STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-229
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:
The Law Office of Elisa Hyman, PC, attorneys for petitioner, by Erin O'Connor, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, 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 a decision of an impartial hearing officer (IHO) which denied her request for funding for her son's home-based applied behavior analysis (ABA) services the parent secured for the 2024-25 school year. The district cross-appeals. 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 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 in detail. Briefly, the student has received a diagnosis of autism spectrum disorder (Parent Exs. M at p. 1; N at p. 1). The student was described as having a unique set of cognitive and social skills as well as delays that affected his ability to access a standard academic curriculum (Parent Ex. M at p. 14). The student reportedly engaged in a high level of impulsive and self-stimulatory behaviors, which required consistent and specific reinforcement and redirection to address them (id.). The student has attended Manhattan Children's Center (MCC) since September 5, 2019 (Parent Exs. G at p. 1; I).
A CSE convened on May 9, 2024, and, finding the student continued to be eligible for special education as a student with autism, developed an IEP for the student with a projected implementation date of July 1, 2024 (Dist. Ex. 1 at pp. 1, 49).[1] The May 2024 CSE recommended the student attend a 12-month program consisting of a 6:1+1 special class for 35 periods per week, three periods per week of adapted physical education, two 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of OT in a group of two, three 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of speech-language therapy in a group of two (id. at pp. 43-44). The May 2024 CSE also recommended a daily, full-time individual paraprofessional for health, activities of daily living skills (ADLs), and safety (id. at p. 44). The May 2024 CSE further recommended one 60-minute session per month of parent counseling and training (id. at p. 43).
On April 2, 2024, the parent electronically signed an enrollment agreement with MCC for the 12-month, 2024-25 school year beginning in July 2024 (Parent Ex. F). In a letter dated June 17, 2024, the parent notified the district of her disagreement with the May 2024 IEP and stated her intent to unilaterally place the student at MCC for the 2024-25 school year and seek funding from the district for the costs of MCC, as well as for 20 hours per week of after-school ABA services (Parent Ex. B).
A. Due Process Complaint Notice and Subsequent Events
In a due process complaint notice dated June 27, 2024, the parent alleged, in part and as relevant to this appeal, that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A at pp. 1, 2, 13-15). As relief, the parent requested the district fund the costs of the student's tuition at MCC for the 12-month, 2024-25 school year, including assistive technology and special transportation, fund 20 hours per week of home-based 1:1 ABA services, reimburse the parent for any out-of-pocket costs for any evaluations, special education and/or related services the parent may have incurred during the school year, and provide compensatory educational services for the district's failure to offer the student a FAPE for the 2024-25 school year, including for any pendency services not delivered to the student (id. at pp. 16-17).
For the 2024-25 school year, the student attended MCC and received five hours per day of 2:1 and 1:1 individualized instruction using ABA, one hour per day of 4:1 instructional lunch and leisure skills, along with three 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of speech-language therapy in a group of two, two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week of OT in a group of two (Parent Exs. G at p. 1; K at p. 1; L at p. 1; N at p. 1). In addition, the student received 20 hours per week of home-based 1:1 ABA services from two Board Certified Behavior Analysts (BCBAs) from Project CaLi Licensed Behavior Analysis, PLLC (Project CaLi) (Parent Exs. N at p. 1; Z ¶¶ 1, 55-56).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on July 29, 2024 and concluded on January 29, 2025 after five days of proceedings (July 29, 2024 Tr. pp. 1-6; Aug. 21, 2024 Tr. pp. 7-15; Oct. 8, 2024 Tr. pp. 16-22; Tr. pp. 1-95).[2]
On November 29, 2024, the IHO issued an interim order on pendency (see IHO Interim Decision at pp. 1-2). The IHO indicated in her interim decision that the district was given an opportunity to respond to the pendency services proposed by the parent but failed to respond or assert its own position on pendency (id. at p. 1). The IHO determined that the student's pendency program was based on an unappealed July 12, 2024 IHO decision (id.). As pendency, the IHO found that the student was entitled to 12-month services consisting of enrollment at MCC, which included three 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group, two 30-minute sessions per week of individual OT, one 30-minute session per week of OT in a group, and one weekly OT lunch consultation (id.). In addition, the student's pendency services included daily curb-to-curb special transportation in an air conditioned mini-bus with limited travel time and a 1:1 travel aide, and 20 hours per week of home-based ABA instruction with BCBA supervision (id.).
