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 daughter's tuition at  Kids Further Inc. (Kids Further) for the 2023-24 school year.  The appeal must be sustained in part.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

A CSE convened on October 3, 2022, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of October 19, 2022 (Dist. Ex. 1 at p. 1).[1]  The CSE recommended that the student receive five periods per week of direct special education teacher support services (SETSS) in a group, and two 30-minute sessions per week of individual speech-language therapy, all to be provided in Yiddish (id. at p. 11).[2]

On September 1, 2023, the parent signed a contract with Kids Further to provide the student with five hours per week of SETSS for the 2023-24 school year at a rate of $218 per hour (Parent Ex. E; see Parent Ex. I ¶¶ 8, 11).[3]  During the 2023-24 school year the student was in eighth grade and attended a religious, "mainstream" nonpublic school (Parent Exs. F at p. 1; I ¶ 14).  Kids Further began providing the student with five hours per week of SETSS beginning on September 4, 2023 (Parent Ex. I ¶ 11).

A CSE convened on January 17, 2024, continued to find the student eligible for special education as a student with a speech or language impairment, and developed an IESP that recommended the same program and related services as the October 2022 CSE (compare Dist. Ex. 2 at pp. 1, 8, with Dist. Ex. 1 at pp. 1, 11).  The student continued to receive SETSS delivered by Kids Further until June 30, 2024 (Parent Ex. I ¶ 11).

A. Due Process Complaint Notice

In an amended due process complaint notice dated January 27, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. B).[4]  The parent stated that she "agreed with the [program recommendations] on both the October 3, 2022 and January 17, 2024 IESPs" but alleged that the "CSE [had] not informed the parent" how it would implement the IESP for the 2023-24 school year (id. at p. 2).   The parent alleged further that the district failed to identify or assign a provider, the parent was unsuccessful in locating a provider from the district's published list, and the parent had no choice but to have the student's services implemented by a private provider at an enhanced rate (id.).  The parent requested a finding that the student was deprived of a FAPE for the 2023-24 school year, direct payment for the cost of the student's SETSS at an enhanced rate, and a bank of compensatory education services to "make up for any mandated services not provided" to the student for the 2023-24 school year at a rate "charged" by the student's provider (id. at p. 3).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on February 4, 2025 and concluded the same day (Tr. pp. 1-42).  In a decision dated February 11, 2025, the IHO found that the parent did not properly request for the district to provide the student services during the 2023-24 school year prior to June 1, 2023 pursuant to Education Law § 3602-c and that the district was under no obligation to provide services (IHO Decision at pp. 7-8).  The IHO determined that the district properly raised the June 1 affirmative defense in its opening and closing statements (id. at p. 7).  The IHO also determined that the district met its burden by introducing special education student information system (SESIS) logs into evidence, which indicated the district had not received a letter prior to June 1, 2023 (id. at pp. 7-8).  The IHO found that there was evidence a June 1 letter was sent for the 2024-25 school year, demonstrating the parent's knowledge and ability to send notice (id. at p. 8).  The IHO also determined that the Kids Further educational director's testimony, in which he stated he confirmed with the parent that a proper June 1 notice was sent via mail to the district before Kids Further provided services to the student, was insufficient and double hearsay (id.).  Based on the IHO's findings, he denied the parent's claim for direct funding of SETSS for the 2023-24 school year.

The IHO also made alternative findings that the SETSS provided by Kids Further to the student during the 2023-24 school year were appropriate and that equitable considerations would have required a reduction in the rate requested (IHO Decision at p. 8).  Regarding the equitable considerations, the IHO determined that neither party provided credible evidence proving a reasonable amount or what the market rate for SETSS was but that considering the hearing record as a whole, the $218 per hour charged by Kids Further was unreasonable and must be reduced to $175 per hour (id. at p. 10).

The IHO also denied the parent's request for compensatory speech-language therapy because of the lack of a June 1 notice (IHO Decision at p. 10).

