I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which reduced the rate of funding by respondent (the district) for her daughter's private services delivered by Special Touch by S&R Inc. (Special Touch) for the 2023-24 school year.  The district cross-appeals from those portions of the IHO's decision which found that the parent's unilaterally obtained services were appropriate, and which awarded the parent funding for the unilaterally obtained services.  The appeal must be dismissed.  The cross-appeal must be sustained in part.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

During the 2022-23 school year the student was in first grade at a nonpublic school and "referred for testing" due to "significant difficulty with early reading" and "only very basic pre-academic skills" (Parent Ex. B at pp. 1-2).  A CSE convened on January 23, 2023, and finding the student eligible for special education as a student with an other health impairment, developed an IESP with an implementation date of February 6, 2023 (id. at p. 1).[1]^, [2]  The CSE recommended that the student receive two 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual occupational therapy (OT) in English (id. at p. 11).

On May 29, 2023, the parent signed a form to notify the district that the student would attend a nonpublic school at her own expense for the 2023-24 school year and that she wanted the student's special education services to continue for that school year (Parent Ex. C).

The parent signed a parent service contract on August 31, 2023, which provided that Special Touch would "make every effort to implement" two 30-minute sessions of individual OT for the 2023-24 school year "to whatever extent possible" (Parent Ex. D).[3]  The parent service contract indicated that Special Touch would charge a rate of $300 per hour for OT (id.).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024 and an amended due process complaint notice dated September 10, 2024, the parent, through her attorney, contended that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year as the district failed to implement the student's recommended educational program for the 2023-24 school year (Parent Exs. A; H).  The parent alleged that she was unable to locate related service providers on her own accord (Parent Exs. A at p. 2; H at p. 2).  For relief, the parent sought an order that the district fund the costs of the providers secured by the parent for the 2023-24 school year at the providers' contracted rates, as well as an order that the district fund a bank of compensatory education hours of related services "for the entire 2023-24 school year – or the parts of which were not serviced," to be funded at the prospective providers' contracted rates (Parent Exs. A at p. 3; H at p. 4).  The parent also asked that the IHO issue an order of pendency for the district to implement the recommendations in the student's January 2023 IESP (Parent Exs. A at p. 2; H at p. 2).

In a due process response, dated July 24, 2024, the district generally responded to the parent's contentions and stated its intent to raise various defenses (Due Proc. Resp.).[4]

B. Impartial Hearing Officer Decision

An IHO was appointed from the Office of Administrative Trials and Hearings (OATH), and the parties appeared before the IHO for an impartial hearing on January 16, 2025 (Tr. pp. 1-27).[5]

In a decision dated January 21, 2025, the IHO found that the district failed to implement the recommendations in the student's January 2023 IESP for the 2023-24 school year, thereby denying the student a FAPE, and that the relief the parent sought was appropriate, in part (see generally IHO Decision).  The IHO indicated that she declined to apply a Burlington/Carter analysis to the matter, instead choosing to apply a compensatory education analysis (id. at pp. 6-11).  The IHO noted that the district submitted two reports regarding studies on rates for education services, but the IHO found that, without a witness related to those reports, the exhibit lacked foundation, and that it was not conclusive that the reasonable market rate in this matter was $125 (id. at p. 10).[6]  The IHO found that the unilaterally obtained services by the parent were appropriate, but that the hearing record also supported a finding that Special Touch's rate was excessive (id.).  The IHO held that, "[b]ased on the totality of the record" the appropriate rate for the OT Special Touch delivered would be $175 an hour (id.).  The IHO indicated that there was minimal evidence to indicate what Special Touch's contracted rate was put toward, as the parent's witness was only able to provide general information, and testified "to a large difference between the amount charged and the amount paid to the provider" (id.).  The IHO indicated that, although it was not the parent's burden to establish that Special Touch's rate for services was appropriate, the IHO nonetheless found it was "necessary that specific context [was] provided as to what the rate [was] used for regarding the specific student when the rate [was] enhanced" (id. at pp. 10-11).

