New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588347 - NYC: 239528

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 21, 2023

For the Student:

REDACTED (“Parent’s Counsel”), REDACTED (“Parent”), REDACTED (“Service Provider Financial Director”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on September 29, 2022, (Ex. A).^[2] In the DPC, the Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) on an equitable basis for the 2022-23 school year. (Ex. A).

I was appointed on December 21, 2022. On January 5, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). Pendency was raised in this matter. (Ex. A-3). The parties originally believed a resolution was likely, but they were unable to agree on the rate for services, so at a status conference on January 31, Parent’s Counsel requested a hearing date and that pendency be decided as part of the final order. (See SC Transcript 1.31.23). The DOE made no objection to the Parent’s request for pendency at that time. (Id.). At the January 31 status conference, the parties jointly requested and were granted an extension to prepare witness affidavits for hearing. (See SC Transcript 1.31.23; Order of Extension). A hearing date was set for February 21, with disclosures due on February 13.

On February 21, 2023, the virtual hearing was held. It was a closed hearing. DOE Representative and Parent’s Counsel were both present. The DOE offered no exhibits or witnesses at the hearing. (Tr.). ^[3] Parent’s Counsel entered five exhibits (A-E) into evidence without objection, including two direct testimony affidavits. (Tr.). The Parent’s two witnesses gave direct testimony by affidavit (Ex. D; E) and appeared live for cross-examination. Parent’s first witness was the Service Provider Financial Director. Parent’s second witness was the Parent. The parties gave oral closing arguments on the record. (Tr.). The record was closed on the date of this decision.

JURISDICTION

The due process hearing (“DPH”) was held, and a decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law §§ 3602-c, 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The student is currently classified as a student with a speech or language impairment. (Ex. B-1). The student is now REDACTED years old and has been attending parochial school (“the Parochial School”). (Ex. A-1; B-12). The student exhibits difficulty with receptive and expressive language. (Ex. A-3). The DOE held a review meeting of the committee on special education (“CSE”) and developed an individualized education services program (“IESP”) on September 16, 2022, which recommends special education teacher support services (“SETSS”) (direct, group service three times per week), as well as related services of speech-language therapy (“SLT”) (one individual session and one group session per week) and occupational therapy (“OT”) (two individual sessions per week). (Ex. A-3; B-9). Parent contends that they were forced to find a private provider for the necessary SETSS, due to the DOE’s inaction, and were unable to find one willing to work at the DOE’s rates. (Ex. A-3). The Parent requests direct funding for three sessions per week of individual SETSS by the Parent’s chosen service provider (“Service Provider”), at an enhanced rate of $195 per hour, for the entirety of the 2022-23 10-month school year. (Ex. A-3-4).^[4] Parent additionally requests that pendency be ordered, including the enhanced rate, retroactive to the filing date of the DPC. (Ex. A-3; Tr.). Parent contends that pendency lies in the 9/16/22 IESP. (Ex. A).

ISSUES

At the hearing, the DOE conceded that 1) the student is entitled to equitable services for the 2022-23 school year, 2) the student’s program, as set out in the 9/16/22 IESP, is appropriate for the student, 3) the 9/16/22 IESP is the last-agreed-upon program for the student, 4) the DOE failed to implement the program in that the mandated SETSS and related services were not provided to the student, and 5) the Service Provider is appropriately qualified to provide the mandated SETSS to the student. (Tr.). The DOE argued at the hearing that the requested enhanced rate is not appropriate.^[5] (Tr.). The DOE also argued for the first time at the close of the hearing (after closing arguments were concluded) that the student is not entitled to pendency services because the applicable regulations do not explicitly provide for it. (Tr.). Accordingly, the only issues in dispute are the reasonableness of the enhanced SETSS rate and whether or not the student is entitled to pendency.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact. ^[6] The DOE has conceded that the student is entitled to equitable services and that they failed to implement the student’s IESP for the 2022-23 school year. (Tr.). The Parent was present at the 9/16/22 CSE meeting. (Ex. B-12). The 9/16/22 IESP provides for three periods per week of direct group SETSS. (Ex. B-9). When the DOE failed to arrange for the student’s equitable services, the Parent was forced to look for their own provider. (Ex. A-3; D-1-2). They were unable to find one willing to work at the DOE’s published rates. (Ex. A-3; D-1-2).