IV. Appeal for State-Level Review

The parent appeals, alleging the IHO erred in finding that the parent failed to provide a timely June 1 notice to the district.  The parent argues the SESIS log shows that an entry was made on June 1, 2023 indicating receipt of the parent's June 1 letter.  According to the parent, the IHO's acceptance of the district representative's explanation of the entries on the SESIS log was improper because an attorney cannot testify on behalf of their client.  The parent claims that the district failed to present a witness to explain the SESIS log and that a careful examination of the SESIS log contradicts the district's position.  The parent argues that multiple entries were made for different types of documents in the SESIS log, that entries were made by a number of district staff members, and that the document itself does not support finding that a notation as to the year in the entry for the 2024-25 school year is an indication that the entry for the 2023-24 school year, without noting the year, indicates receipt of a June 1 notice for the 2024-25 school year, and that a notice was not received for the 2023-24 school year.   The parent also argues that the educational director's testimony supports the conclusion that the parent's June 1 letter for the 2023-24 school year was received by the district.  Further, the parent submits additional evidence consisting of email correspondence in March 2025 between the parent and a district staff member, which the parent asserts is evidence that the district received the June 1 notice for the 2023-24 school year on June 1, 2023.  Finally, the parent argues that the district waived its June 1 affirmative defense by creating the January 2024 IESP.

As to the IHO's alternative findings, the parent alleges the IHO erred by arbitrarily reducing the parent's requested rate of $218 per hour for SETSS to $175 per hour without any evidentiary basis.  The parent also claims the IHO erred by failing to address whether the student was entitled to a bank of compensatory education for speech-language therapy.  The parent requests reversal of the IHO's determination that the parent failed to provide a timely June 1 notice, an award of reimbursement at the enhanced rate of $218 per hour for SETSS, and a bank of compensatory education for speech-language therapy services the district did not provide during the 2023-24 school year.

In an answer, the district generally denies that parent's allegations in the request for review and argues to uphold the IHO's determinations.  The district argues the parent's additional evidence should not be accepted into the hearing record because it was generated on the parent's initiative and the parent had ample opportunity to gather and submit such email evidence at the impartial hearing if she wanted and instead, relied on the testimony of the educational director who played no role in transmitting the June 1 letter.  The district also argues the additional evidence is testimonial in nature and was not subject to cross examination, rendering it highly prejudicial.

The district also alleges that the parent failed to show that she submitted a timely June 1 notice and that the IHO's dismissal need not be overturned due to the IHO's reliance on SESIS records.  The district further alleges that the creation of the student's January 2024 IESP was not a waiver of the June 1 affirmative defense.  With respect to equitable considerations, the district argues that the IHO properly reduced the rate for SETSS.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[5]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[6]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

At the outset, the neither party appeals from the IHO's alternative decision that the SETSS provided by Kids Further were appropriate for the student for the 2023-24 school year (IHO Decision at p. 8).  Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Preliminary Matters – Additional Evidence

The parent submits with her request for review additional evidence and requests that it be considered on appeal.  The parent argues that email is evidence she timely submitted a June 1 letter to the district for the 2023-24 school year.

Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).

The additional evidence submitted by the parent includes a March 6, 2025 email from the parent to a member of the district's "CSE 8 Support Team" in which the parent asked if the district employee could confirm "what date this [June 1 notice] was entered in [SESIS]" and the district employee responded that the student's June 1 notice for the 2023-24 school year was "uploaded on 06/01/2023" (SRO Ex. 1).

The district requests that the additional evidence be excluded, arguing that the parent could have obtained this information prior to the impartial hearing but declined to do so and that because the document is testimonial in nature and not subject to cross-examination it is highly prejudicial.  However, the district does not dispute the validity of the information presented by the additional evidence.  In this instance, though the parent could have obtained the proposed additional evidence prior to the hearing or presented other information, in this instance the additional evidence directly relates to whether the parent timely sent a June 1 letter, a question that should not be so difficult to answer such that neither party appears willing to come forward with documentation or testimony to establish this as a matter of fact.  As the email thread presented by the parent on appeal is relevant to establishing a fact that should have been affirmatively established during the hearing, it is necessary to render a decision in this matter.  Based on the foregoing, as a matter within my discretion I accept and consider the parent's additional evidence on appeal, and shall refer to it as "SRO Exhibit 1" (SRO Ex. 1).

B. June 1 Deadline

I turn now to the issue of whether the IHO correctly determined that the June 1 defense was adequately raised and, if so, whether there is sufficient evidence to find that the parent provided notice of her request for equitable services to the district prior to June 1, 2023.

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088).  The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing services special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[7]  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).

While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver.  This is due, in part, because the district is required to navigate requirements that are in tension with one another.  On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services.  In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]).  Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]).  Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.

Here, the IHO correctly determined that the June 1 defense was adequately raised.  The district referenced the defense prior to the impartial hearing and asserted it during its written opening statement and oral closing argument at the hearing (IHO Decision at p. 7; see Tr. pp. 30-31; Dist. Ex. 8 at pp. 2-3).  The district had also raised it as an affirmative defense in its response to the due process complaint notice (Dist. Response to Due Proc. Compl. Not. at p. 1).

