STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-276
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:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Lindsay Malone, 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 that respondent (the district) fund the costs of her son's unilaterally obtained services delivered by AIM Further Inc (AIM) for the 2023-24, and 2024-25 school years. The district cross-appeals from that portion of the IHO's decision which granted funding for health paraprofessional services. The appeal must be dismissed. The cross-appeal must be sustained.
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]). 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, 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
An initial Committee on Preschool Special Education (CPSE) convened on June 6, 2018, and found the student eligible for special education as a preschool student with a disability (see Parent Ex. C). The CPSE recommended that the student receive 12-month programming consisting of 10 hours of direct, individual special education itinerant teacher (SEIT) services per week; three 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual occupational therapy (OT); and two 30-minute sessions per week of individual physical therapy (PT) (id. at pp. 27, 28).[1] Further, the CPSE recommended that the student receive full time, 1:1 individual health paraprofessional services (id. at p. 27).
During the 2022-23 school year the student was seven years old and in second grade in a "regular education setting" at a nonpublic school selected by the parent (Dist. Exs. 2 at p. 4; 9 at p. 1). The student was reported as having received a diagnosis of autism, having severe food allergies, and it was also reported the student’s "native language" was Yiddish (Dist. Ex. 2 at pp. 2, 4). A CSE convened on December 5, 2022, found the student eligible for special education as a student with an other health impairment, and developed an IESP for the student with an implementation date of December 19, 2022 (id. at p. 1).[2] The CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS) in Yiddish, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and full-time, individual health paraprofessional services to address the student's severe allergies (id. at p. 9).[3]
The parent, through her attorney, sent a letter titled "Notice of Residence to School District of Location" via email to the district on May 30, 2023 (see Parent Ex. G). In that letter, the parent notified the district that she was parentally placing the student at a nonpublic school for the 2023-24 school year and sought special education services for the student from the district (id. at p. 2).
The parent's attorney emailed another letter to the district on June 26, 2023 (see Parent Ex. D). The June 2023 letter indicated that the parent disagreed with a January 24, 2022 CSE's recommendation of SETSS and related services for the student (id. at p. 2).[4] The parent indicated that due to her concerns regarding the removal of "the SEIT program," and 12-month services, she had "no choice" but to reject the recommendations, place the student at a nonpublic school, and provide the student's "prior recommended services" (id.). The parent asserted that she would be seeking reimbursement or direct payment from the district for the student's special education program and related services (id. at pp. 2-3).
The student attended a nonpublic school during the 2023-24 school year, and AIM began delivering 10 hours per week of "[s]pecial [e]ducation [s]ervices," to the student on July 5, 2023, and two 30-minute sessions per week of OT beginning on November 5, 2023 (Parent Exs. L at p. 1; P ¶¶ 6-8).[5]
The parent signed a contract with AIM on February 13, 2024 (see Parent Ex. I).[6] The contract indicated that AIM intended to provide the student with 10 hours per week of "SETSS/SEITS" at the rate of $218 per hour, two periods per week of OT at the rate of $250 per hour, and full-time paraprofessional services at the rate of $85 per hour during the 2023-24 school year (id. at p. 2).[7]
The parent's attorney sent a "Request for Services" letter for the 2024-25 school year via email to the district on May 31, 2024 (see Parent Ex. H).[8] The parent notified the district that she placed the student at a nonpublic school for the 2024-25 school year and was seeking the recommended special education services from the district (id. at p. 2).
The parent signed a contract with AIM on June 21, 2024 (see Parent Ex. J). The contract indicated that AIM intended to provide the student with SETSS/SEITS" at the rate of $218 per hour and full-time paraprofessional services at the rate of $85 per hour during the 2024-25 school year (id. at p. 2).[9]
The parent's attorney emailed a letter to the district on June 26, 2024 (see Parent Ex. E). The letter indicated the parent was rejecting the program recommended on December 5, 2022 due to the removal of SEIT and 12-month services (id. at p. 2). The parent asserted that she was left with no choice but to enroll the student at a nonpublic school and provide him with the prior recommended services (id. at p. 3). The parent notified the district that she would be seeking reimbursement or funding for the costs of the student's special education program (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated July 5, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). The parent asserted that the student was entitled to pendency services, which the parent alleged was based on a June 6, 2018 IEP which recommended a 12-month program consisting of: 10 hours of individual SEIT services in Yiddish per week; three 30-minute sessions of individual speech-language therapy in Yiddish per week; two 30-minute sessions of individual OT per week; two 30-minute sessions of individual PT per week; and "5x420" minutes per week of 1:1 health paraprofessional services (id. at p. 2).