On September 20, 2022, a contract was executed between the Parent and the Service Provider to provide three periods per week of SETSS to the student, at an hourly rate of $195, up to and including the date that Parent provides notice of their intention to cancel the services. (Ex. C-1). The Service Provider charges the student an hourly rate of $195 for individual SETSS. (Ex. C-1; Tr.). This rate includes the cost of the Individual Provider7 and their supervisors, a large office staff, rent, supplies, other miscellaneous overhead, cost of evaluations, training and other materials, and “high interest loans” due to the DOE’s delay in payment. (Ex. E-1; Tr.). The Service Provider generally charges between $175-195 per hour for individual SETSS, based on the “overhead for each case.” (Tr.). The Service Provider Financial Director was unaware of any additional overhead there might be for this student that would justify the higher rate. (Tr.). The Service Provider does provide group SETSS for some students but has been providing individual SETSS for this student. (Tr.). Generally, the Service Provider would charge 60-65% of their individual SETSS rate for group SETSS. (Tr.). There is no evidence in the record regarding the reasonable market rate for group or individual SETSS in New York City, and the Service Provider Financial Director had no knowledge of any other providers’ rates. (Tr.). The Service Provider is able to continue providing SETSS to the student for the entire 2022-23 school year. (Ex. E-2).

LEGAL FRAMEWORK

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year, 8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010). For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

7 The Service Provider Financial Director did not know the Individual Provider’s exact rate but testified that they generally range between $80-100 per hour. (Tr.). He also did not know exactly what teaching certifications the Individual Provider has but stated that he believes they have the required special education certification because the Service Provider confirms all providers with the DOE before hiring to ensure that they are all appropriately qualified. (Tr.). Although the Service Provider Financial Director has a financial interest in the company (Tr.), I found him to be credible but not well informed.

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“prongs”) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] 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.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their prong two burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

DUAL ENROLLMENT

Pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident nonpublic school students are entitled to an IESP developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. 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). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law §3602-c(2). Then, the district of location's CSE must review the request 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)(l).

Special education services under an IESP must be provided on an equitable basis as compared the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to Educ. Law §4404, to challenge an IESP.

State law requires the District to locate and assign publicly-provided teachers for all duallyenrolled students. Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009 (available at http://www.p12.nysed.gov/resources/%20contractsforinstruction/documents/contractsforinstruction2009. pdf) and Q and A related to Contracts for Instruction, June 2010 (available at http://www.p12.nysed.gov/%20resources/contractsforinstruction/documents/contractsforinstruction2010 covermemo.pdf) (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here). The DOE’s widespread abrogation of their duty to provide equitable services has been discussed at length in several recent State Review Officer decisions. See, e.g., Application of a Student with a Disability, Appeal No. 21-119 (Aug. 6, 2021)(collecting cases). Generally, it appears that the DOE has been relying on parents to obtain the services of independent providers to implement SETSS and related services contained in a child’s IESP, and then often disputing the rate of such services at due process hearings. See id.; Application of a Student with a Disability, Appeal Nos. 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087.

PENDENCY

The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.^[8] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. ^[9]

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.^[10] Although not defined by statute, the phrase “then current placement” has been found to mean either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”); (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP. ^[11] Courts have generally agreed that a student’s “then-current educational placement” refers to a student’s last-agreed-upon educational program (and services) before the parent requested the due process hearing. ^[12]

The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed”^[13] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.”^[14] However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement.^[15] The regulations provide that an SRO decision that “agrees with the parents that a change of placement is appropriate . . . must be treated as such an agreement.”^[16] Similarly, an agreement is implied by law where an unappealed FOFD from an IHO finds that a unilateral placement is appropriate. ^[17]

IESP services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. Per a New York State Education Department (“SED”) guidance document: ^[18]

“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. … Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student . . . ”

