I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's home-based supplemental related services for the 12-month, 2024-25 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student in this matter has been the subject of prior State-level administrative appeals (see Application of a Student with a Disability, Appeal No. 17-047; Application of a Student with a Disability, Appeal No. 14-071).  The student has also been the subject of a federal appeal from a State-level administrative determination (L.K. v New York City Dep't. of Educ., 2016 WL 899321 [S.D.N.Y. Mar. 1, 2016], aff'd in part & rem'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]).

The student has received diagnoses of autism spectrum disorder with intellectual and language impairment (severe) and apraxia of speech (Parent Exs. E at pp. 4, 7; FF ¶ 3; Dist. Ex. 1 at p. 24).  The student has attended Manhattan Children's Center (MCC) since September 2013 (see Parent Exs. E at p. 2; N at p. 1; Dist. Ex. 1 at p. 1).[1]

On April 8, 2024, the parents entered into an enrollment contract with MCC for the student's attendance for the 12-month, 2024-25 school year (see Parent Ex. I).

In an email to the district dated June 5, 2024, the parents indicated they had not received any information regarding a CSE meeting for their son for the 2024-25 school year and that the student's IEP would expire on June 15, 2024 (Parent Ex. D).

Next, in another email to the district dated June 14, 2024, the parents indicated that a CSE meeting had not yet been held for the 2024-25 school year (Parent Ex. C at p. 1).  They stated that due to the "absence of an appropriate and timely program and placement" it was their intent to continue to place the student at MCC for the 12-month, 2024-25 school year (id.).  Additionally, the parents stated that they would seek reimbursement/funding for the tuition and costs at MCC, up to five 45-minute sessions per week of Prompts for Restructuring Oral Muscular Phonetic Targets (PROMPT) speech-language therapy, up to two hours per week of occupational therapy (OT), up to 29 hours per week of home-based applied behavior analysis (ABA) services, up to two hours per week of ABA supervision, and transportation costs to and from MCC (id.).

On June 24, 2024, the district sent the parents a prior written notice with respect to the recommendation for special education programs and services contained in a June 15, 2023 IEP (Dist. Ex. 4 at p. 1).  Also dated June 24, 2024 and included with the prior written notice was a school location letter that indicated the location of the assigned school at which the June 2023 IEP would be implemented (id. at p. 6).

On July 8, 2024, the district notified the parents of a CSE meeting scheduled for July 10, 2024 (Parent Ex. E).  Upon receiving notice of the upcoming CSE meeting, the parents sent the district a neuropsychological evaluation of the student that was conducted in March and July 2020 (id.).

Thereafter, on July 10, 2024, a CSE convened and found the student eligible for special education as a student with autism (Dist. Ex. 1 at pp. 1, 61).[2]  The CSE recommended that the student receive programming on a 12-month basis and attend a 6:1+1 special class in a specialized district school together with three periods per week of adapted physical education (id. at pp. 54, 56, 62).  The July 2024 CSE recommended related services that consisted of one 30-minute session per week of individual counseling; one 30-minute session per week of group counseling; three 45-minute sessions per week of individual OT; two 45-minute sessions per week of group OT; two 45-minute sessions per week of individual physical therapy (PT); three 45-minute sessions per week of individual speech-language therapy; and two 45-minute sessions per week of group speech-language therapy (id. at pp. 55, 62).  In addition, the July 2024 CSE recommended group paraprofessional services for behavioral support, and a touch screen tablet with application of Qui Pro Quo for the student's use both at school and at home (id. at p. 56).  The student was also recommended to participate in the New York State alternate assessment (id. at pp. 59, 63).  Services also included one 60-minute session per month of parent counseling and training (id. at p. 55).[3]

In a July 23, 2024 email to the district, the parents expressed their disagreement with the recommendations in the July 2024 IEP as well as with the assigned school placement, and of their intent to continue the student's placement at MCC for the 2024-25 school year and seek reimbursement/funding for the costs of the tuition and transportation costs to and from MCC, as well as supplemental home-based services consisting of up to five 45-minute sessions per week of PROMPT speech-language therapy, up to two hours per week of OT, up to 29 hours per week of home-based ABA services, and up to two hours per week of ABA supervision (see Parent Ex. F).[4]

A. Due Process Complaint Notices

In a due process complaint notice dated July 1, 2024, and an amended due process complaint notice dated October 10, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see generally Parent Exs. A-B).

In their July 1, 2024 due process complaint notice, the parents requested pendency based upon the last agreed upon IEP dated March 20, 2013 together with the SRO's decision in Application of a Student with a Disability, Appeal No. 14-071 (Parent Ex. B at p. 2).  According to the parents, pendency included placement and tuition costs at MCC together with 25 hours per week of special education itinerant teacher (SEIT) services, four 45-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT (id.).[5]  On July 9, 2024, the district agreed to implement the parents' requested pendency (see July 9, 2024 Pendency Impl. Form).  Within the October 10, 2024 amended due process complaint notice, the parents requested pendency pursuant to a prior unappealed IHO decision dated August 6, 2024, which included placement and tuition costs at MCC; 29 hours per week of home and community based ABA services; five 45-minute sessions per week of 1:1 PROMPT speech-language therapy; six 60-minute sessions per week of 1:1 OT; and two hours per week of Board Certified Behavior Analyst (BCBA) supervision (Parent Ex. A at p. 2).  On November 13, 2024, the district agreed with the parents' requested pendency contained in the October 10, 2024 amended due process complaint notice (Nov. 13, 2024 Pendency Impl. Form).

