STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-035
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, Esq.
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 the decision of an impartial hearing officer (IHO) which did not rule on her request for pendency services for her daughter during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student for the 2024-25 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 parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.
The student has been parentally placed in a nonpublic school (Parent Exs. D at p. 1; E). The CSE convened on February 14, 2024, for an annual review, the CSE found the student remained eligible for special education as a student with a speech or language impairment and developed an IESP for the 2024-25 school year with a projected implementation date of February 16, 2024 (Parent Ex. D at pp. 1, 8-9, 11).[1] The February 2024 CSE recommended 10-month services consisting of five periods per week of direct group special education teacher support services (SETSS), two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), one 30-minute session per week of group OT, and one 30-minute session per week of group counseling services (id. at pp. 8-9).
On May 31, 2024, through her attorney, the parent notified the district of the student's continued parental placement in a nonpublic school and requested equitable services for the student for the 2024-25 school year (Parent Ex. E at pp. 1-2). On June 6, 2024, the parent signed a contract with LEAD Remedial for the 2024-25 school year (Parent Ex. F at p. 3). Pursuant to the contract, LEAD Remedial "intend[ed] to provide" the student with SETSS or special education itinerant teacher (SEIT) services at a rate of $195 per hour; speech-language therapy at a rate of $250 per hour; and OT at a rate of $250 per hour for the 2024-25 school year (id. at p. 2). The contract expressly stated it was the parent's understanding that the student "[wa]s entitled to receive funding or reimbursement from the [district]" for ten hours per week of individual, direct SEIT services, two 30-minute sessions per week of individual speech-language therapy, and three 30-minutes sessions per week of individual OT per week "on a 12-month basis" (id. at p. 1). In a 10-day written notice letter dated June 27, 2024, the parent notified the district of her disagreement with the recommendations set forth in the February 2024 IESP, of her intention to unilaterally enroll the student at the nonpublic school, and to seek public funding for the cost of the student's attendance for the 12-month 2024-25 school year (Parent Ex. C at pp. 2-3).
A. Due Process Complaint Notice
In a due process complaint notice dated July 5, 2024, the parent alleged the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year and, as relevant to this appeal, invoked the student's right to pendency based on an unappealed May 6, 2024 IHO Decision (Parent Ex. A at pp. 2-3-4; see Parent Ex. B).[2] The parent attached a "Pendency Form" to her due process complaint notice, which outlined the basis for pendency and the requested pendency program (id. at p. 5). Specifically, the parent alleged the student's pendency services consisted of ten hours per week of individual, direct SETSS, two 30-minute sessions per week of individual speech-language therapy, and three 30-minute sessions per week of individual OT, to be delivered on a 12-month basis (id. at p. 5). The district submitted a due process response dated July 12, 2024, which denied the parent's allegations and challenged the appropriateness of the relief sought by the parent.
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO from the Office of Administrative Trials and Hearings (OATH) on August 5, 2024 and concluded on the same day (see Tr. pp. 1-44). The parent continued to assert that pendency laid with the unappealed May 6, 2024 IHO Decision (Tr. p. 23). The district challenged the parent's assertions regarding pendency (Tr. pp. 26-27). Specifically, the district argued that because the student was parentally placed in a private school pursuant to § 3602-c of the Education law, not the IDEA, the student was not entitled to pendency. (Tr. p. 26).
In a decision dated December 10, 2024, the IHO found that the parent's claims related to the 10-month 2024-25 school year were not ripe and dismissed them without prejudice (IHO Decision at p. 10). The IHO also denied the parent's request for a bank of compensatory services and funding of the recommendations made in the unappealed May 6, 2024 IHO Decision for the 12 month 2024-25 school year (id. at p. 10). The IHO did not address the parent's pendency claims (see IHO Decision).
IV. Appeal for State-Level Review
The parties' familiarity with the issues in the parent's request for review, the district's answer, and the parent's reply thereto is also presumed and, therefore, the detailed allegations and arguments raised by the parties on appeal will not be recited. The crux of the dispute on appeal is whether the IHO erred in failing to address the parent's pendency request, and if so, what services constituted the student's pendency services.
V. Applicable Standards--Pendency
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[3] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197[OSEP 2007]).