The IHO ordered the district to fund a bank of compensatory education services consisting of 36 hours of individual speech-language therapy and two 30-minute sessions per week of individual OT at a rate of $175 per hour for the 2023-24 school year (IHO Decision at p. 12).  The IHO indicated that any amount paid for the above services pursuant to pendency would be subtracted from the award to the parent, and further indicated that if the parent had already paid for any of the services above, the district was to reimburse the parent for the cost of such services after proof of payment was provided (id.).  The IHO further indicated that the district would be required to directly fund providers selected by the parent upon receipt of invoices for services rendered, session notes for each service (at least weekly), and a sworn affidavit from each provider that the services described in the invoices were actually rendered (id.).  The IHO indicated that the parent's award would expire by September 8, 2026 if it remained unused (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging, among other things, that the IHO arbitrarily determined the rate that would be awarded to the parent for OT.  The parent contends that the IHO wrongfully determined the rate of the parent's OT provider to be excessive, as she alleges that the district failed to present evidence as to what would be a reasonable market rate.  The parent also "objects to the AIR study being admitted to evidence."  In addition, the parent contends that it was established that the services unilaterally obtained for the student were appropriate.  The parent asks that the IHO decision be reversed and that full "reimbursement" be granted to the parent for the 2023-24 school year, which would equate to $300 per hour for OT.

In an answer and cross-appeal, the district contends that the IHO incorrectly applied a compensatory education analysis, rather than a Burlington/Carter analysis, to determine whether the private related services unilaterally obtained by the parent were appropriate.  The district alleges that the IHO found that the services were appropriate "without any analysis of the facts in the case" and that the hearing record does not contain evidence as to how the services were individualized to meet the student's unique needs.  The district alleges that the testimony Special Touch's owner merely indicated what services the student received and what the cost of those services were with a general reference to the student showing signs of progress.  The district also argues that the progress report in evidence for the student's OT "only provided generalized ideas of what OT [the student] received and what progress she made."  Further, the district alleges that there was no mention or discussion as to how the OT correlated to the student's general education curriculum.  The district also contends that the IHO lacked subject matter jurisdiction over the parent's claims.  The district agrees with the IHO's finding that equitable considerations warrant a reduction of the parent's requested relief.  In particular, the district asserts that the IHO did not err in finding the OT provider's rate to be excessive and that the owner's testimony related to the rate was conflicting and not credible.  The district asks that the awarded rate to the parent be further reduced to $125 per hour.

In an answer to the cross-appeal, the parent, through her attorney, contends that the IHO did not err by applying a compensatory education analysis as this matter was not a "tuition reimbursement case."

V. Applicable Standards

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

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[7]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[8]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

1. Preliminary Matters

A. Scope of Review

Initially, as neither party has appealed from the IHO's determination that the district failed to meet its burden to prove that it offered the student a FAPE for the 2023-24 school year, or appealed from the award of compensatory education speech-language therapy to the student, these findings are final and binding on the parties and will not be further discussed (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]).[9]

B. Subject Matter Jurisdiction

Turning to the district's contention on cross-appeal that the IHO lacked subject matter jurisdiction over this matter, I note that subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-298; Application of a Student with a Disability, Appeal No. 25-293; Application of a Student with a Disability, Appeal No. 25-459; Application of a Student with a Disability, Appeal No. 25-242; Application of a Student with a Disability, Appeal No. 25-300; Application of a Student with a Disability, Appeal No. 25-127; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-098; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[10]

Concerning students who attend nonpublic schools, Education Law § 3602-c provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[11]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.[12]

After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago.  In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[13]

In its answer and cross-appeal, the district contends that, under the Education Law, there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services.  Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[14]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'"  (Levine v. Greece Cent. Sch. Dist., 353 Fed. App'x 461, 465 [2d Cir. Nov. 12, 2009]; quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id. at p. 7).^[15]  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO lacked subject matter jurisdiction to determine the merits of the parent's claims must be denied.

C. Legal Standard

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the student's parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year, and, as a self-help remedy, she unilaterally obtained private OT from Special Touch for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts who fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; 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. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[16]  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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "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 IHO articulated the basis for her view that the Burlington/Carter analysis was not appropriate.  While I may ultimately disagree with the IHO's view on the appropriate legal standard to apply, it is clear that she wrestled with the question.  I will address the IHO's points seriatim.  First, however, while I acknowledge that the use of the Burlington/Carter framework is adopted by analogy given that the matters here involved Education Law § 3602-c and not the IDEA, there is no direct authority from the courts as to what other standard might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to the costs of such services from the school district.  I also note that IHOs have not approached the same question with consistency.  Some have applied a Burlington/Carter framework.  Others have disagreed with the use of the Burlington/Carter standard and taken differing approaches, I have found the alternative approaches adopted insufficient to address the factual circumstances in these cases.  I address some of the reasons for this in greater detail below.