ANALYSIS AND CONCLUSIONS OF LAW

Although there is no evidence in the record of the Parent’s timely request for equitable services, the DOE has conceded the student’s entitlement to them. Furthermore, it is undisputed that the DOE failed to implement an IESP for the student for the 2022-23 school year, despite their agreement that the student is entitled to equitable services. The District provided no evidence to suggest that it even attempted to arrange for the delivery of equitable services here. Thus, the Parent was forced to arrange for services on their own. In doing so, they unilaterally chose a provider and entered a service contract. I agree with the analysis in Application of a Student with a Disability, Appeal No. 21-119, and many of the above SRO decisions, which liken these situations to tuition reimbursement cases; the District can be made to pay for special education services that a parent has paid or become legally obligated to pay, even though the District would not have been able to contract for such services directly. Accordingly, I will utilize the three-prong Burlington/Carter analysis in deciding this issue.

As for prong 1, the District is not contesting that it failed to implement the IESP for the current school year. So, they have conceded that they cannot meet their prong 1 burden. I find that the District’s failure to implement the student’s 9/16/22 IESP constitutes a denial of the student’s equitable entitlement to special education services for the 2022-23 school year.

As for prong 2, I find that the Parent has met their burden, with one exception noted below. At the hearing, the District did not contest the appropriateness of the SETSS mandated in the 9/16/22 IESP, nor did they contest the qualifications of the Service Provider. Furthermore, the District did not object to the qualifications of the Individual Provider, and I find that they are appropriately-qualified to provide the relevant services. However, there is no support in the record for the appropriateness of substituting individual SETSS for the group SETTS that are mandated in the student’s IESP. The parties have both agreed that the 9/16/22 IESP is appropriate for the student. That IESP provides for three periods per week of direct group SETSS. The Service Provider Financial Director who testified during the Parent’s case had no knowledge of the student’s clinical needs. He did not provide any testimony as to why the Service Provider unilaterally decided to substitute individual SETSS for group SETSS and the Service Provider does have the capability of providing group services. The only evidence in the record as to the student’s needs is the IESP itself, which recommends group SETSS. Accordingly, I find that the Parent has met their burden of showing the appropriateness of the Service Provider to provide three weekly sessions of group SETSS for the student.

To the extent that the Parent has met their prong 2 burden, the only issue left to be addressed is prong 3 – whether the equities favor reimbursement and/or direct payment to the Service Provider for the contracted services. The Parent participated in the CSE meeting and cooperated with the DOE. They are financially obligated to pay $195 per hour for the services already received. However, I find the cost of the requested enhanced rate to be excessive and find that it should be reduced going forward.

Here, the Individual Provider is paid somewhere between $80-100 per hour, and the Service Provider is charging approximately double that amount. While it is reasonable to include some overhead costs in the total rate, this amount is excessive. That is especially true given that 1) there is no evidence in the record that this particular student required additional overhead which would account for charging $195 per hour rather than the $175 that the Service Provider charges in other cases, 2) there is no evidence in the record establishing any clinical (or other) reason for the change from the mandated group SETSS to individual SETSS, and 3) the Service Provider Financial Director testified that they would charge significantly less (60-65%) than the individual rate for group SETSS. Furthermore, the Service Provider Financial Director had no information about market rates. Assuming the higher end of the range of percentages of the highest potential individual rate (65% of $195), that would still only be $126.75 per hour for group SETSS, which I find to be much more reasonable than the requested rate.

That being said, apart from the reasonableness of the rate, the equities here favor the Parent. They should not be denied funding for the services for which they are already finically liable, even in excess of the amount discussed above. Were it not for the DOE’s inaction, the Parent would not be in this position. Accordingly, the DOE should pay in full for all SETSS already provided between 9/20/22 (the date of the service contract) and ten days from the date of this order (to allow the Parent to provide notice to the Service Provider that they need to change from individual to group SETSS). After ten days from this Order (March 10), the DOE shall directly fund the student’s group SETSS at a provider of the Parent’s choosing, at a rate not to exceed $126.75 per hour.

