STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-197
Application of a STUDENT WITH A DISABILITY, by his 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:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services from Lar Learning, LLC (Lar Learning) and LA Occupational Therapy PC (LA Occupational Therapy) for the 2024-25 school year.[1] The district cross-appeals from that portion of the IHO's decision which found that the student's pendency lay in an unappealed IHO decision. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The evidence in the hearing record concerning the student's educational history is sparse. The evidence reflects that a CSE convened on April 8, 2024 and developed an IEP for the student with a projected implementation date of April 9, 2024 (Dist. Ex. 1 at pp. 1, 22).[2] Finding the student remained eligible for special education as a student with a learning disability, the April 2024 CSE recommended that the student attend a district nonspecialized school and receive integrated co-teaching services (ICT) in English language arts (ELA), math, and social studies, one 30-minute session per week of counseling in a group of five, and two 30-minute sessions per week of occupational therapy (OT) in a group of three (id. at pp. 1, 17, 22; see Dist. Ex. 9 at p. 1).[3] During the 2024-25 (third grade) school year, the student attended a district public school (Parent Ex. A at p. 2; see Parent Ex. R).
The student was the subject of a prior impartial hearing pertaining to the 2023-24 school year, which resulted in an unappealed IHO decision dated May 27, 2024 (Parent Ex. E). In that decision, the prior IHO found that the district failed to provide the student with a free appropriate public education (FAPE) for the 2023-24 school year and ordered the district to add five periods of individual home-based special education teacher support services (SETSS) to the student's IEP and increase the student's OT to five 60-minute sessions per week (id. at p. 7).[4] The prior IHO also ordered the district to fund the student's unilaterally obtained services at a rate not to exceed $300 per hour (id. at pp. 8, 21).
The parent signed an agreement with an individual occupational therapist "[e]ffective September 1, 2024" for the provision to the student of five sessions per week of OT (Parent Ex. M).[5] In addition, on September 9, 2024, the parent executed a contract with Lar Learning for the provision of SETSS to the student during the 2024-25 school year (Parent Ex. G).
A. Due Process Complaint Notice
In a due process complaint notice, dated September 12, 2024, the parent alleged that the district failed to offer the student a FAPE for the 2024-25 school year (Parent Ex. A). In particular, the parent asserted that the April 2024 IEP was not appropriate for the student in that it did not include five sessions of SETSS per week or five 60-minute sessions per week of OT (id. at pp. 1-2). The parent also alleged that the April 2024 CSE should have recommended an extended 12-month school year for the student (id. at p. 2).
The parent indicated that she located private providers to deliver SETSS and OT services to the student (Parent Ex. A at p. 2). For relief, the parent requested that the district be required to amend the student's educational program to include a 12-month extended school year, five sessions per week of SETSS, and five 60-minute sessions per week of OT (Parent Ex. A at p. 2). The parent also requested funding for the student's privately obtained services, consisting of five sessions per week of SETSS and five 60-minute sessions per week of OT (id.). The parent invoked pendency and asserted that the student's stay put placement was based on the May 2024 unappealed IHO decision (id. at pp. 1, 2).
B. Impartial Hearing Officer Decision
After a prehearing conference on October 31, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 20, 2024 (Tr. 1-136). In an interim decision, dated December 23, 2024, the IHO found that the May 2024 IHO decision formed the basis of the student's pendency placement, which included five periods per week of individual home-based SETSS and five 60-minute sessions per week of OT for the ten-month school year (Interim IHO Decision).
In a decision dated February 27, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year but denied the relief sought by the parent (IHO Decision at pp. 12-19). In particular, the IHO found that there was no evidence in the hearing record that supported the parent's claim that the student required a 12-month school year (IHO Decision at p. 12). However, the IHO determined that the student required individual SETSS for one period per school day to address his areas of deficiency (id. at p. 17). The IHO reasoned that, because the student was not functioning at or near grade level, the CSE's failure to recommend five periods per week of individual SETSS resulted in a denial of a FAPE for the 2024-25 school year (id.). The IHO next addressed whether the CSE's failure to recommend home-based services in the student's IEP contributed to a denial of a FAPE (id.). The IHO found that there was no evidence in the hearing record that supported the claim that the student would not make progress in the recommended program without home-based services (id.). The IHO found that the unilaterally obtained home-providers did not confer with the student's teachers or in-school OT provider, did not adhere to a schedule, and did not deliver services consistent with the prior IHO's decision (id.). The IHO indicated that the home-based providers helped the student with his homework and, therefore, likened the services to those of a tutor (id.). The IHO went on to find, based upon the reasons listed above, that the parent had not met her burden to prove that the unilaterally obtained home-based services were appropriate for the student (id. at p. 19). Thus, the IHO denied the parent's request for funding of the unilaterally obtained home-based services (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging the IHO erred in denying the parent's request for district funding of the unilaterally obtained home-based SETSS and OT. The parent alleges that the IHO erred in applying a Burlington/Carter analysis to the parent's request for home-based SETSS and OT services because the district was required to provide those services. The parent asserts that the IHO should have applied the standard set forth in Doe v. East Lyme Board of Education, 790 F.3 440 (2d Cir. 2015). The parent argues in the alternative that, if a Burlington/Carter standard applied to the matter at hand, the IHO erred in finding that the home-based SETSS and OT were not required under the prior IHO decision and not necessary or appropriate for the student.