Turning to the IHO's first point in her decision, that, in her opinion, Burlington/Carter, as applied to cases such as this, improperly places the burden on the parents to establish the appropriateness of unilaterally obtained services, when Education Law § 4404 indicates that such a burden was only intended for tuition reimbursement cases (IHO Decision at pp. 6-7, citing Educ. Law § 4404[1][c]).  The IHO indicated that "[t]he plain meaning of the term tuition is the cost paid for enrollment in a school . . . [and that] the term 'placement' in IDEA cases has also meant a school, not services" (IHO Decision at p. 6).

However, State law defines tuition more broadly.  For example, Education Law § 4401(5) defines tuition as "the per pupil cost of all instructional services . . . as determined by the commissioner," and that qualifier is meant to give the Commissioner of Education discretion to determine allowable tuition rates for nonpublic schools with which the district may contract for the purpose of educating students with disabilities (Educ. Law § 4401[5] [emphasis added]; Org. to Assure Servs. for Exceptional Students, Inc. v. Ambach, 82 A.D.2d 993, 994, modified on other grounds, 56 N.Y.2d 518 [1982]).[17]  Additionally, State guidance pertaining to a school district's authority to contract for the provision of core instructional services defines "core instruction" as "those courses and instructional programs which are part of the regular educational program of the school district, and to which students are entitled as part of a free public education" including "both general and special education programs and related services which school districts are required by law to provide as part of a program of public education, and for which a certification area exists and to which tenure rights apply pursuant to Education Law and/or Commissioner's regulations" ("Updated Clarifying Information and Q and A related to Contracts for Instruction," Office of Instructional Support Educ. Mem. [Sept. 2024] [emphasis added], available at https://www.nysed.gov/memo/standards-instruction/updated-clarifying-information-and-q-and-related-contracts-instruction).  Related services, such as OT, are included in the State continuum of special education services (8 NYCRR 200.6[e]), and, therefore, as OT comprises a special education service within the State continuum, it falls within the scope of this definition of instructional services.[18]

Moreover, in fashioning appropriate relief, courts have interpreted the IDEA as allowing reimbursement for the cost, not only of private school tuition, but also of "related services" (see Burlington, 471 U.S. at 369; Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 [1st Cir. 2006]; M.M. v. Sch. Bd. of Miami-Dade Cnty., Fla., 437 F.3d 1085, 1100 [11th Cir. 2006] [collecting authority]; see also Ventura de Paulino, 959 F.3d at 526 ["Parents who are dissatisfied with their child's education . . . can, for example, 'pay for private services, including private schooling'"] [emphasis added], quoting T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 [2d Cir. 2014]).  In the present matter, the services at issue are OT, which is included in the State's definition of "special education" under related services (Educ. Law § 4401[1]-[2]).  Under these broad definitions, I do not agree with the IHO's interpretation that funding for a unilateral placement means only the costs for a student's tuition at a private school, or that Burlington/Carter analyses are specifically intended only for cases involving tuition reimbursement.

With respect to the burden being placed on the parent, in Burlington, the Supreme Court determined that if it was determined "that a private placement desired by the parents was proper under the Act," that the IDEA authorizes relief in the form of tuition reimbursement (Burlington, 471 U.S. at 369).  The Court went on to eventually hold that "[a]bsent some reason to believe that Congress intended otherwise, . . . the burden of persuasion lies where it usually falls, upon the party seeking relief" (Schaffer v. Weast, 546 U.S. 49, 57–58 [2005]).  Accordingly, placing the burden of production and persuasion on parents who seeks reimbursement or public funding of private services that they acquired from private companies without the consent of school district officials is consistent the objectives in the IDEA as well as with State law (Educ. Law § 4404[1][c]).

Moving to the second point in the IHO's proffered reasoning, the IHO indicated that this matter was distinguishable from the Burlington/Carter scenario because the type of violation by the district was different (i.e., a failure to provide services that the parties agreed to versus a disagreement over the adequacy of an IEP) (IHO Decision at p. 7).

The fact that the Burlington and Carter cases were IEP disputes, that is, disputes over the adequacy of the programming design, is of little consequence.  It just so happens that parties more often disagree about which type of programming is appropriate for a student with a disability, and the courts have explained that the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has also explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).

However, a district's delivery of a placement and/or services must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]).  Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE.  Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]).  The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington/Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).