As for their allegations that the district failed to offer the student a FAPE "both procedurally and substantively," the parents asserted that the district: failed to timely conduct a CSE meeting for the 2024-25 school year; predetermined the recommended program and assigned school prior to development of an IEP; failed to conduct a functional behavioral assessment (FBA); failed to develop a behavioral intervention plan (BIP); failed to obtain and consider sufficient evaluative information prior to the CSE meeting; precluded the parents from meaningful participation in the CSE process; failed to consider private evaluations of the student; failed to recommend individual parent counseling and training; failed to recommend individual instruction for the student; failed to recommend "adequate levels and frequencies of related services"; failed to recommend extended school year (ESY) services; failed to develop measurable annual goals; failed to discuss and recommend services for the generalization of the student's skills from school to home; failed to develop "appropriate vocational assessments and transition planning and training"; and failed to recommend ABA services for the student (Parent Ex. A at pp. 3-12).

Next, the parents claimed that the unilateral placement was appropriate for the student to obtain meaningful educational benefits and that equitable considerations favored an award of tuition reimbursement (Parent Ex. A at p. 13).

As relief, the parents requested funding for the tuition and costs at MCC; five 45-minute sessions per week of PROMPT speech-language therapy; two 60-minute sessions per week of OT; 29 hours per week of home and community-based ABA services; two hours per week of ABA supervision; and transportation costs (Parent Ex. A at p. 14).[6]

B. Impartial Hearing Officer Decision

After a prehearing conference on August 6, 2024 and status conferences on September 9 and October 10, 2024, (see Aug. 6, 2024 Tr. pp. 1-7; Sept. 9, 2024 Tr. pp. 8-17; Oct. 10, 2024 Tr. pp. 18-27), an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 22, 2024 and concluded on January 16, 2025 after three days of proceedings (Tr. pp. 1-124).[7]  In a decision dated February 25, 2025, the IHO found that the district failed to meet its burden to prove that it offered the student a FAPE for the 2024-25 school year and that the parents met their burden to show that the unilateral placement met the student's needs, awarded funding of the MCC tuition for the 2024-25 school year, but denied the parents' request for home-based services (IHO Decision at pp. 3-9).

In connection with finding that the district failed to meet its burden, the IHO determined that, in addition to the untimely IEP, the district failed to call any witnesses to "provide a cogent explanation as to why [the] [d]istrict recommended what was contained in the July 2024 IEP" (IHO Decision at p. 4).  With respect to the unilateral placement, the IHO found that, based upon the credible testimony of the executive director of education at MCC (MCC director), the program provided the student with individual support and ABA services which the student needed to make progress behaviorally and academically (id. at p. 5).

The IHO then addressed equitable considerations and found that the district did not identify issues with MCC but argued that the home-based services obtained for the student were "beyond [the] [d]istrict's obligations" and, therefore, it should not be required to fund the same (IHO Decision at pp. 6-7).  The IHO agreed that the unilateral services provided to the student at home "exceed[ed] what would be required for the provision of FAPE" and further that the services were "to generalize skills across different environments and address needs beyond [the] [s]tudent's academic goals" (id. at p. 7).  The IHO found that the student's needs were met through the nonpublic school program and there was no basis for the district to fund the additional services as part of its offer of a FAPE to the student (id.).  Additionally, the IHO found that the student's speech-language therapy and OT needs were met by MCC and that, although the home services could be beneficial, they exceeded that which the district was required to fund (id.).  Moreover, the IHO found no contractual obligation on the part of the parents for the home-based ABA services, OT, or speech-language therapy, which he found would further preclude an award of funding for the services (id. at pp. 7-8).

As relief, the IHO ordered the district to reimburse the parents for the tuition paid to MCC and to directly fund any tuition not already paid through pendency for the student's attendance at MCC for the 12-month 2024-25 school year (IHO Decision at p. 9).

IV. Appeal for State-Level Review

The parents' appeal is limited to the IHO's denial of reimbursement/direct funding for the "supplemental home-based" ABA services, speech-language therapy, and OT services provided to the student for the 2024-25 school year.  The parents argue that the student requires the supplemental services in order to receive a FAPE and that they met their burden to prove that the supplemental services were "reasonably calculated to enable [the student] to make meaningful progress."  Next, the parents argue that the IHO failed to properly evaluate equitable considerations with respect to the supplemental services.  They argue that the IHO failed to assess the reasonableness of the rates charged by each of the providers.  Additionally, the parents argue that there is no requirement for a formal written contract for the supplemental services.  Further, the parents request that additional evidence be entered into the hearing record.[8]  As relief, the parents request reimbursement for the student's home-based ABA services, PROMPT speech-language therapy, and OT services.

In an answer, the district generally denies the material allegations contained in the request for review.  The district argues that the parents are not entitled to reimbursement for the home-based services because the services served to maximize the student's potential, were for the purpose of generalization, and exceeded the level of services required for a FAPE.[9]  Additionally, the district argues that the parents did not demonstrate a financial obligation for the services.  Ultimately, the district requests that the parents' request for relief be denied.[10]

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]).[11]

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

A. Scope of Review

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"]).  The Second Circuit has held that courts assessing the propriety of a unilateral placement must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

As noted above, the IHO determined that MCC was an appropriate unilateral placement, and then separately considered the parents' request for funding for the student's supplemental home-based services as an equitable consideration.  To be sure, the parents' unilateral placement in this matter consisted of the student's enrollment at MCC along with the parents' unilaterally obtained home-based services.

