equitable services pursuant to an individualized education services plan (IESP) during the 2023-24 school year, and section 3602-c requirements. (see Parent Ex. B at p. 1).

Therefore, the district is correct that the parent's request for privately obtained services must be assessed under the Burlington/Carter framework.  That is, 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 (Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).

Turning to a review of the appropriateness of the unilaterally obtained services, 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).

A. Student's Needs

Although the student's needs are not in dispute, a review thereof will provide background necessary to evaluate the appropriateness of the services provided to the student by Strivright during the 2023-24 school year.

According to the August 2022 IEP, the student's overall cognitive skills fell within the "[l]ow [a]verage range" as measured by the Wechsler Preschool and Primary Scales of Intelligence, Fourth Edition (WPPSI-4), with her verbal comprehension and visual spatial indices scores both falling in the "[l]ow [a]verage" range, and her working memory index score falling in the "[a]verage" range (Parent Ex. B at p. 3).    The IEP also reflected the results from an administration of the Developmental Assessment for Young Children - Second Edition (DAYC-2) which placed the student's cognitive skills, communication, expressive language, and social/emotional skills, as well as her physical development and adaptive behavior, within the "[b]elow [a]verage" range, and her receptive language and fine motor skills within the "[p]oor" range (id. at pp. 3-4).  The August 2022 IEP indicated that the student "lacked basic cognitive proficiencies" and that her adaptive behavior skills were delayed (id. at p. 4).  However, the IEP noted that the student's working memory was adequately developed (id. at p. 5). 

With regard to the student's language skills, the August 2022 IEP included the results of an informal administration of the Preschool Language Scale - Fifth Edition (PLS-5) which indicated that the student's auditory comprehension and expressive communication skills fell within the "mild to moderately delayed range" (Parent Ex. B at p. 4).  The IEP noted that limitations in the student's language development impaired the development of her preacademic skills (id. at p. 5). Additionally, the IEP indicated that the student identified body parts, understood the pronouns "me, mine, and your," followed simple one step directions with and without cues, identified pictures of action and pictures of objects when described by their function, and could identify colors (id.).  She was unable to follow directions involving simple spatial concepts, understand simple inferences given visual cues, understand pictured analogies and negatives in sentences, and had difficulty identifying shapes and understanding expanded sentences (id.). 

Socially, the August 2022 IEP described the student as a "friendly and personable child who [wa]s affectionate with her parents"; however, noted that she had difficulty interacting and socializing with peers in an age-appropriate manner (Parent Ex. B at pp. 6-7).  The IEP stated that the student "recognized herself in the mirror, imitate[d] previously heard statements and laugh[ed] in response to praise" (id. at p. 6).  Additionally, the IEP reported that the student's performance on the socialization domain of the Vineland Adaptive Behavior Scales "yielded adequate results", and specifically noted that she  showed interest in novel activities as well as an interest in one activity, and that at home the student could engage in elaborate pretend play sessions using symbolic play materials (id. at pp. 3, 6). The August 2022 IEP reported that the student could join group activities, initiate play with others, join already established group activities, and was learning to share and take turns; however, she did not assert herself socially, express her needs and wants to her peers and was not understood by her teacher and peers (id. at p. 6). 

The August 2022 IEP reported from the student's then-current teacher that the student did not gain attention from peers appropriately, she could follow or imitate immature behavior, did not typically sing familiar songs with classmates, did not use "please" and "thank you" even when prompted, did not play dress up, did not repeat rhymes, songs or dances for others, did not play group board or card games and did not like competitive games (Parent B at p. 6).  The student also reportedly did not like mild teasing, or to volunteer for tasks such as cleaning up, and typically did not return items to their proper place (id.).  The IEP described the student's verbalization as unclear and noted she had poor vocabulary (id.).  She was able to name 4 out of 8 pictures of familiar objects, point to 13 out of 15 common objects when named but could not identify them by their use, and could demonstrate understanding of 2 out of 3 possessives (id. at pp. 6-7). The student could not demonstrate the use of regular plurals and could not follow two-step unrelated directions (id. at pp. 6, 7). The August 2022 IEP further reported that the student could not describe what she was doing, did not give her full name upon request or change her speech "contingent on the listener" (id. at p. 6). 