Nor has the approach been different in cases in which the parents have already obtained unilateral services in lieu of the public services and challenge the district's capacity to implement the student's programming.  In instances where a parent has alleged nonspeculative challenges to a district's implementation or capacity to implement the provisions in the IEP, courts have found parents entitled to relief in the form of tuition reimbursement applying the Burlington/Carter standard (see, e.g., W.W. & D.C. v. New York City Dep't of Educ., 160 F. Supp. 3d 618, 628-29 [S.D.N.Y. 2016]; B.R. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 679-80 [S.D.N.Y. 2012]; A.S. v. New York City Dep't of Educ., 2011 WL 12882793, at *17 [E.D.N.Y. May 26, 2011], aff'd, 573 Fed. App'x 63 [2d Cir. July 29, 2014]).

Next, the IHO opined that the application of a Burlington/Carter framework "forces the parent into a predicament . . . contrary to the purposes of the IDEA and [S]tate law" as the parent is forced to choose between paying for unilateral services (resulting in the student's special education to no longer be free) or to forego special education services for the student (IHO Decision at pp. 7-8).  In addition, the IHO reasoned that the Office of State Review has been "inconsistent . . . about whether to apply" Burlington/Carter or apply a compensatory education analysis in these matters, as shown by Application of a Student with a Disability Appeal Number 23-065, where an "SRO used a compensatory services analysis in a Section 3602-c case" (id. at p. 8).  The IHO also indicated that the Office of State Review thereby appeared to acknowledge "that there is flexibility regarding the appropriate test to use" (id.).

The Burlington/Carter framework was adopted in these matters to provide context, standards, and reasonable oversight over the proposed remedies.  For example, although the school district could not contract with a teacher who was qualified as a special education teacher but not certified in the State of New York, a parent could do so and seek reimbursement from the district (Application of a Student with a Disability, Appeal No. 20-087).  Further, in the earlier incarnations of these cases, the parents sought direct public funding and had not taken on any liability or financial risk that is required in a Burlington/Carter framework.  Without any requirement for parents to take the financial risk for such services, the financial risk was borne entirely by unregulated private schools and agencies that have indirectly entered the fray in a very palpable way in anticipation of obtaining direct funding from the district; this has practical effects because the private school and agencies are incentivized to inflate costs for services for which parents do not have any financial liability and parents begin seeking the best private placements possible with little consideration given to what the child needs for a merely appropriate placement (or services) as opposed to "everything that might be thought desirable by 'loving parents'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998], quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]).  Further, proof of an actual financial risk being taken by parents tends to support a view that the costs of the contracted for program are reasonable, at least absent contrary evidence in the hearing record.

While acknowledging the distinctions and concerns identified by the IHO, the most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already gone out and made decisions unilaterally without input from the district and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.  This is the factual scenario present in the decision cited by the IHO for the proposition that compensatory education is the appropriate category of relief and, therefore, it is distinguishable from the present matter where the parent has already secured the private services (see Application of a Student with a Disability, Appeal No. 23-065).[19]  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, the cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85).[20]  In treating the requested relief as compensatory education, it is problematic to place the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider and obtained the services and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

In light of the above, while I acknowledge the IHO's reasoning and concerns with respect to the proper standard to review implementation and reimbursement claims for unilaterally obtained services, I nonetheless find that it was error for the IHO to not apply a Burlington/Carter analysis when reviewing the parent's claims.  Therefore, the parent's claims on appeal will be analyzed under this lens.

2. Unilaterally Obtained Services

Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.  A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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

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

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

A. The Student's Needs

Although the student's needs are not in dispute on appeal, a description thereof provides context to determine whether the parent's unilaterally obtained services addressed the student's needs during the 2023-24 school year.

According to the January 2023 IESP, results of an administration of the Wechsler Preschool and Primary Scale of Intelligence - Fourth Edition (WPPSI-4) indicated that the student's cognitive skills fell within the borderline range (verbal comprehension), low average range (fluid reasoning, working memory, processing speed) and average range (visual spatial), with a full scale IQ in the low average range (Parent Ex. B at p. 1).  The IESP also indicated that the student, who was "mostly able to communicate in Yiddish," demonstrated "mildly reduced oral language abilities" and noted that her overall intelligibility was reduced in single words and connected speech (id.).