VI. Discussion
Neither party has appealed from the IHO's finding that the student was not entitled to 12-month services (IHO Decision at p. 9). Nor did the parties challenge the determination that the 10-month IESP program claims were not ripe for appeal at the time of filing the due process complaint notice or that the parent did not sufficiently request 12-month services (IHO Decision at pp. 9-10). Accordingly, these findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
During the impartial hearing, the parent asserted that the student was entitled to pendency services based on the unappealed May 6, 2024 IHO decision and that the district had failed to implement pendency services (Tr. pp. 13-14, 15). The parent further requested compensatory education for unimplemented pendency services (Tr. p. 16). The district argued that the "most recent IESP developed for th[e] student" was "not effectively being challenged" in the parent's due process complaint notice (Tr. p. 24). The district further asserted that the student was parentally placed and not eligible for pendency (Tr. pp. 26-27). The IHO did not address pendency in her decision and stated that she had "reviewed the parties' remaining contentions and f[ou]nd them to be either unnecessary to this decision, without merit, beyond [her] jurisdiction, or without sufficient basis in the record for a finding" and that "any relief not specifically discussed in this decision [wa]s denied" (IHO Decision at p. 10).
In her request for review, the parent alleges that the IHO erred in failing to find that the student was entitled to pendency services based on the unappealed May 6, 2024 IHO decision and that the district was required to fund the student's privately obtained services as pendency. The district continues to argue on appeal that, as a nonpublic school student, the student is not entitled to pendency because nonpublic school students are not automatically entitled to the continuation of equitable services from year to year. Finally, the district claims that if the student was entitled to pendency, then the district should be permitted to provide pendency services directly and that "enhanced rates" should not be awarded.
Here, I find that the IHO erred in failing to address the student's pendency entitlements. It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906). I am not persuaded by the district's argument that the student is not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c. Education Law § 3602-c provides for review of IESPs pursuant to § 4404, and Education Law § 4404 provides that a student shall remain in his or her then-current educational placement "[d]uring the pendency of any proceedings conducted pursuant to" Education Law § 4404 (Educ. Law § 4404[4][a]; Application of a Student with a Disability, Appeal No. 17-034). The New York Court of Appeals confirmed that
[New York State Education Law §] 3602–c authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public school programs…The statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school.
(Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]).
The district does not dispute, to the extent the student is entitled to pendency, that pendency for purposes of these proceedings lies in the unappealed May 6, 2024 IHO decision, as argued by the parent. Rather, the district argues that it should be afforded the opportunity to implement pendency, as opposed to a private provider. However, the May 6, 2024 IHO decision specifically awarded funding by the district for services provided on a 12-month basis by Lead Remedial, upon proof of delivery, as follows: "SETSS, Individual, Direct, English 10 hours per week at a rate not to exceed $150 per hour. Speech and Language Therapy, Individual, English 2 x 30 per week at a rate not to exceed $200 per hour. Occupational Therapy, Individual, English 3 x 30 per week at a rate not to exceed $200 per hour" (Parent Ex. B at p. 20). While the parent similarly focuses on the frequencies and duration of the pendency services, as well as the rates, both the district and parent are reminded that the May 6, 2024 IHO Decision awarded services specifically provided by Lead Remedial and, neither party having appealed that decision, those specific services delivered by that particular agency constitute the parties' current agreed-upon placement for the student for purposes of pendency (see generallyVentura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531-32 [2d Cir. 2020]. Moreover, such pendency runs from the time of the filing of the due process complaint notice on July 5, 2024, through the conclusion of the current proceeding (see M.R. v. Ridley Sch. Dist., 744 F.3d 112, 125 [3d Cir. 2014] [finding that school districts must continue funding a student's pendency placement until final resolution of all IDEA proceedings, including appeals]). Accordingly, during the pendency of this proceeding, as per the unappealed May 6, 2024 IHO Decision, the student is entitled to receive funding from the district, upon proof of delivery, for 12-month services consisting of ten hours per week of individual, direct SETSS, two 30-minute sessions per week of individual speech-language therapy, and three 30-minute sessions per week of individual OT provided by Lead Remedial at the rates stated therein (Parent Ex. B at p. 20).
VII. Conclusion
In summary, the student is entitled to pendency as set forth in the unappealed May 6, 2024 IHO decision.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's December 10, 2024 decision is hereby modified to find that the student is entitled to the services set forth in the unappealed May 6, 2024 IHO decision as pendency; and
IT IS FURTHER ORDERED that the district is directed to fund, upon proof of delivery, the student's pendency services pursuant to the unappealed May 6, 2024 IHO decision from the date of the due process complaint notice until the conclusion of these proceedings as follows: 12-month services provided by Lead Remedial consisting of ten hours per week of individual, direct SETSS at a rate not to exceed $150 per hour, two 30-minute sessions per week of individual speech-language therapy at a rate not to exceed $200 per hour, and three 30-minute sessions per week of individual OT at a rate not to exceed $200 per hour.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] In her July 5, 2024 due process complaint notice, the parent alleged that the district failed to recommend an appropriate program for the student due to "the reduction in services" for the student in the February 14, 2024 IESP (Parent Ex. A at pp. 2-3).
[3] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).