A parent may obtain outside services for a student in addition to a private school placement as part of a unilateral placement (see C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838-39 [2d Cir. 2014] [finding the unilateral placement appropriate because, among other reasons, parents need not show that a "'private placement furnishes every special service necessary'" and the parents had privately secured the required related services that the unilateral placement did not provide], quoting Frank G., 459 F.3d at 365).

While the IHO did not consider the parents' supplemental home-based services when determining whether the parents' unilateral placement provided specially designed instruction to address the student's unique needs, neither party has appealed from the IHO's determination that the parents met their Prong II burden, under the Burlington/Carter three-pronged analysis.  In their request for review, the parents assert that the IHO erred in finding that equitable considerations warranted a denial of all relief.  The district argues that the IHO correctly determined that the parents' supplemental home-based program was duplicative of the program provided by MCC, was for the purposes of maximizing the student's potential and for the generalization of skills, and further, that the parents' program exceeded the requirements of a FAPE to the student.  Thus, whether or not the parents' unilateral placement was appropriate will not be addressed further, and the remaining issues will be addressed as equitable considerations.

B. Equitable Considerations

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

1. Excessiveness of Services and Generalization of Skills

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding the reasonableness of the costs of the program or whether any segregable costs exceeded the level that the student required to receive a FAPE (see L.K.., 2016 WL 899321, at *7).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; R. F. v. New York City Dep't of Educ., 2025 WL 2695690, at *7-*10 [S.D.N.Y. Sept. 22, 2025]; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).

Additionally, as the IHO noted in discussing generalization of skills, courts have indicated that school districts are not required, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it is determined that the student is otherwise likely to make progress, at least in the classroom setting (see, e.g., R. F., 2025 WL 2695690, at *8-*9 [collecting cases]; F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K., 2016 WL 899321, at *8-*10; Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; see also IHO Decision at p. 6).

The parents argue that they met their burden to show that the student's program and placement at MCC, combined with his supplemental ABA services, PROMPT speech-language therapy, and OT were "reasonably calculated to enable him to make meaningful progress based on his needs and not regress."  The parents also claim that the IHO "improperly discounted and failed to effectively grapple with the professional opinions" of the parents' providers and improperly denied funding for the student's supplemental home-based services.  Although the IHO did not address the appropriateness of the home-based services in finding that the student's placement at MCC was appropriate, the IHO specifically noted that "it [wa]s undisputed that there [wa]s clearly a benefit to the work done with [the s]tudent outside of school" (IHO Decision at p. 7).

Additionally, review of the IHO's decision shows that he reviewed the testimony of the executive director of MCC, the testimony of the BCBA—whose team of five ABA providers delivered six-to-eight hours per week of afterschool ABA services on the weekends (BCBA 1)—and the testimony of the BCBA—whose team of three ABA providers delivered 23 hours per week of home-based ABA services (BCBA 2)—in concluding that the services provided at home exceeded what was required of the district for the provision of a FAPE to the student (IHO Decision at p. 7; see Nov. 22, 2024 Tr. p. 23; Parent Exs. AA ¶¶ 45-46; BB ¶ 13; CC ¶ 17).  Accordingly, the parents' assertion that the IHO failed to consider the home-based services and did not grapple with the evidence is not supported by a review of the decision.

Turning to the merits of the parents' dispute, the parents argue that the student requires supplemental home-based services in addition to the MCC program because the student continued to require a constant, structured, rigorous academic and social program both in school and afterschool in order to make meaningful progress and to maintain the skills he has acquired, and that generalization of skills was not the purpose of the home-based program.

In examining whether the supplemental home-based services constituted programming in excess of what was required to provide the student with a FAPE, the student's needs and programming at MCC during the 12-month, 2024-25 school year must be considered.

The July 2024 IEP included results from an August 2020 neuropsychological evaluation, a July 2023 through December 2023 educational progress report, a July 2023 through December 2023 OT progress report, and a July 2023 through December 2023 speech-language therapy progress report, and student and teacher vocational assessments dated July 10, 2024 (Parent Exs. N-P; Dist. Ex. 1 at p. 1; see Dist. Exs. 8-9).[12]

According to the July 2024 IEP and as reported in the neuropsychological evaluation, the student's cognitive functioning was unknown as he "c[ould not] fully participate in standardized testing"; however, observations of the student revealed "significant weaknesses in his attention, self-regulation, and behavioral functioning" (see Parent Ex. E at p. 9; Dist. Ex. 1 at p. 6).  The July 2024 IEP stated that the student's "significant weaknesses" in those areas "warrant[ed] continued highly specialized 1:1 supports," and that his higher-order language skills were measured at approximately a three-year-old age equivalent (Dist. Ex. 1 at pp. 4, 6).  The student was described as needing significant support in facilitating engagement and joint attention, but his language skills improved in familiar environments (id. at p. 3).

The student's academic skills included working on counting items, identifying numbers over 20, and using a digital clock to identify time (Dist. Ex. 1 at p. 3).  He demonstrated an understanding of math concepts such as "tallest" and "smallest" but struggled with 1:1 correspondence (id. at p. 5).  Additionally, he was learning to use a calculator for basic addition, to create sets of specified amounts, and to follow a schedule using the ChoiceWorks™ application (id. at pp. 15-16).  In reading, the student was learning to recognize simple sight words using the Edmark reading curriculum, to match words to pictures, and he could type letters that matched corresponding sounds using his augmentative and alternative communication (AAC) device (id. at p. 3).  According to the IEP, the student was able to type his name and multiple words when modeled for him, and he could trace letters (id.).