In a decision dated March 6, 2025, the IHO found that the district failed to meet its burden of proof at the impartial hearing (IHO Decision at pp. 26, 27). At the outset, the IHO determined that the hearing record did not support a finding of a denial of a FAPE to the student on each of the grounds alleged by the parent (id. at p. 26). The IHO noted procedural violations of the IDEA that did not rise to the level of a denial of a FAPE; however, she found that the district failed to establish with clarity what evaluative information was considered by the CSE in developing the IEP (id.). More specifically, the IHO noted that it was unclear from the hearing record whether the CSE considered and planned to implement MCC's behavior intervention plan (BIP) or planned to develop its own (id.). The IHO indicated that she was left to speculate as to what information was available to the CSE in formulating their recommendations and as to which BIP would be implemented (id.). As a result, the IHO determined that the district failed to meet its burden to establish that it offered the student a FAPE (id.). Next the IHO determined that the program the CSE recommended was substantively appropriate (id.). The IHO further found that the parent did not meet her burden of demonstrating that the district violated section 504 (id.).
Turning to the appropriateness of the parent's unilateral placement, the IHO found that the parent's program, which consisted of enrollment at MCC and 20 hours per week of home-based ABA was appropriate (IHO Decision at p. 27). However, as to the 20 hours per week of home-based ABA services, the IHO found that the parent failed to demonstrate a financial obligation for the services and, therefore, lacked standing to seek funding for them (id.). In alternate findings, the IHO determined that she would have only awarded funding for 10 hours per week of home-based ABA services had the parent established a financial obligation because she found that more than 10 hours per week exceeded the requirements of a FAPE to the student (id. at p. 27 n.32). In conclusion, the IHO further addressed equitable considerations finding that apart from 20 hours per week of home-based ABA services exceeding the number of hours the student required to receive a FAPE, no other factors warranted a reduction in the amount of funding requested by the parent (id. at pp. 28-29).
As relief, the IHO ordered the district to fund the cost of the student's tuition at MCC for the 12-month, 2024-25 school year, less any amount already paid pursuant to pendency, and to provide special transportation from the closest safe curb to MCC, in an air conditioned vehicle on a route with fewer students for the remainder of the 2024-25 school year (IHO Decision at p. 29).
IV. Appeal for State-Level Review
The parties' familiarity with the particular issues for review on appeal in the parent's request for review, the district's answer with cross-appeal, the parent's answer to the cross-appeal, and the district's reply thereto are also presumed and, therefore, the allegations and arguments will not be recited here.[3],[4] The essence of the parties' dispute on appeal is whether the IHO erred by denying funding for the student's home-based 1:1 ABA services.[5]
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]).[6]
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
The district does not appeal the IHO's findings that it denied the student a FAPE for the 2024-25 school year or that MCC was an appropriate unilateral placement for the 12-month 2024-25 school year. 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]). In her appeal, the parent does challenge the IHO's discrete findings that certain allegations did not contribute to the overall finding that the district denied the student a FAPE. However, as the parent prevailed on the issue of whether the district offered the student a FAPE, the parent is not aggrieved (see Educ. Law § 4404[2]; see also see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]), and I do not find that the hearing record supports the need for any additional declaratory findings on the issues raised by the parent. Accordingly, the only remaining issues pertain to the relief sought by the parent and, even more narrowly, relief in the form of district funding for 20 hours per week of privately obtained, home-based 1:1 ABA services. However, at this juncture, based on the facts of this case and the length of time it took to reach this point in the proceeding, I find that it is unnecessary to reach a conclusion as to whether the IHO correctly determined the appropriateness of the unilaterally obtained special education services or whether equitable considerations warrant a reduction in relief because the student was entitled to all of the remaining relief sought by the parent pursuant to pendency. In other words, there is no longer a live controversy.
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 v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; 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).
There is no dispute that the district was required to fund 20 hours per week of home-based 1:1 ABA services with BCBA supervision from the date of the parent's June 2024 due process complaint notice throughout the time that this matter has remained pending pursuant to the IHO's interim decision on pendency (Interim IHO Decision at p. 1). 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 services under pendency for the entirety of the 12-month, 2024-25 school year and past the projected date for annual review for developing a new IEP for the student in May 2025 and throughout the entirety of the 2024-25 school year, and the parent's due process complaint notice requested the same services for both pendency and the ultimate relief as part of the impartial hearing (Interim IHO Decision at p. 1; see Parent Exs. A at pp. 16-17). Further, during the appeal, both parties 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 or equitable considerations, the parent has received all the relief sought in this proceeding.
