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 daughter's tuition at the Bais Yaakov School (Bais Yaakov) and private services for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which ordered pendency.  The appeal must be sustained to the extent indicated.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  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 CSE (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

During the 2021-22 school year the student attended a "preschool 3's program," at which time the parents noticed that she was "not developing typically" (Parent Ex. II ¶¶ 1, 2).  A Committee on Preschool Special Education (CPSE) convened on November 4, 2021, found the student eligible for special education as a preschool student with a disability, and developed an IEP (see Parent Ex. L).  The CPSE recommended that the student receive 12-month programming consisting of five hours per week of in-class individual special education itinerant teacher (SEIT) services, together with two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, three 30-minute sessions per week of individual occupational therapy (OT), and three 30-minute sessions per week of individual physical therapy (PT) (id. at pp. 20-22).

A CSE convened on April 27, 2023, as part of the "Turning 5" process, found the student eligible for special education as a student with a speech or language impairment, and developed an individualized education services program (IESP) with a projected implementation date of September 1, 2023 (see Parent Ex. I).[1]  The CSE recommended that the student receive 10 periods per week of direct group special education teacher support services (SETSS), with two 60-minute sessions per week of individual speech-language therapy, one 60-minute session per week of individual OT, three 30-minute sessions per week of individual PT, and two 45-minute sessions per week of group counseling services (id. at pp. 9-10).  The CSE indicated that the student would be parentally placed in a nonpublic school (id. at p. 12).  The student attended Bais Yaakov for the 2023-24 school year (Parent Ex. II ¶ 5).[2]

In a letter signed on May 29, 2024, the parents notified the district of their intent to place the student at Bais Yaakov for the 2024-25 school year at their own expense and requested that the district provide special education services (Parent Ex. F).

The parents initiated an impartial hearing related to the 2023-24 school year, and in an amended due process complaint notice dated June 9, 2024 alleged that the district failed to implement the student's IESP for the 2023-24 school year (Parent Ex. J).  Among other relief, the parents sought district funding for the costs of the student's privately-obtained services of SETSS, OT, and counseling and compensatory relief for any services the student was entitled to receive but did not receive for the 2023-24 school year (id.).

In an email to a district CSE dated July 22, 2024, the parents indicated that the student "continue[d] to have significant needs" and that they were "exploring [their] options for the 2024-2025 school year" (Parent Ex. D).  The parents requested that the "CSE convene to develop an IEP for [the student] and offer a public school placement" for the 2024-25 school year (id.).  The parents agreed "to any necessary evaluations for this process" (id.).

In an email dated August 29, 2024, the parents notified the district of its failure to convene a CSE meeting or develop an IEP/IESP for the student for the 2024-25 school year (Parent Ex. E at p. 1).  The parents indicated that they remained willing to consider any appropriate program and placement for the 2024-25 school year (id.).  Until then, the parents asserted their intent to unilaterally place the student at Bais Yaakov "along with" 10 hours of SEIT/SETSS, two hours of counseling services, two hours of OT, two and half hours of PT, and two hours of speech-language therapy (id.).  The parents reserved their right to seek funding and/or reimbursement for the tuition and the costs of the private services (id.).

Effective September 1, 2024, the parents entered into an agreement with a clinical psychologist (Counselor 1) to deliver two 45-minute sessions of counseling services per week to the student both at the nonpublic school and in Counselor 1's office at the rate of $350.00 per session (Parent Exs. U; GG ¶¶ 1, 6-7).[3]  In an agreement effective September 1, 2024 the parents arranged for Kids Domain Childcare Center (Kids Domain) to provide SETSS to the student at a rate of $225 per hour (Parent Ex. V).  On September 3, 2024, the parent signed an enrollment agreement with Bais Yaakov for the student's attendance during the 2024-25 school year (Parent Ex. R).

On September 20, 2024, an IHO (prior IHO) issued a decision regarding the parents' claim that the district failed to implement the student's IESP for the 2023-24 school year (Parent Ex. J).  The prior IHO found that the district failed to provide a free appropriate public education (FAPE) to the student for the 2023-24 school year and that the parents met their burden to demonstrate the appropriateness of the privately obtained SETSS, OT, and counseling services (id. at pp. 9, 10-11).  The prior IHO determined that the student did not receive PT or speech-language therapy during the 2023-24 school year, and that the hearing record supported the parents' contention that the student required extra assistance with OT (id. at p. 12).  The prior IHO ordered the district to fund the privately-obtained SETSS, OT, and counseling as well as a bank of compensatory education services consisting of 40 hours of OT, 20 hours of counseling, 60 hours of PT, and 80 hours of speech-language therapy to be provided by providers of the parents' choosing at reasonable market rates (id. at p. 14).  The prior IHO also directed the district to evaluate the student to determine the student's need for extended school year services (id.).

Effective October 1, 2024, the parent entered into an agreement with a school psychologist/mental health counselor (Counselor 2) to provide the student with two 60-minute sessions of counseling services per week at her home, which began on October 29, 2024 at the rate of $420 per hour (Parent Exs. O at p. 1; W; HH ¶ 7).  In an agreement effective December 19, 2024, the parents arranged for a private speech-language pathologist to deliver two 60-minute sessions per week of speech-language therapy to the student at the rate of $180 per session (Parent Ex. T).