Further, the hearing record is devoid of any evidence that would lead the undersigned to conclude that the district waived its defense of the June 1 deadline.  The parent alleges that the development of an IESP in January 2024 was a waiver of the June 1 defense for the 2023-24 school year and that prior SRO decisions support that the development of an IESP coupled with evidence of a prior written notice was a wavier of the June 1 defense (citing to Application of a Student with a Disability, Appeal No. 24-404 and Application of a Student with a Disability, Appeal No. 24-436).  This argument is misplaced.   In Application of a Student with a Disability, Appeal No. 24-404, the SRO held that the creation of an IESP by the district in April 2024 for the 2023-24 school year was not an implied waiver of the June 1 defense (Application of a Student with a Disability, Appeal No. 24-404 at p. 11).  That case did not address a prior written notice (see Application of a Student with a Disability, Appeal No. 24-404).  In Application of a Student with a Disability, Appeal No. 24-436, the SRO held that the prior written notice sent in December 2023 explicitly stated that the December 2023 IESP was developed because the parent had indicated that she would be placing the student in a private school at her expense and was requesting equitable services, and, more to the point, the district indicated that the IESP would be implemented in December 2023, which was found to be an implied waiver of the June 1 defense (Application of a Student with a Disability, Appeal No. 24-436 at p. 13).

In this case, the district's SESIS log indicates a prior written notice was sent to the parent on January 19, 2024; however, there was no copy of the prior written notice in the hearing record, and review of the January 2024 IESP does not indicate whether it was created because the parent requested services to be provided to the student at the nonpublic school or whether it was created pursuant to the district's annual review obligation to develop IESPs for students with disabilities who are State residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school (see Dist. Ex. 2).  Therefore, as the evidence suggests an effort by the district to comply with its annual review requirement, not a clear and unmistakable waiver of the June 1 requirement based on the hearing record, the evidence leads to the conclusion that the district did not waive its June 1 defense based on its actions in developing an IESP for the student in January 2024.

In this instance, the hearing record does include a district form, signed by the parent on May 24, 2023, which expressed the parent's intent to place the student in a nonpublic school and indicated she wanted the student to continue receiving special education services at the nonpublic school for the 2023-24 school year (Parent Ex. G).  The letter also noted that the parent had not received notice the district would be providing service providers for the student, that the parent was in the process of searching for her own providers to deliver the student's services, and that if the district did not provide service providers, the parent would request district funding for the providers she was able to secure (id.).

The district maintains that it never received the parent's June 1 letter.  The IHO determined that although the parent provided the June 1 letter itself as evidence, there was no further documentary evidence provided to show that the actual notice was timely sent to the district (IHO Decision at p. 8).  The IHO found that the testimony of the educational director of Kids Further (educational director), who testified that Kids Further confirmed with the parent that a proper June 1 notice was sent before Kids Further provided services, was double hearsay and insufficient (id.).  In addition, the IHO determined that a review of the district's SESIS event log proved that the parent had not provided the district with a June 1 notice for the 2023-24 school year (id.).  The IHO noted that that June 1 entries were in the SESIS log for the 2023-24 and 2024-25 school years and looked very similar, except for "(SY 2024-2025)" which was noted in the 2024-25 entry, but no such notation was added to the 2023-24 school year (id. at p. 8 n. 41).  The IHO further noted "[a]lbeit testimonial," the district representative "explained that the added notation of a school year [wa]s the [SESIS] system's way of notating that an actual notice was received and ha[d] been "attached" to the logs itself for that particular entry" and that "[i]f no such school year notation [wa]s made on a June 1's entry it mean[t] that there ha[d] been no notice received and therefore attached to the entry" (id.).  The parent argues on appeal that accepting the district representative's "unsubstantiated statements" was improper, as she was not presented as a witness nor did she affirm under oath that that was the district's standard protocol for June 1 notice documents, or that even if such a protocol existed that the individual who entered the information on June 1, 2023 was following that protocol.[8]

Initially, the district's SESIS event log, independent of the representation made by district counsel, does not establish that a June 1 letter was not received by the district on June 1, 2023 (Dist. Ex. 6).  The SESIS event log contains an entry for June 1, 2023, which indicates a document identified as "Parent Notice of Intent/Parentally Placed" was "changed from draft to final" (id. at p. 3).  An entry for June 14, 2024 indicates a document identified as "Parent Notice of Intent/Parentally Placed (SY 2024-2025)" was "changed from draft to final" (id. at p. 1).  The document itself does not provide a method for determining any difference in the meaning of these two entries (see Dist. Ex. 6).