In an answer with cross-appeal, the district argues that the IHO correctly denied the parent's requested relief on the merits but that the IHO's pendency order should be vacated. The district alleges that the prior May 2024 IHO decision should not have been deemed the basis for the student's pendency as it was not a decision on the merits. The district asserts that the student's IEP, dated March 30, 2020 forms the basis of pendency for this matter. The district also argues that the IHO properly found that the parent failed to meet her burden of proof regarding the appropriateness of the unilaterally obtained services. Further, the district asserts that equitable considerations do not favor the parent. Finally, the district argues that the IHO's order for the district to amend the student's IEP was improper because SETSS was added to the student's most recent IEP, dated April 3, 2025, making the issue moot.[6]
In an answer to the district's cross appeal, the parent argues that the IHO's pendency order should not be vacated.[7] Additionally, the parent restates her argument that the unilaterally obtained services were appropriate and also argues that equitable considerations weigh in favor of her requested relief and the IHO did not err in ordering the district to amend the student's IEP.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[8]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Pendency
Turning first to the district's cross-appeal pertaining to 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., 752 F.3d at 170-71; 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]).[9] 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 E. Lyme Bd. of Educ., 790 F.3d at 452 [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).
The district asserts in its cross-appeal that the unappealed May 2024 IHO decision cannot form the basis of pendency in the present matter because the prior IHO did not award services based on the merits. In support of its argument, the district cites the portion of the decision wherein the prior IHO stated that he found "that the [parent] [wa]s entitled to have the student's IEP reflect the operative program the student ha[d then] been receiving for the past two full academic years" (Parent Ex. E at p. 7), which invoked language relating to pendency, an issue that is required to be examined separately from the merits. However, the section of the prior IHO's decision in which this quote appears discussed how the district failed to provide the student with a FAPE for the 2023-24 school year and concluded with the IHO ordering the district to add five periods per week of individual home-based SETSS and five 60-minute sessions per week of OT to the student's IEP (id.). The prior IHO also found that the parent had engaged in self-help to obtain five periods of individual home-based SETSS and five 60-minute sessions of OT in the private market, and that the unilateral programming was "validated programmatically" as "the basis for FAPE going forward" (id. at pp. 7-8). The prior IHO ordered the district to reimburse or directly fund those services for which the parents did or would contract for the 2023-24 school year (id. at pp. 8, 12, 14). Thus, the prior IHO broadly found that the services obtained by the parent were appropriate, specifically focusing on the type of service rather than the delivery thereof, and required district funding of such private services up to a certain dollar amount without limiting such funding to a particular provider or agency (id. at pp. 8-15, 21). The only caveat identified by the prior IHO was that the "family-identified" providers carry proper certifications (id. at p. 21).
The district did not appeal from the prior IHO's decision and, therefore, the IHO in the present matter did not err in finding that the student's pendency lay in that prior decision.
B. Mootness
Turning to the merits, as the district has not appealed the IHO's determination in this matter that it failed to offer the student a FAPE for the 2024-25 school year, that finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Accordingly, the only remaining issues pertain to the relief sought by the parent. However, at this juncture, and given the discussion above regarding the student's pendency placement, it appears that the parent is entitled to all of the relief sought.
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X, 2008 WL 4890440, at *12; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, in the September 12, 2024 due process complaint notice, as relief, the parent sought funding for five periods per week of individual home-based SETSS and for five 60-minute sessions per week of OT for the 2024-25 school year (Parent Ex. A at p. 2). As discussed above, the IHO in this matter correctly found that the student's pendency lay in the unappealed May 2024 IHO decision and ordered the district to fund five periods per week of individual home-based SETSS and for five 60-minute sessions per week of OT during the pendency of the proceedings (Interim IHO Decision), which have now encompassed the entirety of the 2024-25 school year. While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the student received, or was entitled to receive, services under pendency for the entirety of the 10-month 2024-25 school year and past the time for developing a new IEP for the student in April 2025, and the parents' due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Ex. A at pp. 1-2). Moreover, during this appeal, counsel for the district represented, in correspondence to this office requesting extensions, that the student was receiving services pursuant to pendency. Accordingly, regardless of the outcome of the parent's appeal of the IHO's determination regarding the appropriateness of the unilaterally obtained services, the parent is entitled to all of the relief sought in this proceeding. Similarly, with respect to the district's cross-appeal challenging the IHO's order for the CSE to add services to the student's IEP for the remainder of the 2024-25 school year, as the school year is over, a review of whether relief in this form was appropriate has become moot.