With regard to academic functioning, it was reported in the January 2023 IESP that the student was in first grade and experiencing "significant difficulty with early reading," and that she had "only very basic pre-academic skills" (Parent Ex. B at pp. 1-2).  It was further noted that the student's math problem solving skills were approximately at the middle of pre-K level, her reading comprehension skills were approximately the end of pre-K level, and her decoding, math calculations, written language and spelling/organization skills were approximately at the beginning of kindergarten level (id. at p. 2).  The IESP indicated that the student had difficulty blending sounds, but she could read three-letter words if the teacher told her the sounds (id.).  It was also reported that the student did not remember the sounds and names of letters, and that she had poor phonics and rhyming skills (id. at pp. 2, 4).  According to the IESP, the student could identify Hebrew letters, but she had difficulty combining simple sounds in CVC combination, as well as difficulty encoding CVC words (id. at p. 3).  In writing, the IESP reflected that the student could copy directions and make correct lines but worked slowly and sometimes reversed direction (id. at p. 2).  It was also reflected that the student could copy letter forms, but she had difficulty remembering how each letter was formed without a visual (id.).  In math, the student could count 1 to 10 and identify shapes, but she struggled with simple word problems and primary skills (i.e., counting, addition and subtraction in simple form) (id. at p. 3).

With regard to language skills, the January 2023 IESP indicated that the student struggled with following directions and required repetition, as well that she had difficulty with new vocabulary (Parent Ex. B at p. 3).  The IESP further noted that she could express herself clearly most of the time, but she had difficulty asking for help (id.).  Additionally, the IESP noted that the student exhibited limited use of specific vocabulary, as well as "inadequate production of age-appropriate sentences of increased length and complexity marked by inadequate use of cohesive ties" (id. at p. 4).  The student demonstrated age-appropriate comprehension of narratives and story grammar components when retelling; however, the sequence of events was disorganized, she omitted supporting details, and she had difficulty drawing inferences and making predictions about pictures (id.).  The student's overall intelligibility was noted to be "mildly reduced" in single words and connected speech (id.).

Socially, the January 2023 IESP reflected reports that the student was well liked by her peers, that she was a "pleaser and ha[d] a calm demeanor," that she was a "highly endearing child," and that she generally got along with her siblings (Parent Ex. B at pp. 4-5).  The parent noted that the student did not know "how long to stay with each friend" (id. at p. 5).

With regard to physical development, teacher report reflected in the January 2023 IESP indicated that the student "move[d] in a slower fashion," and wrote slowly (Parent Ex. B at p. 5).  Further, the IESP stated that the student had a hard time completing multi-step assignments, rather, she could "do things one at a time, if it's told to her directly" (id.).  According to information from a January 2023 OT report included in the IESP, the student had improved oculomotor skills with saccades (back and forth eye movements), but continued to fatigue quickly, and she was making progress with keeping her place while reading without losing track (id. at pp. 5, 6).[21]  Additionally, the IESP indicated that the student struggled with visual processing skills, had poor visual motor memory and below age level visual sequential memory skills, and had difficulty with figure ground and visual discrimination skills although she had made some progress in those areas (id.).

The January 2023 CSE recommended the following management needs: extended time to complete assignments and exams; verbal prompts, repetition, and rephrasing; multi-sensory approach during instruction; reinforce reading decoding strategies; positive reinforcement; manipulatives; picture clues; leveled texts; flash cards; group work; partner work; highlighters; and preferential seating (Parent Ex. B at pp. 6-7).  In order to meet the student's identified needs, the January 2023 CSE recommended the student receive two 30-minute sessions of individual speech-language therapy per week, and two 30-minute sessions of individual OT per week (id. at p. 11). 

B. OT provided by Special Touch

As stated above, the parties are in dispute as to whether the OT provided by Special Touch was appropriate for the student for the 2023-24 school year.  As explained below, the hearing record supports the conclusion that the parent established the appropriateness of the unilaterally obtained OT from Special Touch.

The owner of Special Touch indicated in her written testimony that "[t]reatments" provided by her company for students with disabilities included "sensory integration, reflex integration, Forebrain, Brain gym, and behavior strategies in pull out sessions" (Parent Ex. G ¶ 5).  The owner indicated that she conducted informal evaluations, developed treatment plans, and communicated with parents, teachers, and other providers to help implement the OT strategies "in and out of the classroom" (id. ¶¶ 4, 6).

With respect to the student, the Special Touch owner testified that she observed "quite a few" of the student's OT sessions, had provided the student "a couple of sessions" of OT, and had done evaluations and re-evaluations of the student (Tr. pp. 9-10, 12).  The owner named the provider who delivered the student's OT services and indicated that the provider was a licensed occupational therapist who was registered with the State (Parent Ex. G ¶¶ 9-10; see Parent Ex. E).  According to the hearing record, Special Touch provided the student with two 30-minute sessions of OT per week outside of the classroom for the entire 2023-24 school year (see Tr. p. 12; Parent Exs. F at p. 2; G ¶¶ 9, 12).  Specifically, the Special Touch owner described that the student went to the "OT center" to receive her services, which took place "during the school day" (Tr. pp. 10, 12, 13).[22]  According to the owner, the sessions were scheduled "to make sure that [the student] did not miss any important work" at school, and usually took place during lunch, recess, or during a period when the teacher was reviewing material, rather than delivering new instruction (Tr. p. 14).