The student's adaptive skills were assessed to be within the extremely low range, with communication, community use, and self-care skills rated below the first percentile (Dist. Ex. 1 at p. 5).  Sometimes he could greet others, follow verbal directions and answer questions, read his name, answer simple questions about a story, and give a cashier the necessary amount of money in a store (id.).  With support, the student made simple meals, attended community activities, and completed self-care activities with assistance (id. at pp. 5-6).  The IEP indicated that the student exhibited "poor awareness of safety concerns overall" (id. at p. 6).  Further, the July 2024 IEP noted that the student participated in a school-based internship and was learning to complete tasks such as cleaning and using a dishwasher with prompts (id. at p. 18).

Behaviorally, MCC developed a BIP for the student that targeted "mouthing, physical stereotypy, and biting himself" which interfered with his classroom participation (Dist. Ex. 1 at p. 3).  A parent report incorporated in the IEP reflected that the student avoided eye contact, engaged in repetitive movements and self-stimulatory behaviors, demonstrated poor self-control, and was easily distracted (id. at p. 5).  According to the July 2024 IEP, he required consistent verbal, visual, and physical prompting/modeling to complete most tasks and had difficulty generalizing skills across different environments (id. at p. 3).  The IEP indicated that the student required high rates of continuous repetition and reinforcement and with that support, he had shown steady progress and a decrease in interfering behaviors (id.).

In connection with the student's speech-language impairment, he struggled with both expressive and receptive language skills, which negatively impacted his ability to express his frustrations and needs as well as his interactions with peers and adults (Dist. Ex. 1 at pp. 4, 6).  The student's speech was characterized by "markedly reduced" intelligibility, difficulty producing multisyllabic words, and inconsistent speech sound errors (id. at p. 13).  The student used a Speech Generating Device (SGD) to help convey messages more efficiently and he required prompts to use the device effectively (id. at p. 8).  The student worked on using functional phrases both vocally and with his AAC device (id. at p. 3).  Receptively, the student struggled to follow two-step directions when the distance between himself and the instructor increased (id.).

In terms of the student's social and physical development, the student was described as a "happy and sweet boy who [wa]s generally easygoing," who preferred to play alone and did not show interest in peers, although he had a desire to communicate (Dist. Ex. 1 at p. 4).  The student was noted to be sensitive to loud noises but enjoyed activities like playing on the iPad and swimming (id.).  OT sessions focused on the student's sensory self-regulation, self-management, and body awareness; his ability to follow a visual schedule; and self-care and activities of daily living (ADL) skills (id. at pp. 24-27).  In addition, the July 2024 IEP noted that the student was learning to engage in leisure activities and improve fine motor skills through tasks like typing and using a credit card (id. at pp. 24, 29).  His gross motor coordination was targeted through exercises and sports-based games to improve his strength and motor planning (id. at pp. 27-28).

The July 2024 IEP provided an extensive list of strategies and supports to address the student's management needs, including that he benefitted from a small, structured classroom environment that included collaboration and coordination across a transdisciplinary team to address his educational needs effectively (Dist. Ex. 1 at pp. 30-33).  He benefited from homogenous instructional grouping and breakout groups for small group or 1:1 instruction within the classroom to support his understanding of new and abstract material (id. at p. 31).  The IEP provided support for the student including additional time for completing assignments and assessments, along with extra wait time to process instructions (id.).  Instructional strategies such as chunking material into smaller steps, repeated readings, and familiarizing him with new vocabulary before lessons were reflected in the IEP (id.).  The July 2024 IEP described that the student benefitted from support for planning and producing written responses, including verbal discussions prior to writing, and the use of visual aids, graphic organizers, and checklists, assistance with note-taking, access to class notes, and "programmatically available technology" (id.).  Additionally, the student was noted to benefit from frequent opportunities for review and reinforcement of skills, structured and multisensory lessons, and the use of multisensory materials, i.e., charts, diagrams, and hands on learning (id.).  Additionally, the student's management needs described that he benefitted from regular check-ins with teachers to ensure understanding, to initiate tasks, and track assignment completion, explicit strategy instruction to support his executive functioning skills, and needed encouragement to ask for help and self-advocate academically (id. at p. 32).  Further, the July 2024 IEP included recommendations for support in the form of a positive reinforcement system to increase the student's engagement and participation in the classroom (id. at pp. 32-33).

At the time of the impartial hearing the student was in his twelfth year at MCC (Parent Ex. AA ¶ 8).  The MCC executive director testified that MCC was an independent special education school focused largely on the needs of students with autism and related disabilities in need of a highly individualized program of ABA (see Parent Exs. J; AA ¶¶ 1, 6).

For the 2024-25 school year, the student was in a class at MCC comprised of eight students, one lead teacher and six ABA instructors (see Tr. p. 35; Parent Ex. AA ¶¶ 9-10).  The components of the curricula included academic (reading, math, language arts, writing), social skills (attention to task, cooperative play, conversational units), verbal behavior (communication behavior, joint attention and perspective taking), self-management (functional daily-living skills); and community of reinforcers - an expanded community of interests (interests in age-appropriate leisure activities and hobbies) (Parent Ex. AA ¶ 13).  The student's program consisted of a six-hour day and provided five hours each day of 1:1 instruction, including groups where he required 1:1 instructional support from an ABA instructor or lead teacher (id. ¶ 9).  During lunch and leisure time within the classroom, the teacher or an instructor was assigned to the student and another student while they ate lunch and played a simple board game or engaged in individually selected leisure activities (id.).