In the district's closing statement, the district representative asserted that the event log showed receipt of a June 1 letter for the 2024-25 school year, but not for the 2023-24 school year (Tr. pp. 30-31).  The IHO asked the district representative about the notation for June 1, 2023, at which point the district representative explained that having the parenthetical notation for the school year meant that the district received a document for that school year and for the 2023-24 school year:

There is no entry. Instead, it's - - if you go to the separate page, it's just showing - - that's just saying that there's a parenthetical notice of intent and that they send it out.  And there - - it's not actually a document that's uploaded to the system.

(Tr. pp. 34-35).

The IHO then appeared to accept this as an acceptable explanation for the notation (Tr. p. 35).  In its closing statement, the parent asserted that the event log "clearly state[d] that the [d]istrict was in receipt of the letter" arguing that there was "no notion that the parent did not submit the June 1st letter timely through the [district's] own evidence" (Tr. p. 35).

As the hearing record lacks specific details as to the delivery of the June 1 letter to the district and the parties disagreed as to the meaning of the entries included in the district's event log, it would have been prudent to have obtained either documentary or testimonial evidence at the hearing level as to what transpired.  In particular, although the district would not be expected to prove a negative, the district could have provided explanation through documentation or testimony as to why an entry was created in the district's event log on June 1, 2023.  Even accepting the district representative's statements, they do no explain what occurred that would have triggered the creation of an entry in the district's event log on June 1, 2023, other than the submission of a June 1 letter by the parent.

Accordingly, although the parties should have obtained and provided information that could concretely establish whether or not the parent sent a June 1 letter to the district on or before June 1, 2023 at the hearing, as discussed above, it is necessary to accept the additional information provided by the parent on appeal to make that determination.  Based on a review of the March 6, 2025 email correspondence between the parent and a member of the district's CSE support team, the district conveyed to the parent that a June 1 letter was "uploaded on 06/01/2023" (see SRO Ex. 1).  The district did not substantively respond to the additional evidence submitted by the parent, nor did the district offer an explanation as to why a district employee would indicate that a June 1 request was received by the district for the 2023-24 school year or how such a statement would not have been in direct conflict with the statement made by the district representative during the hearing.  Accordingly, the hearing record, with the additional evidence, leads to the determination in this instance that the parent sent a request for services prior to June 1, 2023 and the IHO's determination to the contrary must be reversed.

C. Equitable Considerations – Excessive Costs

As noted above, the IHO's determination that the SETSS provided to the student by Kids Further during the 2023-24 school year were appropriate has not been challenged on appeal and is final and binding on the parties.  Turning to equitable considerations, the parent appeals from the IHO's alternative finding that she would have reduced the rate for SETSS from $218 per hour to $175 per hour.

Under the Burlington/Carter framework, the final criterion for an award of funding is that the parents' claim must be supported by equitable considerations.  With respect to equitable considerations, the IDEA provides that funding 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"]).  Among the factors that may warrant a reduction in funding 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 rate argument requires, at a minimum, evidence of not only the rate charged for the private services, but evidence of reasonable market rates for the same or similar services.

The IHO determined that there was no other evidence or claim made by the district asserting or suggesting that the parent failed to cooperate with the district or that the parent interfered in any manner with its obligation to provide the student with a FAPE on an equitable basis for the 2023-24 school year (IHO Decision at p. 10).  However, the IHO determined that the parent's requested rate for SETSS needed to be reduced and that $175.00 per hour for SETSS was an appropriate rate (id. at pp. 10-11).

Here, as argued by the parent in her request for review, the IHO reduced the parent's requested rate without an evidentiary basis.  The IHO noted that Kids Further charged $218.00 per hour for SETSS, the provider was paid $150.00 per hour for their services, and, according to the testimony of the Kids Further educational director, the rate included one-on-one supervision, educational resources and support, professional development and materials, administrative costs, and overhead costs (IHO Decision at p. 10; see Tr. p. 26; Parent Ex. I).  The IHO found that the hearing record was devoid of credible evidence from either party proving what constituted a reasonable rate for services or what the market rate for SETSS was, and, moreover, the district took no action concerning the student to implement the services or mitigate its monetary exposure concerning an enhanced rate despite the parent's request for services (IHO Decision at p. 11).  The IHO determined that considering the record as a whole, the rate charged by Kids Further was unreasonable and must be reduced to $175.00 per hour (id.).  The IHO did not substantiate her reasoning as to how she computed $175.00 per hour as a reasonable rate for SETSS (id. at pp. 10-11).  The parent argues on appeal that the district did not sufficiently challenge the reasonableness of the rate for SETSS charged by Kids Further.  The district argues in its answer to uphold the IHO's reduction.