According to the June 2024 OT progress report, the student demonstrated difficulty with her writing, visual motor, oculomotor, and visual processing skills, and the "[m]odalities and techniques" used by the occupational therapist (therapist) with the student "consisted of forbrain, reflex integration, sensory processing, visual processing worksheets, visual processing games, tracking exercises and brain gym" (Parent Ex. F at p. 1).  Specifically, the therapist indicated that "brain gym techniques, oculo motor techniques, [and] visual motor techniques were incorporated into the visual discrimination worksheets" to "encourage development" of visual discrimination skills (id.).  Additionally, the therapist reported that the student's visual memory was significantly delayed and that she was unable to pick out the correct image when given a choice of three (id.).  The therapist reported that "[v]isual memory games, apps, and worksheets" were used to "encourage development of [the student's] visual memory skills" (id.).  The therapist further reported that the student's visual figure ground skills were below age level, specifically noting that it took her five minutes to find two out of seven simple objects within an image (id.).  Visual figure ground games, apps and worksheets were utilized to develop the student's skills in that area (id.).  The progress report indicated that the student had difficulty with form consistency and visual closure tasks, noting that she was unable to identify an image that was not correctly oriented, and identify words on the board when the teacher blocked part of the word (id.).  Worksheets and techniques were used to encourage the development of visual closure and form consistency skills (id.).  The therapist indicated that the student's visual spatial relations and visual sequential memory were age appropriate (id.).

With regard to the student's ocular motor and visual motor skills, the June 2024 OT progress report indicated that the student exhibited significant delays, and specifically noted that her visual fixation and visual pursuits skills were below age level (Parent Ex. F at p. 1).  The therapist described that the student was unable to move her eyes smoothly in any plane or for more than 15 seconds, but it was also noted that the student's saccadic eye movements and visual convergence were age appropriate (id.).  According to the owner, when implementing strategies such as providing a pen to follow rather than just giving her "examples to do," the student "didn't move her head" (Tr. p. 11).  The therapist further reported that the student's visual motor integration and visual motor memory skills were below age level, noting that she was unable to "copy a basic image when in sight and out of memory accurately," and that "[t]echniques [we]re based on spatial line puzzles" (Parent Ex. F at p. 1).  It was also reported that the student's handwriting was below age level, as she was unable to copy a basic shape out of memory, and she struggled with letter formation, sizing, and spacing due to poor visual motor memory skills (id.).  The therapist reported using "[s]patial line games, handwriting worksheets from 'handwriting without tears', and pencil grips" to "encourage development of pre-handwriting and handwriting skills" (id.).

Finally, the therapist indicated that the student struggled with sustaining attention, and needed redirection to stay on task, and reported that brain gym, sensory processing, forebrain, and reflex integration techniques were used to develop the student's attention skills (Parent Ex. F  at p. 2).  The Special Touch owner described that the student tended to "do a lot of processing out loud" and "say answers [t]hat she didn't mean to say," so "[they] ha[d] to . . . teach her how to think in her head" (Tr. pp. 10-11).  After employing certain strategies to address impulsivity and sensory needs, the owner indicated that the student gave "more productive answers" and was "less impulsive" (Tr. p. 11).

In arguing that the parent did not meet her burden to prove the appropriateness of the unilaterally obtained OT services, the district focuses on the generalities in the progress report and the Special Touch owner's testimony.  However, as set forth above, the progress report and the owner's testimony offered specificity as to the areas of need that the provider targeted and the strategies used by the provider to help the student achieve her goals.[23]

In addition, the district argues that the evidence in the hearing record does not establish that the student made progress.  While a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).  The June 2024 OT progress report indicated that the student had made progress towards goals, as her "visual spatial relations," visual sequential memory, visual saccades, and "visual [f]ixation" skills were all reported to be "now age appropriate" (Parent Ex. F at p. 2).[24]  In addition, the owner stated broadly that the student had "shown signs of progress" (Parent Ex. G ¶ 13).  While the information in the hearing record is not detailed as to the student's progress, given that it is not required evidence for a finding of appropriateness, the district's argument in this regard is not persuasive.