Next, the August 2022 IEP reported that the student:  spontaneously named four out of five objects; developed simple play schemes; showed pride in her accomplishments; could quietly listen to a story or music; asked for assistance when needed; maintained eye contact when talking with another person; and could recognize danger (Parent Ex. B at p. 6).  Additionally, the student could interact appropriately with her peers during group games and activities, knew and followed classroom routines and rules, could name familiar characters or items seen in movies, knew the names of her classmates, used at least 50 words in spontaneous speech, used sentences of approximately three words, asked questions (mostly "why"), could identify six basic body parts, followed two-step related directions, and understood the concepts big and little (id.).  The August 2022 IEP reported that the student:  did not improvise or imitate activities using substitute objects to represent real ones; did not sequence related action in play involving two to three steps; did not state her accurate gender; lacked basic number concepts; did not repeat basic finger plays to words and actions; did not match shapes; did not accurately count by rote to five; count to five using 1:1 correspondence; did not wash her hands and face without assistance; did not don simple clothing independently; could not eat independently with a spoon; seemed to be unaware of bowel and bladder needs; and did not clean up spills (id. at p. 5).  

With regard to physical development, the August 2022 IEP reported that the student's standard score on the physical development of the DAYC-2 subtest fell within the below average range, specifically noting that gross motor skills fell within the average range, and fine motor skills fell within the poor range (Parent Ex. B at pp. 3-4, 7).  The IEP specified that the student's grasp patterns were inefficient at times and that decreased intra palmer manipulation and eye hand coordination were noted (id. at p. 7).  The August 2022 IEP further reported that the student could not tower 10 blocks, remove a cap from a screw top container, string beads or fold paper in half (id.).  Additionally, she was unable to copy a train or block design, did not imitate a vertical or horizontal stroke and did not copy a circle (id.).  The IEP noted that the student could place large and small items into a container, place pegs into a pegboard and completed a foam board puzzle (id. at p. 8).  Additionally, the August 2022 IEP reported that the student did not hop, gallop or jump over an object up to six inches high, did not hold her writing implement appropriately, held a crayon with a weak grasp, and did not use her hand to stabilize her paper when drawing (id.). 

With regard to the student's management needs, the August 2022 IEP stated that "intervention [wa]s warranted at th[e] time to address [the student's] speech needs.  [The student's] strengths allow access, participation and progress in the general education curriculum.  [h]owever, supports [we]re necessary to allow for success in the general education curriculum" (Parent Ex. B at p. 9).   The IEP also indicated that the student also needed related service supports and strategies to help the student engage in and complete age-appropriate activities (Parent Ex. B at p. 9). 

The August 2022 CSE recommended the student receive the related services of two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, and two 30-minute sessions per week of individual OT (Parent Ex. B at p. 15).   Additionally the August 2022 CSE developed approximately 11 annual goals designed to improve her basic concept and cognitive prerequisite skills, improve her communication skills, increase her attention span and focusing skills, improve her ability to transition from one activity to another, increase speech intelligibility, improve receptive language skills, improve expressive language skills, improve fine motor coordination and manipulation of classroom materials and equipment, and to improve pre-handwriting and handwriting tasks (id. at pp. 10-14). 

B. Speech-Language Therapy Delivered by Strivright

At the impartial hearing, the district argued that it had delivered OT services to the student and that any order for relief, if one issued by the IHO, should account for the fact that the district had done so (Tr. p. 19).   Regarding the appropriateness of the unilaterally obtained speech-language therapy, the parent argues that the evidence in the hearing record clearly demonstrated that the speech-language therapy services were addressing the student's needs as a learner.  The parent further argued that the provider was "meeting the goal[s] outlined in the CPSE IEP and the progress report" and that the student was showing signs of progress.  On appeal, the district argues that the parent failed to meet her burden of demonstrating the appropriateness of the unilaterally obtained speech-language therapy services and also asserts that there was no evidence that the parent had obtained OT services. [4]