A. Due Process Complaint Notice

In an amended due process complaint notice dated November 19, 2024, the parents alleged that the district denied the student a FAPE for the 2024-25 school year (see Parent Ex. A).[4]^, [5]  The parents asserted that the CSE failed to convene or develop an IEP or IESP for the student and failed to provide her with access to a FAPE (id. at pp. 1-2).  The parents alleged that they provided the district with notice of their request for special education services prior to the June 1, 2024 deadline but that the district failed to convene and develop an IESP or an IEP, noting that the last IESP developed for the student was dated April 2023 (id. at p. 2).  The parents alleged that they subsequently sent a letter to the district to request an IEP and a public-school placement on July 22, 2024 (id.).  The parents contended that the district had not convened a CSE or offered a public-school placement since that letter was sent nor had the district implemented the services from the student's last IESP (id. at pp. 2-3).

The parents asserted that the student required 1:1 special education services on a 12-month basis (Parent Ex. A at p. 2).  The parents argued that the student's last IESP recommendations were not appropriate because they did not include a recommendation for 1:1 services (id.).  Moreover, the parents alleged that the district had not complied with the prior IHO's order that it evaluate the student and determine her need for 12-month school year services (id.).

The parents asserted that, in the absence of a district program, they enrolled the student in a "summer day camp" to assist her with social skills and language development, and continued the 10-month placement at Bais Yaakov with additional services consisting of: 10 hours of "1:1 Special Education Instruction/SEIT/SETSS services"; two 60-minute sessions of individual speech-language therapy; two 60-minute sessions of individual OT; two 45-minute sessions of individual PT; and two 60-minute sessions of individual counseling (Parent Ex. A at pp. 2-3).

The parents requested funding for the unilaterally-obtained services at an enhanced rate and tuition reimbursement/funding for Bais Yaakov on a 12-month, 52 week basis (Parent Ex. A at p. 3).  The parents also requested pendency pursuant to the unappealed prior IHO decision dated September 20, 2024, namely that the district be ordered to continue funding all services ordered by the prior IHO (id.).  Lastly, the parents requested a bank of compensatory education services without an expiration date for the district to fund all services not provided pursuant to pendency (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 25, 2024, and concluded on January 21, 2025, after four days of proceedings (see Tr. pp. 1-196).  In a decision dated March 3, 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 because the district did not present a case at the impartial hearing (IHO Decision at p. 10).  Moreover, according to the IHO, the hearing record and, particularly, the lack of a program or placement, supported the conclusion that the district failed to offer the student personalized instruction with sufficient support to enable the student to benefit educationally (id. at pp. 10-11).

Turning to the unilateral placement, the IHO held that there was no evidence that Bais Yaakov "tailored any instruction" for the student or that it created any educational instruction specially designed to meet the student's unique needs (IHO Decision at p. 11).  The IHO noted that Bais Yaakov is a general education school that only provided 3.5 hours of academic instruction per day, and did not provide the student with small group instruction, SETSS, speech-language therapy, OT, PT, or counseling services (id.).  According to the IHO, there was no evidence in the hearing record of any assessments conducted by Bais Yaakov or reflecting how the nonpublic school "adapt[ed] its instruction to address the [s]tudent's academic, socio-emotional, or physical development needs" (id.).  The IHO also noted that the parents sought an IEP for the student, but then placed the student at Bais Yaakov, which only met the student's needs when supplemented by SETSS, speech-language therapy, and counseling services, that they had to procure "separate and apart" from Bais Yaakov (id. at pp. 11-12).  Further, the IHO held that it was puzzling that Bais Yaakov could have provided speech-language therapy and OT, but the parents arranged for the student's speech-language therapy to be provided in the home and did not contract for OT (id. at p. 12).

Next, the IHO noted that the parents were requesting funding for the privately-obtained SETSS, speech-language therapy, and counseling services (IHO Decision at p. 12).  However, "in the absence of an appropriate [school] placement," the IHO held that there was not sufficient evidence to conclude that the privately-obtained related services were "designed to complement" the school placement (id.).  The IHO held that without more evidence, the representations of the service providers that the student required additional services above those recommended in the April 2023 IESP were not sufficient (id.).

The IHO then denied the parents' request for a bank of compensatory education services for all services not provided pursuant to the student's IESP or prior IHO's decision (IHO Decision at pp. 12-14).  The IHO held that the parent rejected the recommendations of the April 2023 IESP when he requested an IEP on July 22, 2024, and therefore, he could not "thereafter request implementation of services that [the parent] notified [the district] that he did not want in the first instance" (id. at p. 14).  Additionally, the IHO noted that she has no authority to enforce orders by other IHOs (id.).  The IHO also determined that the hearing record lacked "any tangible evidence" that the student would substantially regress during the summer to warrant a recommendation of extended school year services (id.).

Finally, the IHO addressed the issue of pendency (IHO Decision at pp. 15-16).  The IHO noted that a prior unappealed IHO decision may establish a student's pendency program, but that an award of compensatory education was not a program or placement, it was a remedy for an education deprivation from a prior school year (id. at p. 15).  The IHO held that the prior IHO decision dated September 20, 2024 established the student's pendency program, but rejected the parents' arguments that the prior IHO's order award of compensatory education services were a part of the student's pendency placement (id. at p. 16).  Accordingly, the IHO held that the student's pendency program was the district funding for the 10-month school year: (1) 10 weekly hours of SETSS (group or individual) at a rate not to exceed $198 per hour; (2) one weekly hour of individual OT at a rate not to exceed $160 per hour; and (3) two 45-minute sessions of counseling (group or individual) at a rate not to exceed $350 per hour (id.).