During the hearing, in support of its argument for a reduction of the contracted for rate, the district submitted an October 2023 American Institutes for Research (AIR) report, a July 25, 2025 Related Services - Independent Provider Rate Schedule, and a tuition rate study for the 2023-24 school year; however, the IHO only accepted the  July 25, 2025 rate schedule into evidence after determining that the other two documents were not relevant (Tr. pp. 4-10).  While I may not agree with the IHO's determination that the evidence submitted by the district was not relevant, the district has not appealed from this determination or submitted the documents on appeal as additional evidence.  As the IHO's finding related to rate was arbitrary, in that it did not identify evidence as a basis for the reduction, and as the district has abandoned its arguments related to the AIR report, the only arguably reliable evidence of a rate for the SETSS delivered to the student is the parent's contract with Kids Further, indicating a contracted for rate of $218.00 per hour for SETSS, and the testimony of the educational director at Kids Further, who testified that Kids Further charged $218.00 per hour for SETSS which included "one-on-one supervision, educational resources and support, professional development and materials, administrative costs and overhead costs" (Parent Exs. E; I ¶8).  The educational director also testified that the student's provider was a bilingual provider and she was paid $150.00 per hour out of the $218.00 per hour charged to the parent, nearly 69 percent of the total cost (Tr. p. 26).[9]

Accordingly, the district has not advanced a sufficient challenge to the rate of $218 for SETSS charged by Kids Further and the IHO erred by reducing the amount awarded based on equitable considerations, therefore, the parent is entitled to reimbursement at the contracted for rate.

C. Compensatory Education

Lastly, the parent argues the IHO erred by not separately considering whether compensatory speech-language therapy services were warranted.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).  The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]).  Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).

In this case, the parent's due process complaint notice raised the matter of compensatory education as relief "for any mandated services not provided" (Parent Ex. A at p. 2).  The parties do not dispute that the student was entitled to speech-language therapy services as recommended in the January 17, 2024 IESP (see Parent Ex. A at pp. 1-2; Dist. Ex. 2 at p. 8).  As it was determined that the parent sent sufficient notice and request for services on an equitable basis prior to June 1, 2023, there is no dispute that the district did not deliver services to the student to which the student was entitled to during the 2023-24 school year.

According to the contract between the parent and Kids Further, Kids Further was only contracted to provided SETSS during the 2023-24 school year (Parent Ex. E at p. 1).  There is no further evidence concerning the parent's efforts to obtain private speech-language therapy for the student.  The parent's due process complaint notice indicated that the parent was requesting, as relief, funding for speech-language therapy at an enhanced rate set by "the provider" (Parent Ex. A at p. 2).  Therefore, under the particular circumstances of this matter where the parent engaged in self-help and unilaterally obtained private services for the student, I find no basis for an award of compensatory education to, in effect, remediate gaps in the unilateral programming arranged for by the parent, especially absent specific evidence regarding any difficulties she encountered obtaining the services (see generally Application of a Student with a Disability, Appeal No. 24, 625; Application of the Dep't of Educ., Appeal No. 22-139).

VII. Conclusion

For the reasons described above, the parent timely sent a June 1 letter prior to June 1, 2023 requesting that the district provide services to the student on an equitable basis and the IHO erred by dismissing this matter on that basis.  Since equitable factors did not warrant a denial or reduction of funding for SETSS, the parent is entitled to funding for the services actually provided by Kids Further for the 2023-24 school year, at the contracted rate of $218 per hour, for five hours per week.  However, the parent will not be awarded compensatory education for a gap in the self-help remedy she arranged for the student.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated February 11, 2025 is modified by reversing those portions which found that the student was not entitled to equitable services for the 2023-24 school year and which denied the parent's request for the district to fund the unilaterally-obtained SETSS delivered by Kids Further during the 2023-24 school year in its entirety; and

IT IS FURTHER ORDERED that the district shall fund the costs of five hours per week of SETSS delivered to the student by Kids Further during the 2023-24 school year at the contracted for rate of $218 per hour, upon proof of delivery of services.