The evidence shows that a clinical fellow from Strivright provided the student with speech-language services during the 2023-24 school year (Parent Exs. E at p. 1; F ¶¶ 12, 13; see at p. Tr. 13).  The student's speech-language services were typically provided outside the classroom (Parent Ex. F ¶18).  The clinician reported in June 2024 that she targeted the student's language delays through play, worksheets, games, books and activities (Parent Ex. E at p. 2).  Additionally, she indicated that she would continue to "utilize the following evidence-based methods and interventions to target language delays: prompting, modeling, repetition, rephrasing, expansion, and acoustic highlighting" (id.).  The clinician indicated that the treatment plan also included storytelling, role-playing, and language games to promote language growth and effective communication and noted that articulation errors would be targeted through play, activities and worksheets (id. at pp. 2-3). Finally, the clinician reported that the following approaches had been and would continue to be utilized: visual aids, verbal and visual models, mirrors, and traditional articulation therapy using evidence-based practices such as auditory discrimination activities, oral motor exercises, and sound production drills to enhance clarity (id. at p. 3).

The June 2024 progress report noted that the student had shown improvement in her expressive vocabulary and syntax, engaging in longer conversational turns and using more complex utterances, although she continues to require prompting to expand her responses (Parent Ex. E at p. 1).  Additionally, the provider reported that the student could answer simple "wh" questions with prompting but struggled with higher level questions such as "why" "how" and "when" and with following complex directions with multiple critical elements (id.). Further, the student had made progress in her ability to label and describe items when presented with pictures using complete sentences; however, she continued to need prompting to label various common items (id.).

The June 2024 progress report noted that the student's progress was measured through informal observation and evaluation during structured activities and play (Parent Ex. E at p. 2).  The report detailed the student's progress towards annual goals indicating that she was making progress in her receptive and expressive language skills (id.).  Specifically, the student had made progress in her ability to answer "what" and "where" questions, understand spatial concepts, comprehension of prepositions (in, on, next to, on top, inside, under), comprehension of descriptive concepts (colors, similarities/same), understanding of categorization, ability to follow directions including following two-step directions with two critical elements per directive (id.).  Expressively, the report indicated that the student had made progress in her ability to use words for a variety of functions, demonstrated the ability to request actions or objects, label objects and items, request assistance and had increased her mean length of utterance in structured activities and one-to-one conversations (id.).

The district argues that the IHO erred and should have found that the speech language services were inappropriate because they were provided by a clinical fellow instead of a fully licensed speech language pathologist.  The argument is without merit.  Upon questioning by the district the clinical supervisor at Striveright clarified that she supervised the clinical fellow and that although more supervision was needed for a clinical fellow, her own compensation was salaried and did not increase as a result (Tr. pp 14-15).  While Striveright might have opted to conduct the day-to-day delivery of services to the student with someone having a greater level of experience in the field of speech-language pathology, the district did not explore and did not assert before the IHO  that the services were inappropriate or unprofessional because the  supervising licensed speech pathologist or the clinical fellow had somehow failed to comply with Education Law Article 159 or Part 75 of the Commissioner's regulations regarding the permissible practice of speech-language.    