The IHO ordered that the district "shall, within 90 days of the date of this Order: (a) reevaluate the [s]tudent; and (b) convene to determine the [s]tudent's continued eligibility for special education services and if so, to revise her program (whether IEP or IESP) as needed"; and dismissed the parents' remaining claims with prejudice (IHO Decision at p. 17).

IV. Appeal for State-Level Review

The parents appeal.  First, the parents argue that the IHO erred by failing to make a timely decision on pendency.  The parents note that the parties' briefs on pendency were due by November 15, 2025, but the IHO failed to render a decision on pendency until the final decision dated March 3, 2025, which was a delay of nearly four months.  In addition, the parents argue that the student's pendency should have included additional OT and counseling services awarded by the prior IHO as compensatory services because the prior IHO determined that they were appropriate services for the student in addition to the program the parents had obtained for which the prior IHO awarded funding.  The parents also allege that the IHO erred by setting rates for pendency services as the pendency statute says nothing about costs and it is the district's obligation to provide these services.  According to the parents, in the absence of evidence that the rates were excessive, there should be no limit to the rates charged.

Next, the parents contend that the IHO erred in finding that Bais Yaakov and the unilaterally obtained services were not appropriate to meet the student's needs.  The parents argue that the IHO failed to consider the entirety of the program that they obtained, which was inclusive of placement at Bais Yaakov, SETSS, counseling, and speech-language therapy.  Further, the parents assert that the IHO mischaracterized testimony when finding that Bais Yaakov could have provided the student with speech-language therapy and OT.  The parents argue that it was the district's obligation to evaluate the student and, in the absence of new evaluations conducted by the district, the parents continued the services that they understood to be the last agreed program.  Lastly, the parents allege that the IHO erred in finding that the student's related services did not support her school program, as the evidence from the providers showed how the services supported the program.

The parents also argue that the IHO erred by not awarding compensatory education services.  The parents assert that their request for an IEP was not a rejection of the IESP, and compensatory education services are warranted for the district's failure to implement the IESP until an IEP was created.  Further, the parents argue that compensatory education services are warranted for the district's failure to implement stay-put services.  Finally, the parents contend that the IHO's order for the district to evaluate the student within 90 days was an abuse of discretion, as it allowed the district more time to comply with the orders in the prior IHO decision.

In an answer with cross appeal, the district responds to the parents' material allegations and argues that the IHO's decision should be upheld except with respect to pendency.  In particular, the district contends that the IHO properly held that the unilaterally obtained services and Bais Yaakov were not appropriate for the student as the parents failed to meet their burden of proof.  The district also argues that the IHO properly denied the parents' request for compensatory education services.  In addition to the grounds cited by the IHO for denying compensatory education, the district additionally argues that the parents rejected the services from the April 2023 IESP by unilaterally placing the student at Bais Yaakov while requesting funding for that placement.  The district asserts that, if there were gaps in the unilateral programming, any failure on the part of the providers to deliver all services would not be attributable to the district.  The district alleges that the hearing record does not support a finding that the student was entitled to compensatory education services for the extended school year as the evidence in the hearing record does not support the need for such services.  The district notes that they are not appealing the IHO's order to evaluate the student as the order was part of the IHO's equitable authority.

As a cross appeal, the district argues that the IHO erred by ordering pendency services.  The district notes that it is not challenging the IHO's decision that the student's pendency program arose from the unappealed prior IHO decision dated September 20, 2024 and agrees with the IHO that the student's pendency entitlement applies on a 10-month basis and does not include the compensatory services awarded by the prior IHO.  However, the district argues that the IHO erred in determining that the student was entitled to pendency.  In particular, the district asserts that the parents rejected pendency when they unilaterally placed the student at Bais Yaakov and sought funding for that program.  The district requests that the IHO's pendency order be vacated.

As an answer to the district's cross-appeal, the parents reiterate their arguments from the request for review and counter the arguments of the district.  More specifically, the parents contend that the district's cross appeal regarding pendency should not be considered because the district's contentions that the parents rejected pendency, changed the student's educational placement, and are seeking a partial program of elements preferred by the parents are being raised for the first time in its cross-appeal and therefore are not properly preserved below and reviewable.

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]).[6]

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

Initially, the district has not appealed from the IHO's finding that the district failed to offer the student a FAPE for the 2024-25 school year (IHO Decision at p. 10).  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. Pendency

Turning first to the district's cross-appeal of the IHO's decision on pendency, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[7]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

Initially, the parties do not dispute overall that the prior IHO decision dated September 20, 2024 formed the basis for the student's pendency services during the instant administrative proceedings (see Parent Ex. J).  Further, the parents do not claim that placement at Bais Yaakov was part of the student's pendency.  However, the parents argue that the IHO should have determined that the student's pendency placement also included the prior IHO's award of compensatory education services (see Answer & Cr. App. ¶ 21; Parent Ex. J).  Compensatory education ordered in an IHO decision in fixed banks of limited duration or quantity that does not contemplate the entirety of the student's educational programming going forward and merely supplements and stands alongside the programming designs of future IEP(s) by providing additional services to address past deficiencies is unlikely to serve as a basis for determining pendency or stay put in a subsequent proceeding (see Application of a Student with a Disability, Appeal No. 25-051; Application of a Student with a Disability, Appeal No. 20-197; Application of a Student with a Disability, Appeal No. 11-091).  This type of compensatory education relief functions as a catch-up remedial measure only rather than a replacement of the statutory framework, thereby maintaining the integrity of the IEP process going forward.  Accordingly, the IHO did not err in excluding the services awarded by the prior IHO as compensatory education from the student's pendency placement.