On the other hand, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Scheff v. Banks, 2024 WL 3982986, at *4 [2d Cir. Aug. 29, 2024]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Scheff, 2024 WL 3982986, at *4; Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (Cohen v. Aviles-Ramos, 2025 WL 3715102 [S.D.N.Y. Dec. 22, 2025]; New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year (see IHO Decision at pp. 17, 19), and the IHO's determination that the unilaterally obtained services were not appropriate, if upheld, would not constitute a pendency changing event because it was not in the parent's favor (see Letter to Hampden, 49 IDELR 197 [discussing the effect on pendency of a unappealed IHO decision in the parent's favor]; see also Mondano v. Banks, 2026 WL 32147, at *10 [S.D.N.Y. Jan. 5, 2026] [finding that an SRO decision that agrees with the district may not be treated as an agreement for purposes of pendency]). Accordingly, there can be no pendency changing determination in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding. Moreover, according to the district, a CSE convened on April 3, 2025 and added SETSS to the student's IEP (Answer & Cr.-App. ¶ 26). Here, the parties' dispute centers around the particular home-based services the parents obtained as self-help to remedy the district's denial of a FAPE to the student. As the FAPE determination has already been addressed and the only issues in this matter relate to the appropriateness of unilaterally obtained services and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and, in any event, appears factually unwarranted given the district's representations concerning the addition of SETTS the April 2025 IEP; therefore, the FAPE violation cannot be deemed to have repeated such that it can be used to justify a finding that the matter is "capable of repetition, yet evading review." In addition, there is no indication that the parent has pursued private services at district expense for the 2025-26 school year making it distinguishable from other matters that have viewed disputes over private services potentially capable of repetition given evidence of newly filed complaints seeking similar relief for a new school year (see Cohen, 2025 WL 3715102, at *3 [finding that the parent satisfied the capable of repetition test given evidence that the parent "ha[d] already filed" a due process complaint notice for the subsequent school year that sought "the same level of funding for transportation expenses that she sought in the" matter before the court]).
Even if the dispute here could be repeated, a determination in this matter would be of little consequence, as detailed procedural and substantive fact findings must be made regarding each disputed IEP, school year, or unilateral placement, and administrative hearing officers cannot rely on facts from one school year to make determinations about a different school year (see J.R. v. New York City Dep't of Educ., 748 Fed. App'x 382, 386 [2d Cir. Sept. 27, 2018] [stating that "the [district's] funding of [the student's] schooling in other years is irrelevant: 'the adequacy vel non of an IEP . . . is to be judged on its own terms'" and that whether the district offered the student "an appropriate placement in other years 'makes no difference' to the question of whether the IEP provided a FAPE" in the school year at issue], quoting M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 [2d Cir. 2000]; but see Cohen v. Aviles-Ramos, 2025 WL 3715102, at *3 [S.D.N.Y. Dec. 22, 2025] [noting that the district in that matter did not present a reason to believe that a determination on funding for private transportation services would be subject to an annual reassessment]).
Because there is no longer a dispute as to the student's educational programming and no reasonable expectation or demonstrated probability that the dispute will reoccur, there is no district action "capable of repetition, yet evading review." As such, the issues presented in this matter do not fit into the mootness exception as they are not capable of repetition yet evading review. Based on the foregoing, the matter is moot as there is no further relief that may be granted (see Beckford v. Aviles-Ramos, 2025 WL 2781539, at *4 [S.D.N.Y. Sept. 30, 2025] [finding parent's claim for tuition and related services was moot because defendant had already paid the tuition and related services expenses required by the IHO's decision, and noting that the 'hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed']).
VII. Conclusion
Having determined that there is no further relief that may be granted, the necessary inquiry is at an end. I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The student's grandmother is his legal guardian; therefore, consistent with State regulation, the grandmother will be referred to as the "parent" throughout this decision (see 8 NYCRR 200.1[ii][1]).
[2] Although certain exhibits separately appear in the hearing record as pertaining to the student's pendency placement, all such documents also appear as exhibits entered into evidence during the portion of the impartial hearing devoted to the merits, although some with different exhibit designations. For purposes of this decision, all citations to exhibits are to those entered during the merits phase of the hearing.
[3] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[4] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[5] The agreement was with the individual provider (Parent Ex. M); however, elsewhere in the hearing record it indicates that the provider delivered the services through a company, LA Occupational Therapy, PC (see Parent Ex. N at p. 1).
[6] The district also argues that the parent's request for review should be rejected for failing to comply with practice regulations. I have reviewed the pleadings and decline to reject the parent's request for review on the grounds stated by the district.
[7] The parent's answer to the cross-appeal is miscaptioned as a "Verified Answer to Request for Review".
[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[9] 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 959 F.3d at 532-36).