According to the MCC executive director's testimony by affidavit, the student also received the related services of speech-language therapy, OT, adapted physical education, 1:1 instruction in a transdisciplinary group, and music therapy (Parent Ex. AA ¶¶ 14-18).  MCC also provided parent counseling and training to the parents (id. ¶ 19).  Specific to speech-language therapy, the student received three 30-minute individual sessions per week, one 30-minute group session per week, and one 30-minute session per week during lunch with 1:1 support from an ABA instructor in his classroom during groups (id. ¶ 14).  The student's speech-language therapy sessions addressed increasing his receptive, expressive, and pragmatic language needs (id.).  With regard to OT, the student received two individual 30-minute sessions per week, one 30-minute group session per week, and a lunch consultation one time per week to work on daily living skills with 1:1 support from an ABA instructor in his classroom during groups (id. ¶ 15).  OT sessions focused on improving the student's sensory processing, self-care skills, gross motor coordination, and fine motor precision (id.).  The weekly 60-minute transdisciplinary group was run collaboratively by a speech-language pathologist, an occupational therapist, and the classroom teacher, and focused on building the student's leisure skills, ability to transition and remain with the group to locations within the community, follow directions with prompting, build his ability to indicate preference and choice between activities, and increase his ability to participate in each activity when provided with faded prompting (id. ¶ 16).  According to the MCC executive director, this group was instrumental in building the skills the student needed as he approached adulthood including increasing his ability to remain with and participate in a group and increasing his functional communication skills to be able to indicate choice between activities with his AAC (id.).  Further, according to the MCC executive director's affidavit testimony, expanding the student's ability to participate in a group with less prompting was an essential skill identified in increasing his opportunities to access the least restrictive environment both within and outside of school (id.).

With regard to adapted physical education, testimony by the MCC executive director indicated that the student participated twice weekly for 30-minutes with an adapted physical education teacher, his classmates, and class faculty members (Parent Ex. AA ¶ 17).  The 30-minute sessions were designed to help the student improve his gross motor skills to help him build habits for a safe, healthy, and active lifestyle (id.).

Both MCC and the home-based providers were working with the student on goals related to increasing his independence with activities of daily living, self-care, behavior regulation, and language/functional communication skills (compare Parent Ex. AA ¶¶ 12-13, with Tr. pp. 21, 24, 27-28, and Parent Ex. BB ¶¶ 15, 18).  The MCC executive director testified that the MCC team collaborated with the student's family and home-based providers to discuss "progress, balancing of goals, specific prompt levels and materials to consistently provide prompting/cueing of responses for skills [the student] [wa]s learning across environments" (Tr. p. 45; Parent Ex. AA ¶ 44).  She testified that staff collaborated on the use of the "same prompts for self-care tasks, collaborated on reading targets[,] and community-based safety such as [the student's] progress attending while crossing the street" (Parent Ex. AA ¶ 44).

Academically, MCC focused on functional academic skills and increasing the student's literacy skills (Parent Ex. AA ¶¶ 13, 25).  Similar to the academic instruction at MCC (Dist. Ex. 1 at pp. 3-5), the home-based ABA services in reading focused on responding to sight words, comprehension skills, picture and phrase matching, and reading phrases (compare Parent Ex. AA ¶ 25, with Parent Ex. S at p. 2).[13]  At MCC, the student was learning math concepts of sorting and counting with on-to-one correspondence, completing addition problems with a calculator, calculating prices from a restaurant menu to whole dollar values, and making purchases in the community (Parent Ex. AA ¶¶ 27).  These similar math concepts of addition were also taught during the home-based ABA academic program (Parent Exs. S at pp. 2-3; CC ¶ 32).  Both at MCC and during the home-based academic ABA instruction, the student worked on his writing skills by typing words, his name, and personal information for online forms (compare Parent Ex. AA ¶¶ 26, 42, with Parent Ex. CC ¶¶ 29, 32).

Another focus at both MCC and with the home-based ABA services was teaching the student similar self-care skills (compare Parent Ex. AA ¶ 31, with Parent Exs. S at pp. 4-5; BB ¶ 22; CC ¶ 29).  Both at MCC and during the home-based ABA services, the student's self-care goals focused on hygiene skills of face washing, brushing his teeth, and shaving (compare Parent Ex. AA ¶ 31, with Parent Exs. S at p. 4; BB ¶¶ 22, 25; CC ¶ 31).  Additionally, the student was learning to combine his self-care skills into a routine (compare Parent Ex. AA ¶ 32, with Parent Ex. S at p. 4).  In connection with household tasks, at MCC and with the home-based ABA services, the student was learning to clean a table, "in both contrived and natural settings," prepare meals and snacks for himself, and clean his dishes after snacks and meals (compare Parent Ex. AA ¶ 32, with Parent BB ¶¶ 22, 24).

The student's behaviors interfered with his ability to participate in the classroom and community (Parent Ex. AA ¶ 21).  MCC conducted an FBA and developed a BIP to implement instructional strategies to replace the student's behaviors of aggression, mouthing, and self-injury (id. ¶¶ 20-23).  The home-based ABA providers also collected data and used strategies to address the student's self-injurious behaviors, aggression, and self-stimulatory/sensory behaviors at home and in the community (Parent Exs. S at p. 5; BB ¶ 20; CC ¶ 42).