The parent noted that a CSE meeting was held on December 5, 2022, which subsequently recommended: three periods of direct, group SETSS in Yiddish per week; two 30-minute sessions of individual OT per week; two 30-minute sessions of "indirect" PT per week; and full-time, daily individual health paraprofessional services (Parent Ex. A at p. 2).[10] The parent contended that the "most recent IESP" indicated the student struggled with reading and was delayed in writing and math (id.). The parent argued that the CSE failed to recommend an appropriate program for the student by reducing the student's services from 10 hours of SEIT services per week to three hours of SETSS per week and by removing the recommendation for services on a 12-month basis (id.). The parent argued that the student was making progress with the "SEIT program" and required a continuation of that program or "an appropriate placement in a hybrid special education/general education program" (id. at p. 3). The parent alleged SETSS were "more limited" and did "not address the broader organizational, executive functioning, social skills that [we]re needed" for the student to meet his goals (id.). Since the district did not recommend an appropriate placement for the student, the parent advised that she was forced to implement the SEIT program and seek reimbursement for that program (id.). Moreover, the parent asserted that she reserved the right to seek compensatory SETSS and related services for any periods "not provided" during the 12-month 2024-25 school year (id.).
For relief, the parent requested a finding that the December 2022 IESP constituted a denial of FAPE for the 12-month 2024-25 school year and that the CSE failed to convene and recommend an appropriate program for the 12-month 2024-25 school year (Parent Ex. A at p. 3). The parent also requested an order to continue the services recommended by the June 2018 IEP at the contracted rate for the complete 12-month 2024-25 school year, and a bank of compensatory services for any missed pendency services at the contracted rate (id. at p. 4).
In a second due process complaint notice dated July 12, 2024, the parent asserted that the district failed to offer the student a FAPE for the 2023-24 school year (see Parent Ex. B). Similarly to the July 5, 2024, due process complaint notice, the parent alleged that the student was entitled to pendency pursuant to the June 6, 2018 IEP (compare Parent Ex. A at p. 2, with Parent Ex. B at p. 2). The parent next contended that the CSE convened on January 24, 2022, without referencing the later December 2022 CSE meeting (Parent Ex. B at p. 2; Dist. Ex. 2). Nevertheless, the parent asserted that the same program had been recommended as alleged in the prior due process complaint notice (compare Parent Ex. A at p. 2, with Parent Ex. B at p. 2). The parent again argued that the reduction in services from 10 hours of SEIT services per week to three hours of SETSS per week and the removal of a recommendation for 12-month programming were not appropriate to meet the student needs (compare Parent Ex. A at p. 2, with Parent Ex. B at p. 2). The parent made the same allegations as in the prior due process complaint notice regarding the student's need for SEIT services, which she was forced to obtain for the student due to the district's failures (compare Parent Ex. A at p. 3, with Parent Ex. B at p. 3). The parent again reserved her right to seek compensatory services and made the same request for relief only pursuant to the 2023-24 school year (compare Parent Ex. A at pp. 3-4, with Parent Ex. B at pp. 3-4).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on August 5, 2025 and concluded on December 2, 2024 after five days of proceedings (Tr. 1 pp. 1-108; Tr. 2 pp. 1-33).[11] In a decision dated April 7, 2025, the IHO noted that she consolidated the two due process complaint notices (IHO Decision at pp. 3, 10).[12] The IHO noted that the district made a motion to dismiss based on subject matter jurisdiction, which she did not find persuasive (id. at p. 3). The IHO indicated that the district failed to raise the June 1 defense, has not evaluated the student since 2019, failed to offer a cogent explanation as to how the services recommended in the December 2022 IESP addressed the student's needs, and failed to reconvene since 2022 (id. at p. 7). Based on these findings, the IHO held that the district failed to provide the student with equitable services for both the 2023-24 and 2024-25 school year (id.).