Finally, citing Application of a Student with a Disability, Appeal No. 24-103, the district argues that the evidence does not establish how the OT services correlated to the general education curriculum.  However, unlike a matter such as that cited by the district where further evidence is required to explain how special education teacher services are lining up with and supporting the student's ability to access the general education curriculum, here, the areas in which the OT service would assist the student in the classroom are not ambiguous.  For example, as set forth above, the January 2023 IESP stated that the student's OT needs "greatly impact[ed]s her ability to thrive in her class setting," her poor visual memory made it difficult for her to keep up with the class, she struggled to process information taught in class, and copying from the board was a struggle, which made it hard for her to keep up and remain focused throughout the lesson (Parent Ex. B at pp. 5, 6).[25]  Similarly, the OT progress report described that the student's difficulty with visual closure made it difficult for her in the classroom, and that she needed redirection to stay on task (Parent Ex. F at pp. 1, 2).  As described above, the OT services delivered by Special Touch targeted all of these areas identified as interfering with the student's functioning in the general education classroom.  To be sure, additional evidence from the nonpublic school as to whether there was improvement in the classroom would be preferable; however, given the type of service at issue, I do not find that further evidence of correlation with the general education curriculum is determinative of appropriateness.

The district does not point to any other meaningful grounds for finding the unilaterally obtained services to be inappropriate.[26]  In light of the above, I find that the parent met her burden to prove that the OT services delivered by Special Touch were appropriate to meet the student's needs for the 2023-24 school year.

3. Equitable Considerations - Excessive Costs

As discussed above, the parent contends that it was error for the IHO to find the costs of her unilaterally obtained OT to be excessive, and error to reduce the rate of OT from $300 an hour to $175 an hour.  The district alleges that it was not error for the IHO to find the rate of OT to be excessive, but asks that the rate be reduced even further, to a maximum of $125 an hour.

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"]).

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

Here, the parent entered into an agreement with Special Touch by which the agency would provide the student with two 30-minute sessions per week of OT for the 2023-24 school year at a rate of $300 per hour (Parent Ex. D at pp. 1-2).  The owner of Special Touch testified that the rate charged was $150 per 30-minute session (totaling $300 per hour), and that the student's provider received $200 per hour, with the remaining $100 dollars going toward other business expenses, such as toward the wage of a support staff member; however, she also testified that approximately 75 percent of the $100 per hour went toward a business loan (see Tr. pp. 15-17; Parent Ex. G at p. 2).

During the impartial hearing, the district submitted a report by the American Institutes for Research (AIR report) (see Dist. Ex. 1).  However, in considering the reasonableness of the rate charged by the private provider, the IHO did not find the October 2023 AIR report to be a reliable source of information without a witness to provide a foundation for the report, and further found that the report was not conclusive in finding that the reasonable market rate was $125 (IHO Decision at p. 10; see Tr. p. 4; Dist. Ex. 1).  The IHO nonetheless found that the hearing record supported a finding that the Special Touch OT provider's rate was excessive (IHO Decision at p. 10).  The IHO found that there was "minimal evidence in the [hearing] record to support what the exact break down the total amount [charged was] going toward[]," as Special Touch's owner was only able to provide "general information, and testified to a large difference between the amount charged and the amount paid to the provider" (id.).  Thus, the IHO found that an award to the parent would be based on a reduced rate for the unilaterally obtained OT, amounting to $175 per hour, rather than the $300 per hour requested by the parent (id. at pp. 10, 12).

With respect to fashioning appropriate equitable relief and its relevancy, I find that the AIR report and the district's arguments on appeal offer some basis to conclude that the rates charged by Special Touch for OT was excessive, but not all of the AIR report and its methodologies are strictly applicable to a parent's decision to unilaterally obtain private special education services from a private company like Special Touch.

First, the AIR report draws data published by the USBLS, a U.S. government agency, and it is well settled that judicial notice may be taken of such tabulations of data published by government agencies (Canadian St. Regis Band of Mohawk Indians v. New York, 2013 WL 3992830 [N.D.N.Y. Jul. 23, 2013]; Mathews v. ADM Milling Co., 2019 WL 2428732, at *4 [W.D.N.Y. June 11, 2019]; Christa McAuliffe Intermediate School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 [2019]).  I find that the wage information contained in the AIR Report from the USBLS is relevant to the question of how much special education teachers are paid in the New York City metropolitan region in a given year in which the data is published.[27]  It was not inappropriate for the AIR to use such government-published data in its report.  The data set in the New York, New Jersey and Pennsylvania region can be further limited and refined to the New York City, Newark, and Jersey City metropolitan region.  It is reasonable to find that most teachers and providers (public and private) working with special education students in New York City fall within this subset of data that is the greater metropolitan region specified in USBLS data ("May 2023 Metropolitan and Nonmetropolitan Area Occupational Employment and Wage Estimates New York-Newark-Jersey City, NY-NJ-PA," available at https://www.bls.gov/oes/current/oes_35620.htm).  Furthermore, the geographic data in this metropolitan subset does not have to be perfect in order to be sufficiently reliable for use when weighing equitable considerations.