MCC focused on improving the student's use of pragmatic language to request assistance and communicate his needs and wants (Parent Ex. AA ¶¶ 37-38).  Similar pragmatic language skills were taught during the home-based ABA services including the opportunity for the student to request breaks, go for a walk, and use the bathroom (compare Parent Ex. AA ¶¶ 28, 37-38, with Parent Exs. S at pp. 3-4; CC ¶¶ 29, 31).  At MCC as well as with the home-based ABA services, the student worked to build skills with his AAC device (compare Parent Ex. AA ¶ 28, with Parent Exs. S at p. 4; CC ¶ 32).  Additionally, the student learned the same self-management skills, i.e., leisure skills, at MCC and during his home-based ABA services (compare Parent Ex. AA ¶ 29, with Parent Exs. S at p. 4; CC ¶ 33).  These included learning to work with others (peers and siblings), choosing a game, or selecting a video to watch (compare Parent Ex. AA ¶¶ 29, 39, with Parent Exs. S at p. 4; CC ¶ 33).

At MCC, the student participated in a weekly "transdisciplinary group" which directly addressed community-based skills with the student (Parent Ex. AA ¶ 16; see Dist. Ex. 1 at pp. 21, 24).  Community based skills practiced at MCC included walking, staying with the group, paying attention to street signs and traffic signals, and safely crossing the street (Parent Ex. AA ¶¶ 29, 33).  These same community skills were a focus of the home-based ABA services due to the student's lack of safety awareness in the community (Parent Exs. S at pp. 4-5; CC ¶ 27).

Additionally, MCC offered parent counseling and training to the student's parents to "ensure carryover and consistency between home and school" (Parent Ex. AA ¶ 19; see Dist. Ex. 1 at p. 15).  At MCC, the parents were able to participate in individualized training, clinical team meetings every 10 weeks to review the student's progress and behaviors at home and school, and have daily communication with the school (Parent Ex. AA ¶¶ 19, 44).  According to the July 2024 IEP, MCC conducted home visits twice per year and a Parent Education Workshop Series once per month (Dist. Ex. 1 at p. 15).  This same carryover of skills between home and school were taught to the parents during the home-based ABA services (Parent Ex. BB ¶¶ 23, 28).

Regarding the other home-based services, the student's communication skills were similarly addressed with speech-language therapy at MCC and with the home-based speech-language therapy (compare Parent Ex. AA ¶ 34, with Parent Exs. T; DD).  The speech-language therapy services at MCC focused on improving the student's verbal approximations and use of an ACC device and TouchChat™ to increase his receptive, expressive, "operational competence, strategic competence, pragmatic, play and motor speech skills" (Parent Ex. AA ¶¶ 34-38).  One of the home-based ABA providers was also working with the student to use the TouchChat™ program on his ACC device to communicate his wants and needs (compare Parent Exs. P at p. 2; AA ¶ 34, with Parent Exs. S at p. 4; T at p. 1; DD ¶¶ 33-34).  The home-based speech-language pathologists use the PROMPT method during therapy, which was not a methodology offered at MCC (Tr. pp. 108-09).[14]  However, the speech-language therapy goals the student was working on with the home-based providers were similar to what the student was working on at MCC (compare Parent Ex. AA ¶¶ 14, 28, 34-38, with Parent Exs. T; DD ¶¶ 30, 31).

In connection with OT services, the student's OT goals at MCC for the 2024-25 school year focused on improving sensory processing, self-care skills, gross motor coordination, and fine motor precision (Parent Ex. AA ¶ 39).  This included teaching the student to take a sensory break when notified by a timer on his iPad, selecting activities on his iPad, avoiding obstacles, and maintaining personal space around others (id.).  Similar goals were developed for the student during the home-based OT services (compare Parent Ex. AA ¶ 39, with Parent Ex. EE ¶ 11).  Both MCC and the home-based OT services focused on increasing the student's independence with activities of daily living and improving his coordination and strength through exercise (compare Parent Ex. AA ¶¶ 30, 40-41, with Parent Ex. EE ¶¶ 7, 17, 19).[15]

At MCC, the student's progress was monitored by the school on a monthly basis and with the parents every ten 10 weeks or sooner if requested (Parent Ex. AA ¶¶ 19, 44).  In terms of the student's progress at MCC, behaviorally the student displayed challenging behaviors including aggression, mouthing, and self-injury (biting, head-hitting), with high-risk potential for injury, as documented by the Self-Injury Trauma Scale (id. ¶¶ 20, 21).  However, the MCC director testified that all three targeted behaviors (mouthing/spitting, aggression, self-injury) had decreased during the school year but the MCC director testified that the student's progress was highly contingent on dense reinforcement, systematic prompting, and close behavioral management (id. ¶¶ 20, 22-24).

Academically, according to the testimony of the MCC executive director, the student made tangible progress in functional academic skills, particularly in the areas of digital literacy and community-based applications of math and reading, but he continued to have a significant need for individualized support and prompting (see Parent Ex. AA ¶¶ 24- 25).  The student's functional mathematics programming focused on sorting/counting, usage of a calculator for sums up to 40, identifying/addition of menu prices, and applying these skills during real-life community shopping with a blend of independence and prompting (id. ¶ 27).  In addition, the student was learning to follow an electronic schedule using ChoiceWorks™ and respond to prompts to gather needed materials for various activities (id.).