As to pendency, I disagree in some respects with both parties’ positions on pendency. Ultimately, it is undisputed that the student’s last-agreed-upon program lies in the 9/16/22 IESP. I find no merit in the DOE’s argument that privately placed students are not entitled to pendency. To deny an IESP student pendency would be to deny “services that a public school student would receive based solely upon his or her status as a nonpublic student,” which is the SED has warned against. Moreover, Educ. Law §4404(4) explicitly contains a provision concerning pendency. In that 3602-c identified the state’s due process statute (Educ. Law §4404) for the adjudication of claims, it is unreasonable to interpret 4404’s silence to IESPs as precluding access to certain provisions – namely pendency here – of the statue as a matter of law. On the other hand, I find no basis in the record for the Parent’s contention that pendency should include an enhanced rate. Pendency determines “the general type of educational program,” it does not specify a provider or a rate unless pendency is based on an explicit agreement of the parties that includes those provisions. Where, as here, pendency lies in an IESP, the terms of the IESP control. Here, those terms include only the amount and type of services [direct group SETSS three times per week, SLT (1x30x1 and 1x30xgroup), and OT (2x30x1)], and not the specific provider or rates. For these reasons, I find that the student’s 9/16/22 IESP establishes the student’s current educational placement for the purposes of pendency.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.

DECISION AND ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. The New York City Department of Education shall provide during the pendency of this matter, retroactive to the filing date of the DPC (9/29/22), the following program and related services in according with the student’s 9/16/22 IESP: a) SETSS, direct group service three periods per week in a separate location; b) SLT, 30 minutes per week on an individual basis in a separate location; c) SLT, 30 minutes per week on a group basis in a separate location; and d) OT, two 30-minute individual sessions per week in a separate location; it is further

2. ORDERED that the New York City Department of Education shall (to the extent not previously funded through pendency) provide direct payment to the Service Provider, at a rate of $195 per hour, for 3 periods per week of direct individual SETSS provided between 9/20/22 and 3/10/^[23] within twenty days of submission of invoices for the SETSS rendered to the student during that specified period; and it is further

3. ORDERED that the New York City Department of Education shall provide direct payment to a service provider of the Parent’s choosing, at a rate not to exceed $126.75 per hour, for 3 periods per week of direct group SETSS provided to the student between 3/10/23 and the end of the 2022-

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 09/29/22 6 pages

B. IESP 09/16/22 12 pages

C. Parent Contract 09/20/22 1 page

D. Direct Testimony Affidavit of Parent 02/05/23 2 pages

E. Direct Testimony Affidavit of Service Provider Financial Director 01/08/23 2 pages

DOE’S EXHIBITS

- - - -

IHO’S EXHIBITS

- - - -

Footnotes

[2] Exhibits shall be referred to as follows: Ex., followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1).

[3] Unfortunately, the transcript was not yet complete at the time of this decision. According, any references to the hearing transcript will be referred to simply as “Tr.” with no accompanying page number.

[4] Although the DPC also requests related service authorizations for the mandated SLT and OT, Parent’s Counsel stated at the hearing that these were already received and were no longer at issue. (Tr.). Accordingly, they will not be discussed further herein.

[5] Specifically, the DOE argued that $195 is not a reasonable market rate and that since the Service Provider has accepted a rate of $175 in other cases, that is the most that should be paid. (Tr.).

[6] The facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.

[8] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.

[9] Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see, Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].

[10] Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906.

[11] Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014][holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987].

[12] See Dervishi, 653 Fed. Appx. at 57-58; Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71.

[13] Concerned Parents, 629 F.2d at 753, 756.

[14] T.M., 752 F.3d at 171.

[15] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].

[16] See 34 C.F.R. § 300.514(a) and (c); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004].

[17] See Bd. of Educ. v. Schutz, 290 F.3d 476,103 LRP 37743 (2d Cir. 2002); Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 52 IDELR 1 (9th Cir. 2009); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 28 IDELR 194 (5th Cir. 1998); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 24 IDELR 839 (3d Cir. 1996).

[18] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.

[23] 10-month school year, to be paid within twenty days of submission of provider invoices. SO ORDERED. DATED: February 28, 2023 Leah Martin, Esq._(Signed Electronically)_ Impartial Hearing Officer