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 district) appeals from a decision of an impartial hearing officer (IHO) which ordered it to fund the costs of respondent's (the parent's) daughter's private special education services delivered by AIM Educational Services (AIM) for the 2023-24 school year.  The appeal must be sustained.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The hearing record in this matter contains little information.  A CSE convened on February 1, 2023, found the student eligible for special education, and developed an IESP with a projected implementation date of February 15, 2023 (Parent Ex. B).[1]  The IESP indicated that the student attended tenth grade in a nonpublic religious school (id. at p. 1).  The CSE recommended that the student receive six periods per week of group special education teacher support services (SETSS) and two 30-minute sessions per week of group counseling, with both services being provided in Yiddish (id. at p. 7).  The IESP reflects that for the 2023-24 school year the student was "Parentally Placed in a Non-Public School" (id. at p. 10).

In a due process complaint notice dated October 24, 2023, the parent, through an attorney, alleged that the district denied the student a free appropriate public education (FAPE) and failed to provide appropriate equitable services to the student for the 2023-24 school year (Parent Ex. A).  In particular, the parent contended that the district "failed to locate an adequate SETSS provider for [the student] " (id. at p. 2).  The parent indicated she had found a provider to deliver the services but "at a rate higher than the going [district] rate" (id.).  For relief, the parent requested an "order for the student with six (6) periods per week of one on one enhanced rate SETSS services" and "[a]llowance of prospective payment to [the student]'s SETSS provider/agency for six (6) hours a week of one on one enhanced rate SETSS services for the 2023-2024 School Year," and related services authorizations (RSAs) for the other services outlined in the student's most recent IESP (id. at p. 3).

Also on October 24, 2023, the parent executed a service contract with AIM, [2]  for the company to deliver six periods per week of SETSS to the student at a specified rate for the 2023-24 school year (Parent Ex. C).[3]

In an email dated November 13, 2023, with the subject line "omnibus scheduling First Step Advocacy," an IHO with the Office of Administrative Trials and Hearings (OATH) listed 42 case numbers and informed the parties that the matters were "slated for Omnibus settlement conferences and to have hearings scheduled" (IHO Ex. I at p. 1).  The IHO established conference and hearing dates in December 2023 (id.).  The email further set forth the IHO's hearing procedure practices and expectations of the parties' conduct with regard to the impartial hearing (id. at pp. 1-7).

After requests for specific extensions of the timeline were granted by the IHO, an impartial hearing convened on February 2, 2024, where both parties were represented by counsel (see Tr. pp. 1-11).  The IHO admitted the exhibits offered by the parties into evidence, both parties confirmed that they would not call any witnesses, and the parties presented combined opening and closing arguments (Tr. pp. 4-11).

For its combined opening and closing argument, the district requested that the parent's request for relief be denied as the parent did not present sufficient documentation or evidence to "support their request for services, proof that services are taking place, or that the hourly rate is reasonable" (Tr. pp. 5-6).  According to the district, there was no evidence that any services were actually implemented by AIM such as invoices, affidavits, witnesses, or proof of payment (id. at p. 6).

For the parent's combined opening and closing statement, the parent's attorney asserted that there was no disagreement that the last IESP created by the district was the February 2023 IESP and that the district recommended six periods of SETSS per week as well as counseling for the student (Tr. p. 6).  The parent's attorney further asserted that the district failed to implement the student's IESP for the 2023-24 school year so the parent had to "try to implement the exact same services to the best of their ability" and executed a contract with AIM to provide the student with SETSS (id. at pp. 6-7).  According to the parent's attorney, the matter was "not a tuition unilateral placement case" and, therefore, there was no burden on the parent to prove the appropriateness of the private services or of the rate charged by AIM (id. pp. 7-10).

In a decision dated March 1, 2024, the IHO found that there was "no dispute that [the] Student [wa]s entitled to services pursuant to the IESP," the district "had the obligation to provide services to Student in conformity with the IESP," and, "[i]n failing to do so, the [district] failed to provide [the] Student with services on an equitable basis" (IHO Decision at pp. 6, 7).  The IHO found that the Burlington/Carter analysis was not applicable, that it was inequitable to require the parent to prove that the services she obtained from AIM were appropriate when the district failed to implement the services listed in the IESP, that instead the district had the obligation to prove that the services from AIM were inappropriate, and that the district failed to do so (id. at pp. 3-5, 7).  Accordingly, the IHO ordered the district to, upon submission of an invoice with an affidavit "attesting to the provision of the services," "pay a licensed/certified provider of the Parent's own choosing for the administration of 6 1-hour periods of SETSS in a group in Yiddish per week for the 10-month 2023-2024 school year" at a rate not to exceed the rate set forth in the contract in evidence (id. at p. 8).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in declining to assess the appropriateness of SETSS purportedly delivered to the student by AIM during the 2023-24 school year.  The district argues that the parent presented no evidence regarding when, where, how, by whom, or even if the unilaterally obtained services were delivered, how the services addressed the student's unique needs, or whether the student made progress.

The parent did not file an answer to respond to the district's appeal.

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]).[4]  "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 [individualized education program (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.).[5]  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

A. Scope of Review

Initially, I note that the district did not appeal from the IHO's determination that the district failed to provide the student with a FAPE and services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district (IHO Decision at pp. 3, 6).  Accordingly, that determination will not be reviewed on appeal and has become final and binding on the parties (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]).