The district contends that the IHO erred by awarding pendency because the parents rejected pendency when they unilaterally placed the student at Bais Yaakov with additional privately-obtained services.[8]  For the 2023-24 school year, although the student was placed at a nonpublic school, the parents challenged the district's failure to implement the April 2023 IESP and sought among other relief, district funding for privately-obtained services (Parent Ex. J).  In a decision dated September 20, 2024, the prior IHO determined that the parents met their burden to prove the appropriateness of the SETSS, OT, and counseling services by providers unilaterally-obtained by the parents (id.).  The evidence in the hearing record indicates that the private SETSS were delivered by EdZone, the counseling was provided by Counselor 1, and the OT was provided by "OT For Me" (see Parent Exs. J at p. 17; N; GG ¶¶ 5-6).  Subsequently, for the 2024-25 school year, the parents sought an IEP from the district and advised that they had unilaterally placed the student at Bais Yaakov and would seek public funding for the unilateral placement of the student (Parent Exs. D; E).  For the 2024-25 school year, the parents procured unilateral services of SETSS from Kids Domain, speech-language therapy from an individual provider, and counseling initially from Counselor 1 for September 2024 but then from a different provider, Counselor 2, for the remainder of the school year (see Parent Exs. T-W).  Thus, the services obtained by the parents differed from the SETSS, OT and counseling previously found appropriate by the prior IHO.

The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35).  The Court described that:

[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis.  To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.

(id. at 534).

In short, the parents' decision to seek public funding for the student's unilateral placement at Bais Yaakov and change the private services, as well as the delivery of the private services, constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]).  The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parents had not been found appropriate in any administrative proceeding.  When the parents unilaterally placed the student at Bais Yaakov and unilaterally obtained additional SETSS, counseling, and speech-language services from new providers, the parents did so at their own financial risk and can only obtain funding for the costs of the student's tuition and related services if the services offered by the board of education are found to be inadequate or inappropriate, the placement and services selected by the parent are found to be appropriate, and equitable considerations are found to support the parents' claim (Ventura de Paulino, 959 F.3d at 526; see Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70).

Ultimately, however, the IHO did not order the district to fund the student's unilaterally obtained services from the new providers for the period of time after the September 2024 due process complaint notice as pendency.  Rather, the IHO made a declaratory finding identifying the September 2024 prior IHO decision as the basis for pendency (IHO Decision at p. 16).  The IHO did not err in this regard.  However, to the extent there was any ambiguity, the IHO's decision should not be read to require the district to fund new services obtained for the student by the parents for the 2024-25 school year pursuant to pendency.  As discussed below, however, the district shall be required to fund them based on a finding that it denied the student a FAPE, the unilateral placement was appropriate, and no equitable considerations warrant a reduction or denial of the relief sought.  Based on the foregoing, the district's cross-appeal seeking vacatur of the IHO's order on pendency is dismissed.

Having determined that the parents' rejected the student's pendency placement, there is no need to address the parents' remaining arguments regarding pendency.

B. Unilateral Placement

Turning to a review of the appropriateness of the unilateral placement at Bais Yaakov and the unilaterally-obtained services, a private school placement must be "proper under the Act" (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 [1985]), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

1. The Student's Needs

As an initial matter, with respect to the IHO's finding that the parents did not present evidence of assessments conducted by Bais Yaakov (see IHO Decision at p. 11), I note that a nonpublic school does not have the same statutory and regulatory obligation as the district to develop an IEP or an education plan for the student (Carter, 510 U.S. at 13-14); consequently, neither the parents nor Bais Yaakov had a corresponding mandate or other requirement to identify the student's needs (see A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]).  Moreover, in this matter, the student's needs are not materially in dispute.  Nevertheless, a review of the student's needs is warranted to determine whether the unilateral placement at Bais Yaakov and the services the parents unilaterally obtained for the student during the 2024-25 school year were appropriate.

A December 13, 2023, EdZone SETSS progress report indicated that, at that time, the student was in kindergarten at Bais Yaakov and receiving 10 periods per week of individual special education teacher services (Parent Ex. N at p. 1).  According to the report, the student's reading grade equivalent was "Kindergarten" and her ability to identify letters and their sounds was emerging, although she had not mastered all the vowel sounds and, at times, "mixe[d] them up" (id. at pp. 1-2).  Additionally, the student could identify and read several sight words including "we, I, a, yes, and, no," and needed to improve her reading pace and fluency skills (id. at p. 2).  The student's comprehension of read alouds appeared to be satisfactory, although at times she struggled with higher order thinking questions (id.).  In the report, the SETSS provider expressed concern over the student's knowledge of a wide range of vocabulary (id.).

In writing, the SETSS report indicated that the student's ability to use inventive spelling with consonants was progressing, as she had not yet mastered encoding vowel sounds (Parent Ex. N at p. 2).  Although the student could form letters, she did not appropriately hold her pencil and refused correction (id.).  Rather, she would repeatedly erase something if it did not come out how she wanted, which slowed her down, making her fall behind the class, and often preventing her from completing classroom assignments (id.).  The student needed help to deal with frustration and keep up with, and complete, classroom writing assignments (id.).

In math, the SETSS report reflected that, although the student was progressing nicely in her math computation skills, she lacked math reasoning skills (Parent Ex. N at p. 2).  According to the SETSS report, the student could not explain how she solved a math problem or breakdown and identify what steps were involved in doing so (id.).  The report indicated that she was rigid in her way of thinking, and she liked to solve problems only one way (id.).