Turning to the appropriateness of the unilaterally obtained services, the IHO noted that hearing record was "sparse" and that the parent was seeking an entirely different program from either the 2018 IEP or 2022 IESP (IHO Decision at p. 8). The IHO indicated that the agency supervisor testified regarding the student's speech-language needs but failed to provide a cogent explanation as to why the student was not provided with those services (id.). Moreover, the IHO noted that the parent did not provide attendance records, session notes, invoices, or bills for the school years in question (id.). Additionally, the IHO noted that the providers who implemented the student’s services did not testify, there was only one progress report dated June 2024, and the goals in the progress report were similar to those from 2022 (id.). The IHO held that there was limited information regarding the specially designed instruction provided to the student (id.). The IHO determined that the hearing record lacked any information, beyond one statement, that the student actually received any services during the 2024-25 school year (id. at p. 9). Based on the totality of the circumstances, the IHO held that the parent did not sustain her burden to show that the unilaterally obtained services were appropriate (id.). However, the IHO determined that it was undisputed that the student required full-time health paraprofessional services; and, therefore, the IHO found that the provision of health paraprofessional services during the 10-month portion of the 2024-25 school year was appropriate (id.). The IHO declined to award funding for the SETSS and OT services delivered to the student during either the 2023-24 or 2024-25 school year (id.). The IHO also declined to award compensatory education services for speech-language therapy (id.).
Additionally, the IHO found that equitable considerations favored the district, as the parent did not provide timely notice of her intent to obtain unilateral services for the student for either the 2023-24 or 2024-25 school year (IHO Decision at p. 9). However, the IHO noted that both parties agreed that the rate for the paraprofessional services was reasonable and declined to reduce the rate for that service (id.).
The IHO ordered the district to fund the unilaterally obtained health paraprofessional services on a 10-month basis at the rate of $85 per hour upon the district’s receipt proof of the exact dates of service, and further ordered the district to reevaluate the student in all areas of suspected disability and convene a CSE to review the evaluation (IHO Decision at p. 10).
IV. Appeal for State-Level Review
The parent appeals. The parent asserts that the district provided no evidence to show that the student's 2022 IESP was appropriate and therefore, it is undisputed that 10 hours of SETSS is most appropriate for the student. The parent also argues that it is the district's burden to defend its program and the district failed to defend its IESP and that because the district failed to do so, there should be no dispute that the student's 2018 IESP, including summer services, was the "most appropriate" program for the student.
Next, the parent argues that she met her burden of proof to show that the unilaterally obtained services were appropriate for the student, referencing an AIM progress report and the testimony of the AIM quality assurance supervisor as support for finding the SETSS and OT services were tailored to meet the student's needs. Further, the parent alleges that the IHO erred in finding equitable considerations favored the district as the parent sent notices to the district that she was requesting services from the district at a nonpublic school and she was not required to send an additional notice that she was removing the student from public services and, further, the parent did send notices to the district for each school year indicating her objections to the district’s recommended program. The parent also claims that there is no justification for a reduction in the requested rate. The parent requests that the district fund the unilaterally obtained services for both the 12-month 2023-24 and 2024-25 school years at the contracted for rates.
The district submits an answer with cross appeal. The district asserts that the IHO correctly found that the student was not entitled to district funding of the unilaterally obtained SETSS or OT services for the 2023-24 and 2024-25 school years. According to the district, the parent incorrectly contended that because the district did not prove that the December 2022 IESP was appropriate, therefore the services in the 2018 IEP should be automatically deemed appropriate. The district agrees with the IHO that the parent failed to show that the SETSS and OT services she obtained for the student were appropriate. The district also contends that IHO properly held that the parent failed to demonstrate that the student was entitled to services on a 12-month basis, or that those services obtained were appropriate.
The district cross appeals from the IHO's finding that the student's paraprofessional services were appropriate for the 2024-25 school year. Specifically, the district argues that the parent failed to offer any documentary evidence regarding the qualifications of the paraprofessional or how the paraprofessional assisted that student, noting that the paraprofessional did not testify. Further, the student did not receive paraprofessional services for the 2023-24 school year; therefore, if the student did not require the service for that year, it should not be found that the student needed paraprofessional services for the 2024-25 school year. Moreover, the district argues that the student did not attend school during summer 2024, and there is no evidence as to why the district should pay for health paraprofessional services while the student was not in school.