B. 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 services from AIM 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]).[6]  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.  I will address the IHO's points seriatim.  First, while I acknowledge that the use of the Burlington/Carter framework is utilized here in matters that are related to an IESP arising under Education Law § 3602-c rather than an IEP under IDEA, there is no caselaw from the courts as to what other, more analogous framework might be appropriate when a parent privately obtains special education services without consent that a school district failed to provide pursuant to an IESP and then retroactively seeks to recover the costs of such services from the school district.  I also note that IHOs have not approached the question with consistency.  While the IHO in this matter may disagree with the use of the Burlington/Carter standard, I find the alternative approaches adopted by some other IHOs insufficient to address the factual circumstances in these cases.  I address some of the reasons for this below.

The IHO in this matter distinguished the Burlington/Carter scenario factually based on the type of violation by the district (i.e., a failure to implement an IESP that the parents agreed with versus failure to develop an appropriate IEP) and the type of privately-obtained relief (i.e., services versus private school tuition) (IHO Decision at pp. 4-5).

As for the underlying violation, 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 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; 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 F. App'x 63 [2d Cir. 2014] [minor possible discrepancy between the 6:1:1 staffing ratio called for in the student's IEP and the possible 12:1:2 staffing ratio during gym class three times per week is not material when the student would have been accompanied to gym by his own paraprofessional]).

The IHO quotes the Supreme Court's decision in Burlington that "[t]he Act was intended to give . . . children [with disabilities] both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives" (IHO Decision at p. 4, quoting Burlington, 471 U.S. at 372).  However, the IHO takes the statement out of context because the Supreme Court made this statement when holding that a parent did not waive the right to tuition reimbursement by moving the student to unilateral placement during the pendency of the proceedings (Burlington, 471 U.S. at 372).  The Court did not find that placing a burden on the parent to prove appropriateness of a unilateral placement was defeating the objectives of the statute; to the contrary, the 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 (id. at 369).  The Court went on to eventually hold in a later decision 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, a state law 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 does not offend the objectives in the IDEA.

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 had not taken any 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 an 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.

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 (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 the burden to prove the adequacy of the services that the parent privately obtained without the consent of school district officials.  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 ensure appropriate delivery of services to the student in question.  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, these 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 (see 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 at 76; R.E., 694 F.3d at 184-85).  In a case such as this one, it is problematic to place the burden of production and persuasion on the district to establish appropriate relief when the parent has unilaterally selected the private company and purportedly obtained the services and is, therefore, the party in whose custody and control the evidence resides. Therefore, the parent has the burden to establish whether the private company, AIM, provided appropriate special education services to the student.

Based on the foregoing, I find that the IHO erred by applying the incorrect legal standard to assess whether the parent was entitled to the relief sought.

C. SETSS Delivered by AIM

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 Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]).  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. v. Bd. of Educ. of Hyde Park, 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).  When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see 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 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).

The only description of the student's needs is set forth in the February 2023 IESP (Parent Ex. B).  The IESP included information from a November 11, 2022 SETSS report which noted that, academically, the student had throughout the years made much progress in reading, writing, and executive functioning, although she still had difficulty in math, science and reading comprehension (id. at p. 1).[7]  The IESP indicated that in the past the student had difficulty keeping up in the classroom; however, after much work learning how to distinguish important from unimportant information and how to stay focused, the student was able keep up during lesson time, but with limited comprehension (id.).  The IESP stated that with 1:1 guidance the student was able to make sense of the lessons taught in the classroom (id.).  In terms of reading, the IESP indicated that the student was "doing well in the area of reading accuracy and fluency" but read slowly, and that her reading comprehension skills were below grade level (id.).  The IESP noted that the student was being taught comprehension strategies such as self-questioning, gauging comprehension, and relating text-to-self and was also learning background knowledge, working on finding clues in text and finding the subject sentence of a paragraph (id. at p. 2).  With respect to mathematics, at the time the IESP was created, the student had passed her algebra regents, but was struggling with geometry (id.).  The IESP indicated that the student was missing basic background knowledge and her teachers were working on developing her vocabulary for basic shapes and angles so that she could understand geometry concepts and theorems (id.).  Through scaffolding, modeling and 1:1 instruction, the student was starting to gain some understanding of geometry (id.).  With respect to writing, the student's skills were noted to be "somewhat to the lower average end" and while some practice had been done using graphic organizers, since writing was a "smaller struggle[] not much time" was spent on the student's writing weaknesses (id.).  The IESP noted that the student had testing anxiety, and as a result her test scores did not reflect her true abilities (id.).  To address the student's management needs, the CSE recommended the use of verbal and visual cueing, positive reinforcement, preferential seating, repetition, chunking and simplification of directives, small group instruction, graphic organizers, verbal negotiation/preparation, modeling, and scaffolding (id. at pp. 3-4).

Despite the foregoing information about the student's needs, the only evidence in the hearing record regarding the SETSS allegedly delivered to the student during the 2023-24 school year is the contract between the parent and AIM, which indicated that AIM "intend[ed] to provide" the student with six periods per week of SETSS (see Parent Ex. C).  The hearing record includes a teaching certificate of an individual, but no indication of whether any services were delivered by this individual to the student (Parent Ex. D).  Neither the teacher or other representative from AIM testified at the impartial hearing.  There is no documentation that the services were delivered to the student.  For example, there is no progress report, service records, or invoices.  Under these circumstances, I find the parent did not establish that AIM provided specially designed instruction and related services that were appropriate to address the student's unique needs under the totality of the circumstances.

VII. Conclusion

Having determined that the parent failed to establish the appropriateness of any privately obtained special education services from AIM for the student for the 2023-24 school year, the necessary inquiry is at an end and there is no need to reach the issue of whether equitable considerations support an award of district funding or reimbursement for the costs thereof (see M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 [2d Cir. 2000]).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated March 7, 2024, is modified by reversing that portion which ordered the district to pay a provider of the parent's choosing for the costs of delivering six weekly one-hour periods of SETSS in a group, in Yiddish, for the 2023-24 school year at a specified rate.