With regard to the student's social development, the December 2023 SETSS report indicated that, at that time, the student had challenges with emotional regulation and continued to present with delays in her social interactions and skills (Parent Ex. N at p. 3).  The student presented as rigid in her behaviors, which could get in the way of appropriate peer interactions, she struggled to cope with changes in an age-appropriate manner (id.).  The report indicated that, when things did not go according to plan, she struggled with flexibility and working on how to cope (id.).  The student had a hard time advocating for herself and had difficulty expressing herself when she was upset (id.).  At times, the student needed prompting to approach teachers and use the bathroom (id.).  Additionally, the report indicated that the student's social interaction skills were delayed, as her eyes wandered as she talked, and she needed consistent prompting to sustain eye contact when talking (id.).  The student also spoke very rapidly and required reminders to slow down when she spoke in order to improve intelligibility, which affected her interaction with others and participation in the classroom due to ongoing difficulties with being understood (id.).  Regarding play skills, the report stated that the student generally did not initiate interactions or play, needed prompting to interact with peers, and had difficulty playing with any sort of organized play and she needed support for appropriate social behavior (id.).

2. Bais Yaakov

The parents' unilateral placement of the student consisted of Bais Yaakov as well as services from private providers not affiliated with the school.  The IHO seemed to fault the parents for this arrangement, finding that the parents "only agreed that [Bais Yaakov] met [the student's] needs when supplemented by SETSS, the [speech-language therapy], and Counseling that he procured separate and apart from the Private School" (IHO Decision at pp. 11-12).  However, 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).  All components of the unilateral placement must then be considered together, taking into account the totality of the circumstances (see Gagliardo, 489 F.3d at 112).

As for evidence in the hearing record regarding the school placement, testimony by affidavit by the principal of general studies (principal) indicated that Bais Yaakov was a mainstream school which served students from kindergarten through eighth grade (Parent Ex. CC ¶¶ 1, 6).  According to the principal, the student's mainstream first grade class consisted of 28 students, a teacher, and one assistant teacher (Tr. pp. 100, 102, 104-05; Parent Ex. CC ¶ 12).  The "Hebrew subjects" portion of the student's Monday through Thursday schedule started at 8:15 a.m. and consisted of breakfast, Hebrew reading, prayers, circle time, Jewish law, recess, weekly Torah reading and Jewish history, Hebrew language skills, and lunch, ending at 12:15 p.m. (Tr. p. 94; Parent Ex. Q).  The "English subject[s]" portion of the student's schedule began at 12:15 p.m. and consisted of the pledge of allegiance and review time, ELA-reading and writing, recess, mathematics, science, and social studies and ended at approximately 4:00 p.m. (Tr. p. 94; Parent Ex. Q).  On Fridays, the Hebrew subjects were scheduled in the morning until approximately 10:30 a.m., and English subjects were scheduled between 10:30 a.m. and 1:00 p.m. (Tr. p. 94).

The principal testified that the teacher conducted informal assessments of the student at the beginning of the school year, consisting of reading and working with her individually to determine whether the student needed remediation or additional evaluations (Tr. p. 92).  Additionally, both formal and informal assessments of students were conducted on an ongoing basis, and Bais Yaakov's approach to literacy for students with special needs was to "follow" the district's "Core Standard Curriculum" (Tr. p. 92; Parent Ex. CC ¶¶ 10, 15).  In addition to following the district's core standards, the principal indicated that literacy instruction "incorporate[d] all kinds of strategies, special ed[ucation] strategies, comprehensive balanced literacy strategies, and everything" that the school could use (Tr. p. 97).  The principal testified that, although related services provided by independent contractors were available at the school, those services were not requested for the student, and she received all of her services outside of school (Tr. pp. 92, 101).  Also, related service providers from the school had not screened or assessed the student, and the school did not feel the student needed them (Tr. pp. 92-93).

The student had one instructor for ELA and another instructor for math, science, and social studies, and both instructors held a master's degree in special education (Tr. pp. 95-97).  Regarding ELA instruction, the principal testified that the student's "homogeneous" reading group consisted of 27 students, which was formed by pulling students from each of the four first grade classrooms (Tr. p. 103).  According to the principal, students in the student's reading group were all "pretty much" receiving the same reading assignments and reading the same stories, although at the "workshop tables" the teacher differentiated instruction by asking different comprehension questions or completing different activities based on that workshop group's skills and needs (Tr. pp. 106-07).  Bais Yaakov offered a modified, "specialized reading program" for 10 students with special needs conducted by a "special education professional" who used "the Wilson method" or "foundations," with students; however, the student did not receive this service because according to the principal, academically, the student was "doing very beautifully" and she was not at the reading level of the specialized group, but rather was at "a regular grade" reading level (Tr. pp. 97, 100, 102).  The principal indicated the school used the district's core standards and the GoMath series for math instruction (Tr. pp. 97-98).  For science and social studies, the principal indicated that she left it up to the teachers to share the time slot as needed, based on the intensity of a given topic and the time needed to delve into the topic (Tr. p. 98).

With regard to the student, the principal testified that she knew the student received services outside of school but she did not know about the student's special education needs (Tr. p. 107).  She stated that she saw the student in the classroom as a child who was "thriving, who follow[ed] directions, who listen[ed] respectfully, and [who was] on task" (id.).  Further, the principal's testimony by affidavit indicated that the student was making progress and reflected her belief that the student was appropriately placed at the school (Parent Ex. CC ¶¶ 17, 18).