The district also argues on appeal that Striveright failed to show that it had conducted assessments of the student to establish the student's baseline performance at the beginning of the school year, but this argument also misses the mark for two reasons. First the obligation to adequately evaluate students falls on school districts, not parents.   Second this kind of "baseline measure" argument appears to be language that has been recycled by the  district from failed arguments brought by parents in the past who have at various times attempted to challenge the adequacy of an IEP's goals or its present levels of performance, but as explained long ago, "[c]ontrary to Plaintiffs contention, … nothing in the state or federal statute requires that an IEP contain 'baseline levels of functioning' from which progress can be measured" (R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013], aff'd, 589 F. App'x 572 [2d Cir. 2014]; see R.B. v. New York City Dep't of Educ., 15 F. Supp. 3d 421, 434 [S.D.N.Y. 2014] ["baseline levels of functioning" not required], aff'd. R.B. v. New York City Dep't of Educ., 603 F. App'x 36 [2d Cir. 2015];  D.M. v. City Sch. Dist. of the City of New York, 2016 WL 319859, at *7 [S.D.N.Y. Jan. 26, 2016] [same];  K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *10 [S.D.N.Y. Mar. 31, 2016] [noting that a lack of any legal authority regarding a baseline from which to measure progress was cited by the party or uncovered by the court]; J.E. & C.E. v. Chappaqua Cent. Sch. Dist., 2016 WL 3636677, at *13 (S.D.N.Y. June 28, 2016) [regulations do not require IEP goals to contain to contain baselines], aff'd sub nom. C.E. v. Chappaqua Cent. Sch. Dist., 695 F. App'x 621 [2d Cir. 2017]; T.C. v. New York City Dep't of Educ., 2016 WL 4449791, at *19 [S.D.N.Y. Aug. 24, 2016] [the IEP's lack of information on the student's baseline functioning in the discrete area of speech-language functioning in the present levels of performance was not a denial of a FAPE]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *20 [S.D.N.Y. Feb. 14, 2017]).  If a school district is not required to demonstrate such baseline measures, the district's similar argument, unsupported by any legal authority, that the parent was required to provide such baseline measures to prove that the student's speech-language therapy progress was appropriate is altogether without merit. [5]  I am unpersuaded by the district's arguments that the IHO erred and decline to overturn her determination that the services from Strivright were appropriate.

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"]).

In this case, the parties' dispute with regard to equitable considerations solely relates to the costs of the unilaterally obtained services from Strivright and whether the IHO properly reduced relief to the parent to $130.00 per hour.

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 was 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.

 The evidence in this case shows that the agency charged $250 per hour for the speech-language therapy services provided to the student, and of this amount, the clinical fellow, was paid $85 per hour, with the remaining sum allocated to cover various agency expenses (Tr. pp. 7, 11, 16; Parent Ex. C at p. 1).  Strivright charged the same $250 per hour rate for all students it served, and it was shown on cross-examination that Strivright exclusively works with students whose parents are suing the district in due process and they charge $250 because no providers in the "neighborhood" were willing to accept the lower contracted rate (Tr. pp. 15-16).  Thus, the beginning of an excessive cost argument was made insofar as the rates may be inflated due to the litigation model of business and the fact that only a vague "neighborhood" statement was made regarding market rates, but on the other hand the district's evidence of market rates, a report by the American Institute for Research (AIR report), lacks any reference to market rates for related services such as speech-language therapy, despite the report's title page suggesting that it does (Dist. Ex. 1).

While I can appreciate and share the IHO's concern regarding the rate charged by Strivright, the problem is that evidence of market rate data for privately contracted speech-language therapy services was not produced in this case. There are very likely speech-language therapists in the metropolitan area whose practices are not based exclusively on clients with lawsuits against the public school district, but the district has been largely unwilling to search out, produce and explore such evidence in support of its argument of excessive rates.  The IHO's reliance on the Non‐direct Care Cost Parameter for general tuition rates of school-aged programs at State-approved nonpublic schools as a benchmark is also not correlated to market costs for speech-language services, but the costs of operating a State-approved nonpublic school overall and is not a workable comparison.  Accordingly, I am constrained to find that the IHO's reduction in contracted rate was not supported by the evidence and that there is no evidence that the parent acted unreasonably in contracting with Strivright under the facts of this case.

VII. Conclusion

In summary, I decline to overturn the IHO's determination that Strivright provided appropriate speech-language services to the student during the 2023-24 school year. However, I am constrained to find that the IHO's reduction of the contracted price for the speech-language services must be reversed.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated January 10, 2025 is  modified by reversing that portion of the decision which determined that the parent was entitled to only partial funding of the services from Strivright for the 2023-24 school year; and

IT IS FURTHER ORDERED that the district shall fund the speech-language services that the parent obtained from Strivright for the student for the 2023-24 school year at a rate of $250 per hour upon the parent's submission of proof delivery of the services to the student.