The district contends that the IHO correctly held that equitable considerations do not favor the parent. According to the district, the rates charged by the agency were excessive as the SETSS provider only received $90-110 per hour, yet the agency charged $218 per hour. Similarly, the agency charged $85 per hour while only paying the paraprofessional $40-45 per hour. The district asserts that it would be inequitable to require it to pay these excessive rates. Moreover, the district notes that the parent did not enter into a contract with AIM until February 2024 for services delivered during the 2023-24 school year and argues that the district should not be required to fund services that were delivered outside of the parent’s contract with AIM.
Lastly, the district argues that the IHO erred in ordering pendency to the extent that the IHO's finding could be construed as entitling the parent to funding for unilaterally based services based on the recommendations contained in the student’s 2018 IEP. According to the district, the parent rejected the student’s pendency program by enrolling the student in a private school and unilaterally obtained services.
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]).[13]
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.Preliminary Matter – Scope of Review
Neither party has appealed from the IHO's finding that the district failed to provide the student with equitable services for both the 2023-24 and 2024-25 school years (IHO Decision at p. 7). Additionally, although the parent requested compensatory education in her request for review, and the IHO denied compensatory education as relief, the parent did not reassert this claim on appeal. Further, the parties did not appeal the IHO's order directing the district to reevaluate the student in all areas of suspected and to convene a CSE meeting following the completion of the evaluation (id. at p. 20). 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]).
B.Unilateral Placement
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 and 2024-25 school years and, as a self-help remedy, she unilaterally obtained private services from AIM for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately-obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[14] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1.2023-24 School Year
a.The Student's Needs
A discussion of the student's needs provides the background necessary to evaluate the appropriateness of the unilaterally obtained services AIM delivered to the student during the 2023-24 school year. The most recent information about the student's needs was included in testimony and identified in a June 2024 AIM special education progress report (June 2024 report).
The hearing record reflected that the student had received a diagnosis of autism, and during the hearing, the parent referred to the student as having "borderline ADHD" (Tr. 2 p. 22; Dist. Exs. 2 at p. 4; 8 at p. 1). In her affidavit, the parent indicated that the student demonstrated difficulty in "many academic and social/emotional areas and require[d] a lot of extra assistance" (Parent Ex. N ¶ 2). The parent further offered, in her affidavit, "that without the extra assistance [the student] w[ould] not be able to maintain his mainstream placement" (id.).
The AIM quality assurance supervisor testified that he "observe[d] [the student] about four or five times" during the 2023-24 school year (Tr. 1 p. 82). During the hearing, the quality assurance supervisor testified that the student's "reading comprehension [was] tested in both [Yiddish and English] in order to get the most accurate information," and the results indicated that the student exhibited delays in both languages (Tr. 1 p. 94). Further, the quality assurance supervisor testified that while the student's fluency had "improve[d] somewhat," his reading "comprehension and decoding and" ability to "analyz[e] texts" was "a good two grades below" (Tr. 1 p. 95).
According to the June 2024 AIM report, the student demonstrated difficulty "with reading, writing, mathematic[s], and social skills," and presented with "a poor attention span and poor control of his behavior" which "ma[de] it very difficult for him to learn in class" (Parent Ex. L at p. 1). The June 2024 report indicated that in reading the student was "at least two grades below level" as defined by "the Fountas and Pinnell assessment"; he "struggle[d] with writing on grade level"; and his "math skills [were] below grade level" (id. at pp. 1, 2). The June 2024 report also indicated that the student demonstrated "messy" handwriting and "struggle[d] with visual perception and self-awareness" (id. at pp. 2, 3).
The June AIM 2024 report noted that the student had difficulty following "multi-step directives" in the classroom, "organizing his thoughts," and "understanding abstract concepts," and that he "demonstrate[d] poor receptive language skills" (Parent Ex. L at p. 3). Further, the June 2024 report indicated that, expressively, the student used "simple, low-level vocabulary" and was "learning to stay on topic and maintain a peer conversation" (id.). The provider indicated in his June 2024 report that the student exhibited "diminished attention and visual perception" and "struggle[d]" to "complet[e] classwork" without "an adult figure [] at his side" who provided "prompt[s]" (id.). The provider also indicated in the June 2024 report that because the student was "unfocused," it was "difficult" for him to "gain[] skills during classroom instruction" (id. at pp. 1-2).