3. SETSS From Kids Domain

A December 18, 2024 midyear SETSS progress report was completed "collaboratively" by a special education teacher who specialized in reading (reading specialist) and another SETSS provider (SETSS provider) who worked with the student during the 2024-25 school year (Parent Exs. P at pp. 1, 5; FF ¶ 1).  The reading specialist testified that she began working with the student in November 2024, and she provided eight hours per week of SETSS to the student "in her home and sometimes in her classroom at school," while the SETSS provider delivered two hours per week to the student (Tr. p. 153; Parent Ex. FF ¶¶ 5-6).

The December 2024 midyear progress report indicated that the student received 10 hours per week of SETSS "over a 12-month extended school year, consisting of 52 weeks" (Parent Ex. P at p. 1).  Information and goals in the report were reportedly "based on personal observations during sessions," and "consultation with [the student's] classroom teachers and previous providers" (id.).[9]  The report indicated that the student was "lacking significantly in her social and emotional skills," noting that she became dysregulated when her expectations changed, she could become uncooperative and aggressive at times, and that she was "extremely rigid and had a hard time with flexibility and compromise," which "severely impact[ed] her ability to transition" and socialize with peers (id.).  According to the report, the student exhibited "'baby talk,' silly behavior, and clinginess," had difficulty expressing herself, asking for help, and refraining from touching others without permission, and she gravitated towards isolated activities rather than joining with others during play (id.).

Socially, the progress report indicated that, as reported by her classroom teacher, the student had shown improvement in her interactions with her peers in structured activities, but still resisted joining groups during unstructured time like the playground, recess, or lunch (Parent Ex. P at p. 2).  The student had been receptive to the use of role playing, storytelling using books and puppets, as well as games as tools to foster these skills (id.).  Social goals for the student included initiating and maintaining eye contact, reducing inappropriate and "unauthorized touches," reducing reliance on baby talk, silliness, and clinginess as a coping strategy, and initiating conversations (id. at p. 3).

Emotionally, the progress report included that the student's ability to identify and manage her emotions was well below grade level (Parent Ex. P at p. 3).  The SETSS providers reported working to increase the student's emotional vocabulary for her to be able to identify her emotions; she usually identified simple emotions but had difficulty with more complex emotions (id.).  Setting and communicating expectations and agendas, as well as motivational reward charts had been helpful in preventing the student from having tantrums, but managing her emotions once she was dysregulated was still in need of significant support in order to see measurable progress in that area (id. at pp. 2, 3).  In addition, having the student provide input on what she would like to do and giving her choices to empower her had made a notable difference, and providing sensory breaks during the sessions had also proven effective in keeping the student regulated (id. at p. 2).  Goals developed for the student included identifying and labeling five emotions, reducing the time needed to regulate herself, transitioning smoothly to sessions, adjusting to changes in schedules and routines, and expressing wants and needs (id. at p. 3).

The progress report also indicated that, although the student's executive functioning was overall age appropriate, "her emotional challenges create[d] barriers to her executive functioning" (Parent Ex. P at p. 3).  For example, the student had difficulty expressing her needs and was anxious to approach a teacher to use the bathroom, and because the student felt rushed and nervous about catching the bus, she had a hard time slowing down to remember to bring home the things she needed to complete her homework (id.).  According to the report, setting clear goals and creating an organizational routine for the student would greatly reduce her anxiety and improve her executive functioning relating both to her academics and basic human functions (id.).  The SETSS providers reported success with setting clear and specific times for the student to accomplish her tasks, and using visual checklists and reward charts to help manage the student's anxiety around organizing her homework (id. at p. 4).  Goals for the student in this area included using the bathroom twice per day outside the home, spending time at the end of the school day using a checklist to ensure that she had packed everything she needed to complete her homework, and packing her school bag for the next day using a sticker chart to monitor progress (id.).

The progress report noted there had been moderate progress with the student's social/emotional skills (Parent Ex. P at pp. 1-2).  According to the progress report, the student often had difficulty transitioning to her sessions, often resulting in large outbursts and tantrums (id. at p. 2).  In the past, the student had been known to bite herself causing significant bruising along her arms and legs (id.).  While she no longer exhibited that behavior, she still reportedly had extreme difficulty regulating her emotions during transitions (id.).  When the student was regulated, she engaged in tasks and followed instructions well (id.).  The student also demonstrated moderate progress socially "[w]hen calm and focused," as her classroom teacher reported the student showed improvement in her interactions with peers in structured activities, although she continued to resist joining groups during unstructured times (id.).

In summary, the progress report indicated that with support the student would be able to gain the necessary social/emotional skills to allow her to thrive with her peers and others around her (Parent Ex. P at p. 4).  The skills worked on during SETSS sessions would allow the student to reduce her anxiety and manage her emotions, which would allow her to be calm, to focus in class, and better handle schedule changes and transitions (id.).

During the impartial hearing, the reading specialist testified that she met with the SETSS provider approximately twice per month to discuss what she was working on with the student, and the reading specialist believed that both were "covering the same . . . types of materials" with the student (Tr. pp. 152, 153).  According to the reading specialist, the SETSS provider was working "on the social-emotional aspect," and as far as the reading specialist knew, the SETSS provider was "working on the same type of reading materials and math homework" with the student; however, she testified that there was no continuity or dovetailing between her sessions and the SETSS provider's sessions (Tr. pp. 152-53).  Although the reading specialist and SETSS provider collaborated, the reading specialist affirmed that they each had their own methodologies and procedures that they followed with the student (Tr. p. 154).  She reported that, while she did work on reading and math with the student, she primarily focused on the student's "social and emotional component" (Tr. p. 155).