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, the district has not appealed from the IHO's determination that it failed to offer the student a FAPE for the 2024-25 school year or that the unilateral placement was appropriate, and the IHO's determination that the parent did not have a financial obligation to fund the 20 hours per week of home-based ABA services and, therefore, did not have standing to seek district funding for the services, even 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 as it was resolved in the parent's favor and is final and binding. Rather, the parties' remaining dispute centers around the student's entitlement to funding for privately obtained home-based services, which, at this point, the district is already obligated to pay pursuant to pendency. As the FAPE determination has already been addressed and the only issue in this matter relates to the funding of 20 hours per week of home-based 1:1 ABA services, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot 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 a unilateral placement 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 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, 2025 WL 3715102, at *3 [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 eligibility for special education as a student with autism is not in dispute (see 34 CFR 300.8[c][1]; 8 NYCRR 200.1[zz][1]).
[2] The hearing record includes transcripts that were not consecutively paginated. The transcripts for a July 29, 2024 prehearing conference, and August 21, 2024, and October 8, 2024 status conferences were consecutively paginated. The transcripts for a November 6, 2024 status conference and a January 29, 2025 hearing date are consecutive paginated but, apparently due to a change in transcription service providers, the November 6, 2024 transcript begins with page 1. To the extent it is necessary to cite to the transcripts for the prehearing and status conferences that took place between July and October 2024, they will be cited by the date and corresponding page number (see July 29, 2024 Tr. pp. 1-6; Aug. 21, 2024 Tr. pp. 7-15; Oct. 8, 2024 Tr. pp. 16-22). All other transcript citations in this decision refer to the proceedings held on November 6, 2024 and January 29, 2025 (see Tr. pp. 1-95).
[3] I have considered the district's procedural argument to reject the parent's answer to the cross-appeal. I decline to exercise my discretion to reject the parent's answer to the cross-appeal on the grounds stated by the district given the disposition of this matter.
[4] As for the district's cross-appeal, the district states, "to the extent that the IHO erred in analyzing the home-based ABA services under the wrong section [of a Burlington/Carter three-pronged analysis], the [district] cross-appeals" but further asserts that "the ultimate denial of relief should stand" (Answer & Cr.-Appeal ¶ 12). Contrary to the district's contention, the IHO correctly analyzed the appropriateness of the parent's unilateral placement, which consisted of enrollment at MCC along with 20 hours per week of home-based 1:1 ABA services under the second prong of the Burlington/Carter analysis. The IHO also correctly analyzed whether or not the parent's privately obtained services were in excess of the requirements of a FAPE to the student as an equitable consideration. The district misstates the IHO's findings and analysis. Accordingly, the district's cross-appeal is without merit and will not be further discussed.
[5] The parent has attached four documents to the request for review and requests that they be considered as additional evidence. The parent's documents are the parent's exhibits T through X, which were excluded from evidence by the IHO during the impartial hearing as not relevant (see Tr. pp. 18-21). The exhibits consist of prior IHO decisions, and the parent argues that the documents were relevant to the student's section 504 claims (see Tr. pp. 19-20). Generally, an SRO lacks jurisdiction to consider a parent's challenge to an IHO's failure or refusal to rule on section 504, as an SRO's jurisdiction is limited by State law to matters arising under the IDEA and Article 89 of the Education Law (Educ. Law § 4404[2] [providing that SROs review IHO determinations "relating to the determination of the nature of a child's handicapping condition, selection of an appropriate special education program or service and the failure to provide such program"]). Courts have also recognized that the Education Law makes no provision for State-level administrative review of IHO decisions with regard to section 504 (see A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 672 & n.17 [E.D.N.Y. 2012] [noting that "[u]nder New York State education law, the SRO's jurisdiction is limited to matters arising under the IDEA or its state counterpart"], aff'd, 513 Fed. App'x 95 [2d Cir. 2013]; see also F.C. v. New York City Dep't of Educ., 2016 WL 8716232, at *11 [S.D.N.Y. Aug. 5, 2016]). Additionally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]). Here, pursuant to State regulations, an IHO may exclude any evidence she determines to be "irrelevant, immaterial, unreliable or unduly repetitious" (8 NYCRR 200.5[j][3][xii][c]). The IHO did not abuse her discretion in determining that the parent's evidence was not relevant and given that an SRO does not have jurisdiction to review the parent's section 504 claims, the parent's proposed additional evidence is not necessary to render a decision in this matter. In addition, the parent concedes in her answer to the district's cross-appeal that the purpose of her proposed additional evidence was to demonstrate exhaustion of her administrative remedies rather than to request review of her section 504 claims.
[6] 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).