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

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

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

While the AIR report offered by the district relies on USBLS data from May 2022 and does not include data specifically for occupational therapists, I will take judicial notice of the data for May 2023.  For occupational therapists, a range of hourly wages are reported specifically by the USBLS and will be considered below.

In my view consideration of a range of wages is consistent with the fact that some local and private employers within the metropolitan region pay less than those in the district, and it leaves room for the fact that a few employers may have paid more.  As for fringe benefits and incidental costs, private employers who offer benefits and have overhead costs are not necessarily the same as those costs cited in the AIR report, which is premised upon the district's costs, not the parent's costs.  Reliance on such costs may be permissible when the district is managing its own operations and negotiating with a labor organization, but it is not relevant to the private situation in a Burlington/Carter unilateral private placement.  Again, the USBLS provides data for indirect and fringe benefit costs for civilian, government employees and private industry expressed as a percentage of salary, and for private industry such educational services costs were 27.7 percent, which tends to show that government benefits are often slightly better (and more expensive) than those offered in private industry (see Employer Costs For Employee Compensation (ECEC) – June 2023, available at https://www.bls.gov/news.release/archives/ecec_09122023.pdf).[28]

Here, Special Touch charged $300 per hour, with $200 being paid to the student's specific provider (see Tr. p. 16; Parent Ex. D).  The USBLS indicated that in May 2023 data annual salaries for "Occupational Therapists" ranged from $34.09 in the 10th percentile, $42.11 in the 25th percentile, $54.28 in the median, $66.42 in the 75th percentile, to $76.00 in the 90th percentile.[29]  When using the USBLS data, a calculation leads to the conclusion that the $200 per hour rate paid directly to the provider for OT falls significantly above the 90th percentile of hourly wages for the metropolitan region in which the district is located.  Further, in addition to the excessive rate to the provider, the rate of $300 per hour charged by the company reflects a charge of 33.33 percent for indirect costs, which is also above the 27.7 percent indirect costs discussed above.  Therefore, I find that the rate charged by Special Touch for OT was excessive.  While I would find a reduction a rate falling between $75 and $105 (the median and 90th percentile hourly rates with the added 27.7 percent for indirect costs) to be appropriate, in this case, the district has requested that the rate be reduced to $125 per hour.  As such, while I agree with the IHO that the rate charged by Special Touch for OT was excessive and that a reduction was warranted as an equitable remedy, I find it appropriate to reduce the rate further to the district's requested $125 an hour, and will order the district to fund the costs of OT at that rate, subject to the same requirements ordered by the IHO, i.e., that the parent must submit invoices for services rendered, session notes for each service (from sessions held at least weekly), and a sworn affidavit from each provider that the services described in the invoices were actually rendered (see IHO Decision at p. 12).

VII. Conclusion

In sum, I find that it was error for the IHO to apply a compensatory education analysis rather than a Burlington/Carter analysis in reviewing the parent's claims for relief.  Applying the Burlington/Carter analysis, I find that the parent met her burden to prove that the unilaterally obtained OT provided to the student by Special Touch during the 2023-24 school year was appropriate.  The IHO did not err in finding that the rate charged by Special Touch as excessive, but I find that a further reduction based on equitable considerations is appropriate to a rate of $125 per hour, as the district requests.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated January 21, 2025, is modified by reversing that portion which directed the district to fund 1:1 OT for two 30-minute sessions per week for the student for the 2023-24 school year at a rate of $175 per hour; and

IT IS FURTHER ORDERED that the IHO's decision, dated January 21, 2025, is modified to provide that the district shall fund the costs of up to two 30-minute sessions per week of OT delivered to the student by Special Touch at a rate not to exceed $125 per hour, subject to the parent presenting to the district receipt of : (1) invoices for services rendered, (2) session notes for each service (at least weekly session notes), and (3) a sworn affidavit from each provider that the services described in the invoices were actually rendered.