4.Counseling Services

According to Counselor 1, the student exhibited "significant challenges in the social-emotional area of development," including limited and inappropriate peer engagement, and significant difficulty describing and expressing her own emotions (Parent Ex. GG ¶ 8).  Strategies used during sessions included direct instruction, modeling and behavior rehearsal, and differential reinforcement of appropriate behavior; according to Counselor 1, the student needed "an intense motivational system" to remain on task and motivated to participate in sessions (id. ¶ 9).  Counselor 1 testified that the student transitioned to a new provider in October 2024; since she "only had a few sessions" with the student in September, the student began to understand some concepts but there wasn't enough "time to see substantial progress" (id. ¶¶ 6, 11).

A December 16, 2024 annual review progress report prepared by Counselor 2 identified the student's strengths, as well as "significant challenges" including inconsistent eye contact, limited imaginative play, difficulty expressing her feelings in various social situations, difficulty maintaining personal boundaries and recognizing the emotions/needs of others (Parent Ex. O at pp. 1-2).  According to the progress report, during counseling sessions the student exhibited inconsistent task engagement and compliance, necessitating the use of a structured motivational system that incorporated tangible reinforcers (id. at p. 2).  The progress report indicated that this system had been effective in increasing the student's compliance and task focus (id.).  While Counselor 2 reported that the student had made measurable progress in some areas, she continued to present with notable social/emotional and behavioral deficits that required ongoing intervention and support (id.).  The progress report reflected goals for the student and her progress towards those goals in the areas of demonstrating age-appropriate and spontaneous eye contact, engaging in imaginative play activities, identifying and expressing her emotions effectively, engaging with peers in age-appropriate interactions, respecting others' boundaries, and participating in group activities (id. at pp. 2-5).  With regard to strategies and interventions, the progress report indicated that Counselor 2 used the "[t]argeted [b]ehavioral [i]nterventions" of direct instruction, shaping behavior through gradual reinforcement, a motivational system with positive reinforcement, differential reinforcement of appropriate behavior, and differentiated attention to address attention-seeking behaviors with the student (id. at pp. 5-6).

In an affidavit, Counselor 2 testified that, at the start of the school year, she, "the special education administrator," and the student's special education service providers "who worked with her last year," discussed "how [the student's] social emotional needs present[ed] in the school setting and how that connect[ed] to the service [Counselor 2] provide[d] and generalization of skills" (Parent Ex. HH ¶ 9).  According to Counselor 2, it "ha[d] been reported to [her] that generalization [wa]s taking place," and that the student "ha[d] become more comfortable with school participation since the beginning of our sessions" (id.).  Counselor 2 also testified that she "intermittently check[ed] in with the school to see how [the student] [wa]s progressing" (id. ¶ 22).  She testified that she delivered services to the student in her home "based upon her school schedule and upon her social-emotional needs"; noting that "sessions work[ed] best" in an environment where the student was comfortable, familiar, and distraction free (id. ¶ 7).

5. Speech-Language Therapy

In an affidavit, the student's speech-language pathologist indicated she initially met the student in December 2024 (Parent Ex. EE ¶ 7).  At the time of the impartial hearing, the speech-language pathologist had conducted two evaluative sessions and had seen the student for four sessions at the student's home (Tr. pp. 171-72).[10]  The speech-language pathologist testified that the student presented with a speech-language disorder affecting her ability to maintain conversation, perform metalinguistic tasks, and retell narratives (Parent Ex. EE ¶ 9).  The student also had difficulty answering opinion questions and at times presented with unintelligible and dysfluent speech (id.).  The speech-language pathologist developed goals for the student, that she improve her conversation skills, and ability to: express opinions, formulate sentences using specific words, explain homonyms, verbally identify pictures and sentences containing absurdities, use verbal inferencing in response to pictures and text, retell stories, formulate simple narratives (with proper story grammar elements) given a story starter and prompts, and improve auditory perception and self-correction of unintelligible speech (id. ¶ 10).[11]

The speech-language pathologist testified that she used books, workbooks, and games with the student (Tr. p. 174).  The speech-language pathologist documented each session conducted via notes kept in her phone, and wrote a progress note when asked to do so (Tr. pp. 172-73).  She testified that she spoke with the student's classroom instructors once and with the parents after sessions, but not in front of the student (Tr. pp. 171, 175).

6. Summary

In finding that the parents failed to meet their burden to prove that the unilateral placement was appropriate, the IHO found the evidence lacking with respect to the instruction provided by Bais Yaakov (IHO Decision at pp. 11).  In particular the IHO found that the school did not evaluate the student, only provided "3.5 hours daily of academic instruction," did not provide a small group for the student, and did not provide special education services (id. at pp. 11-12).  As discussed above, it was the district's obligation to evaluate the student, and, in any event, the student's needs are not in dispute (see A.D., 690 F. Supp. 2d at 208).  With respect to the number of hours of instruction provided at Bais Yaakov, it appears that the IHO discounted the portion of the day devoted to "Hebrew subjects," yet the student's schedule provided for instruction in all core subject areas, the school employed the district's core curriculum, and the portions of the day devoted to "Hebrew subjects" broadly included times for, among other things, meals, recess, history, and language, and therefore ought not have been discounted outright (Tr. pp. 92, 94; Parent Exs. C ¶¶ 10, 15; Q; see IHO Decision at p. 11).