With regard to expanding the student's verbal behavior and social communication skills, the student demonstrated steady communication growth via his AAC device and therapy across multiple domains, showing increased independence but was still dependent on structured practice, adult modeling, and prompting, especially for more nuanced or socially contextualized communication (Parent Ex. AA ¶¶ 28, 34-37).  In social skills groups, the student was learning to greet peers with his AAC device, indicate game/activity preference, and participate in group activities with reduced support, but he still required structured facilitation (id.).

In connection with pragmatic language and with respect to modeling and prompting, the student's goals targeted improving his ability to independently use his pragmatic language for a variety of communicative functions, including requesting assistance, directing the actions of others (an area of progress), and rejecting items, as well as increasing his self-advocacy skills, ability to respond to greetings and farewells, communicating his needs such as "bathroom," or "drink water," and requesting a highly desired object or activity (Parent Ex. AA ¶ 38).  The student required structured and facilitated opportunities to learn how to engage with peers (id. ¶ 28).  Group participation skills remained an area of need whereupon the student was learning to remain seated, follow instructions, and attend to group leaders, requiring 1:1 support and a reinforcement schedule (id. ¶ 29).  The student had made progress in group activities, including social studies/science groups focused on choice-making and budgeting, and community-based outings—demonstrating improved participation, waiting, and safety skills in the group by remaining with the group as they traveled to the store (id.).  In leisure activities, the student independently played digital games for up to 10 minutes which signaled improved self-management and leisure engagement (id.).

The MCC executive director's testimony during the impartial hearing indicated that the student had shown progress in group instruction by increasing his duration of sitting and tolerance for remaining in the group, even when faced with loud noises (Tr. p. 51).  He learned to request headphones when needed to help him stay in the group, and a schedule of reinforcement on a fixed interval had been established to motivate him to remain in the group (id.).  There had been some fading in the need for prompting the student to raise his hand and attend to the group, indicating gradual skill acquisition (id.).  The MCC executive director indicated the student was gaining those skills "slowly by—bit by bit," and noted that said progress was "great" (id.).  However, BCBA 1 testified that the student had not developed the prerequisite skills needed to learn novel skills in a group environment (Parent Ex. BB ¶ 29).  She noted that the student required 1:1 intervention to tolerate group settings during instruction, to sustain attention in a group setting and to exhibit behavioral self-regulation (id.).

Testimony by affidavit by the MCC executive director noted that, with regard to self-management skills, the student was working on independently completing multiple worksheets, following exercise schedules, and increasing engagement in a "tablet game" for greater durations of time (Parent Ex. AA ¶ 30).  With regard to self-care, the student was working on hygiene tasks (face washing using facial wipes, tooth brushing, shaving) with systematically faded prompts; at the time of the MCC director's testimony, the student demonstrated completed 60 percent of face-washing steps independently, and had increased independence with tooth brushing (especially rinsing, drying), and some shaving tasks (id. ¶¶ 31, 40).  The student could follow an electronic schedule for self-care routine tasks, retrieve needed items, and complete activities with verbal and gestural prompts (id. ¶ 31).  Progress was further noted with respect to the student's vocational and household skills (id. ¶ 32).  With regard to community-based and safety skills, the student made progress during community outings (id. ¶ 33).

Here, the program at MCC addressed the student's difficulties with ADL skills, self-care, behavior regulation, and language/functional communication skills and the evidence shows that the student made progress (Tr. pp. 21, 24, 27-28; Parent Ex. AA ¶¶ 12-13).  Additionally, the student presented with some behaviors that interfered with his learning, as discussed above, which MCC addressed by providing the student with an FBA and a BIP (Parent Exs. Q; AA ¶¶ 21-23).  Further, as part of his programming, MCC developed goals for the student and provided related services, which, while not in dispute on appeal, relate to the totality of the parents' unilateral placement consisting of MCC and the student's supplemental home-based services (see Tr. p. 35; Parent Ex. AA ¶¶ 9-10, 13-19).  Overall, the hearing record indicates that MCC addressed all of the student's areas of need, some of which were also addressed by the student's home-based providers (Tr. pp. 21, 24, 27-28, 45; Parent Exs. P; S at pp. 2-5; T at p. 1; AA ¶¶ 12-14, 16, 19-23, 25-29, 31-39, 42, 44; BB ¶¶ 15, 18, 20, 22, 23-25, 28; CC ¶¶ 27, 29, 31-33, 42; DD ¶¶ 30-31, 33-34; EE ¶¶ 7, 11, 17, 19).  Accordingly, the evidence in the hearing record indicates that the student was receiving primarily individual instruction utilizing the principles of ABA at MCC.  Further, the hearing record indicates that the student made progress across all domains which was carrying over into his home and community settings.  As such, the evidence does not tip in favor of the parents' argument that the district was required to provide the student with supplemental home-based services in addition to funding the MCC programming (see Y.D. v. New York City Dep't of Educ., 2017 WL 1051129, at *8 [S.D.N.Y. Mar. 20, 2017] [finding out-of-school services were unnecessary to ensure the student made progress in the classroom and would, instead, be aimed at managing behaviors outside the school day]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *15 [S.D.N.Y. Sept. 27, 2013] ["While the record indicates that [the student] may have benefited from home-based services, it contains no indication that such services were necessary"], aff'd, 589 Fed. App'x 572 [2d Cir. Oct. 29, 2014]).  While the home-based ABA services may have been beneficial, they were not necessary in order to provide the student with services that were reasonably calculated to enable the student to receive educational benefits, the standard enunciated in Rowley and Endrew F.  As noted above, the IDEA ensures the provision of an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).[16]

With regard to the parents' claim that the primary focus of the student's home-based ABA services was not for the purpose of generalizing skills, the hearing record does not support the parents' position.