Next, the IHO cited the April 2023 IESP for the proposition that the student needed small group instruction (IHO Decision at p. 11 & n. 51, citing Parent Ex. I at p. 1).  Viewed in context, the IESP described the student's tendency to be reserved and reluctant to "share her knowledge" in class and indicated she was "more successful in a small group where she c[ould] receive support and encouragement from her teachers" but also noted that she still did "not always participate in activities" (Parent Ex. I at p. 1).  The student's underlying needs in this regard, namely as related to her rigidity, anxiety, and ability to express herself, were the focus of the student's SETSS, counseling, and speech-language therapy services (see Parent Exs. EE ¶¶ 9-10; GG ¶¶ 8-9; O at pp. 1-6; P at pp. 1-4).  Moreover, as discussed above, the student "ha[d] become more comfortable with school participation" since receiving counseling services from Counselor 2 (Parent Ex. HH ¶ 9).  Thus, the hearing record does not support the IHO's determination that the unilateral placement was inappropriate due to the lack of small group instruction.

Finally, although Bais Yaakov did not provide special education, as noted above, the IHO should have taken into account the unilateral placement in its entirety, including the private SETSS, speech-language therapy, and counseling services.[12]  As described above, the hearing record shows that the student's private providers communicated with Bais Yaakov and, with the SETSS, speech-language therapy, and counseling in place, the student made progress in the school placement.  Based on the foregoing, the parents met their burden to prove that the unilateral placement, consisting of the student's placement Bais Yaakov, SETSS from Kids Domain, and counseling and speech-language therapy services from private providers, was appropriate to meet the student's unique needs.

C. Equitable Considerations

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

Here, having found that the unilateral placement was not appropriate, the IHO did not weigh equitable considerations in this matter.  In its answer and cross-appeal, the district does not raise any equitable matters for review.  Moreover, a review of the hearing record in its entirety reflects that the parents communicated with the district through correspondence that expressed their interest initially in special education services provided by the district and, subsequently in a district public school (Parent Exs. D; F).  In addition, the parents provided notice of their intent to unilaterally place the student (Parent Ex. E).  Despite these communications, there is no indication that the district responded to the parents.  During the impartial hearing, the district argued that the rates charged by private providers were excessive (Tr. p. 183), but it presented no evidence in support of this position and has not raised the issue on appeal.  Accordingly, I find no basis for a reduction or denial of an award of reimbursement to the parents or direct funding for the costs of the student's tuition at Bais Yaakov and private services.

D. Compensatory Education Services

Lastly, I turn to the parents' allegation that the IHO erred by failing to award compensatory education services.  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"]).

Here, the parents engaged in self-help and unilaterally placed the student and obtained private services.  There is no evidence in the hearing record regarding the parents' efforts to obtain more services for the 2024-25 school year such as OT or PT.[13]  Further, the parents claim that the unilateral placement of the student at Bais Yaakov with SETSS, counseling, and speech-language therapy was appropriate for the student and met her needs.  The parent also argues that the student needed more related services as compensatory education.  However, in this instance, I find that "[b]oth statements cannot be true at once" (M.M., 2024 WL 3904771, at *10).  As I have found that the parents' unilateral placement of the student was appropriate with the level of services provided, the hearing record does not indicate that the student was deprived educational benefit due to the lack of other services.  Therefore, under the circumstances, I find not basis for an award of compensatory education to remediate gaps in the unilateral programming arranged for by the parents, especially absent specific evidence regarding any difficulties they encountered arranging for 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).

Finally, I am not persuaded by the parents' argument that the IHO erred in not awarding compensatory education services to the student for services missed during pendency.  As previously discussed, the parents elected to unilaterally enroll the student at Bais Yaakov and procure additional services that differed from those previously found appropriate by the prior IHO, thereby changing the status quo by providing different services to the student.  Thus, the parents rejected the entirety of the pendency program and are therefore not entitled to district funding for related services pursuant to pendency.  Likewise, there is no basis to an allegation that the district failed to implement the student's pendency placement, as the parents bore the financial risk of changing the student's program by unilaterally arranging for the delivery of services by private providers without district input.

VII. Conclusion

The parents met their burden to demonstrate that the unilateral placement and unilaterally obtained services were appropriate for the student for the 2024-25 school year and no equitable considerations warrant a reduction or denial of relief.  Accordingly, the district shall be required to reimburse the parents or directly fund the costs of the student's tuition at Bais Yaakov as well as the costs of SETSS from Kids Domain, and private counseling and speech-language therapy services from individual providers.  The IHO did not err in denying compensatory education services for the 2024-25 extended school year.

I have reviewed the parties' remaining contentions and find them to be without merit.[14]

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated March 3, 2025, is modified by reversing those portions which found that the parents did not meet their burden to prove that the unilateral placement was appropriate and which denied the parents' request for reimbursement or direct funding from the district for the costs of the student's tuition at Bais Yaakov and the costs of SETSS from Kids Domain and speech-language therapy and counseling services from individual providers; and

IT IS FURTHER ORDERED that the district shall reimburse or directly fund the costs of the student's tuition at Bais Yaakov and the costs of SETSS from Kids Domain and speech-language therapy and counseling services from individual providers during the 2024-25 school year upon submission of proof of payment or invoices with proof of delivery of services.