The MCC executive director testified that MCC provided parent counseling and training and that the student's parents attended clinical team meetings every 10 weeks to review the student's progress and behavior at home and school in addition to daily communication through a home note (Parent Ex. AA ¶ 19).  She further testified that the parents "ask for help when they feel they need more support from [MCC] staff to address [the student]'s needs" and that classroom staff "provided this support to [the student]'s family on managing his problem behavior, collaborating for teaching self-care skills and self-management skills at home and reviewing his data and progress monthly" (id.).

BCBA 1 testified that the student required 1:1 instruction "to acquire new skills, as well as to maintain previously mastered skills" (Parent Ex. BB ¶ 15).  She testified that the student's family members participate in his home-based sessions "to learn how to reinforce skills [the providers we]re working on when [they we]re not present" (id. ¶ 23).  As noted above, she further testified that, while the student had continued to make slow and steady progress and grow in his independence, he still required "1:1 instruction in school and at home" and that he had "not developed the prerequisite skills needed to learn novel skills in a group environment" and "still require[d] a very structured 1:1 instructional environment in order to acquire skills" (id. ¶ 29).

BCBA 2 testified that the student struggled to maintain skills that were not consistently applied and that he had tremendous difficulty "utilizing learned skills across different stimuli, environments, and people" and that his deficits "span[ned] all developmental areas including cognition, academics, communication, social-emotional development, and self-help skills" (Parent Ex. CC ¶ 15).  She further testified that a team of ABA providers were used to deliver services because the student required "multiple teachers to be a part of his after-school program so that he c[ould] work on utilizing learned skills across different environments and with different people" (id. ¶ 19).  In addition, she averred that the student required "ABA services after school in order to generalize, maintain, and progress with skills learned in school to the home and community environment" (id. ¶ 46).

The student's speech-language pathologist testified that the student had significant trouble utilizing learned skills across different environments and different individuals, and that the home program and MCC enabled him to work on generalizing across different settings with different therapists (Parent Ex. DD ¶¶ 3, 39).

The student's mother testified that the student received after school ABA intervention to appropriately address his aggressive and self-injurious behaviors, and as "extra practice outside of school to make sure skills learned are mastered in all different environments and being performed with different people" (Parent Ex. FF ¶ 35).  She further testified that the home-based ABA providers worked closely with the MCC team to ensure the ABA interventions the student received were consistent across the school and home environments (id. ¶ 36).  The parent stated that the "consistency and continual reinforcement of skills [wa]s necessary to ensure [the student's] behaviors d[id] not regress, and to ensure the skills he [wa]s learning at MCC [we]re actually being learned" (id.).

Based on all of the foregoing, there is insufficient basis in the hearing record to disturb the IHO's determinations that "the services provided at home exceed[ed] what would be required for the provision of FAPE" and that the supplemental home-based services "serve[d] to generalize skills across different environments and address needs beyond [the s]tudent's academic goals (IHO Decision at p. 7).  The IHO also correctly determined that there was an overlap between the student's program and services at MCC and the home-based services, that the student's need for ABA instruction, speech-language therapy, and OT was met at MCC (id.).

2. Financial Obligation

The IHO also determined that the parents did not enter into contractual agreements with the home-based providers and that the invoices offered into evidence did not establish that the parents had incurred a financial obligation (IHO Decision at p. 8; see Parent Exs. GG; HH; II; JJ).

In Burlington, the Court stated that "[p]arents who unilaterally withdraw their child from the public school and thereafter seek tuition reimbursement for the[ir] child's private placement do so at their own peril," because they bear the financial risk, both as to tuition and legal expense, and the burden of demonstrating the appropriateness of their relief (471 U.S. at 373-74).  Congress thereafter took action to emphasize the need for parents to be invested in the process of developing a public school placement for eligible students with disabilities by placing limitations on private school reimbursements under the IDEA (20 U.S.C. § 1412[a][10][iii]).  This statutory construct is a significant deterrent to false or speculative claims (see Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 543 [2007] [Scalia, J., dissenting] [noting that "actions seeking reimbursement are less likely to be frivolous, since not many parents will be willing to lay out the money for private education without some solid reason to believe the FAPE was inadequate"]).

Review of the parents' evidence establishes that the parents were obligated to pay the invoices for services rendered by the home-based providers.  However, in light of the above findings, the parents are not entitled to funding for the supplemental home-based services.

Lastly, I do not agree that the IHO erred in "find[ing] that very little 'leisure time' exist[ed] for [the s]tudent to put into practice the skills being addressed through their at-home services" and in "find[ing] that ordering this level of support could ultimately do more harm than good for a student" (IHO Decision at p. 9).  No reduction of funding was associated with the IHO's findings related to leisure time or the potentially burdensome nature of the parents' home-based services.  The IHO did not abuse his discretion by addressing additional factors in his discussion of equitable considerations.

VII. Conclusion

There is insufficient basis in the hearing record to disturb the IHO's determination that the home-based ABA services, speech-language therapy, and OT exceeded the level of services the student required to receive a FAPE and served the purpose of generalizing skills.  I disagree that the parents did not establish a financial obligation for their unilaterally obtained home-based services, however the parents are not entitled to funding for their unilaterally obtain home-based services on equitable grounds.

I have considered the parties' remaining contentions and find they are unnecessary to address in light of my above determinations.

THE APPEAL IS DISMISSED.