Socially, according to the June 2024 report, the student required "constant help and reminders to integrate into classroom activities appropriately" (Parent Ex. L at p. 3). The June 2024 report also indicated that the student benefitted from "encouragement and praise to boost his self-esteem, which [was] low due to his poor academic skills" (id.).
b.Services delivered by AIM
On February 13, 2024, the parent signed a contract with AIM for the student to receive 10 periods per week of SETSS, two 30-minute sessions per week of OT, and full-time paraprofessional services for the 2023-24 school year (see Parent Ex. I).[15] However, during the hearing, the parent, the quality assurance supervisor from AIM, and the financial services individual from AIM each indicated that the student only received SETSS and OT, and no explanation was provided for the absence of the contracted for paraprofessional services (see Parent Exs. N ¶¶ 1, 13, 14; O ¶¶ 2, 3, 4; P ¶¶ 3, 7, 8).[16] Based on the provided affidavit testimony, AIM began delivering SETSS for the 12-month school year beginning July 5, 2023 and OT beginning on November 5, 2023 (see Parent Exs. N ¶¶ 13, 14; O ¶¶ 3, 4; P ¶¶ 7, 8).
The hearing record included certification information for the SETSS provider who worked with the student for both school years and license information for the occupational therapist who worked with the student for the 2023-24 school year (Parent Exs. K; P ¶¶ 10, 11). The SETSS provider had an initial certification, issued August 29, 2024, to teach students with disabilities from birth to grade two, and the occupational therapist obtained her license in 1997 (see Parent Ex. K). Prior to August 2024, the SETSS provider held an internship certificate to teach students with disabilities from birth to grade two, which was issued April 28, 2022 and expired May 18, 2024 (id. at p. 1).
The AIM quality assurance supervisor testified that the student was in either third or fourth grade and the general education classroom curriculum included "phonics books and . . . math curriculum books" (Tr. 1 pp. 97-98). He further testified that the SETSS provider collaborated with the student's nonpublic school teacher through "updates" on "progress or delays" (Tr. 1 pp. 94-95). During the hearing and in his affidavit, the AIM quality assurance supervisor testified that his role involved ensuring that the student's "educational team" worked together so that "the goals [were] being targeted the right way," and that he "collaborate[d] with the supervisory team to . . . make sure that all services [were] consistently addressing every individual student's needs" (Tr. 1 p. 82; Parent Ex. P ¶ 5).
Turning to the special education services delivered to the student, the SETSS provider indicated in his June 2024 report that the student "require[d] intensive individualized instruction and support to generalize skills within the classroom" and that he provided a "combination of pull-out and push-in services" (Parent Ex. L at p. 1). While the report described the services as a combination of push-in and pull-out services, the AIM quality assurance supervisor testified during the hearing that "[it was] mainly pull-out" given the student's difficulties with "focus[]" and "attention span" (Tr. 1 p. 96).
According to the AIM quality assurance supervisor's affidavit, the student's providers "prepare[d] for sessions, create[d] goals, wr[ote] progress reports, and me[t] with teachers and parents" in addition to providing their "direct [1:1] service to [the student]" (Parent Ex. P ¶ 13). Specifically, the quality assurance supervisor testified that "the provider" completed "quarterly assessments" that were then "entered in the progress report . . . which in this case [] was entered in the progress report towards the end of the year" (Tr. 1 p. 83). The quality assurance supervisor further testified that "[p]rogress reports [were] usually done twice a year" and that in the student's case, his goals were "reviewed quarterly" during each of the school years in question (Tr. 1 p. 83; Parent Ex. P ¶ 14). During the hearing, the quality assurance supervisor confirmed that he was involved with the development of the student's goals, for which they "used the goals . . . of the multiple IESPs that" they "had on file" (Tr. 1 pp. 83-84).
Regarding specially designed instruction, the hearing record included information about the strategies the SETSS provider used to address the student's needs during the 2023-24 school year. Specifically, according to the June 2024 AIM progress report, "[a] range of methodologies, techniques, and strategies" were "practiced" to facilitate the student's progress (id.).
To address the student's decoding needs, the SETSS provider indicated in the June 2024 AIM progress report that he used "modeling, reading programs, leveled reading, and encouragement" (Parent Ex. L at p. 2). The June 2024 report included that "repetition, modeling, role-playing, reading programs, reinforcements, and incentives" were used to address the student's reading comprehension (id.). To address writing needs, the SETSS provider reported using outlines for structure, as well as "weekly practice," and "review" to address spelling, and "modeling and verbal prompts" to assist the student to "write neatly" (id.). In math, the provider included in the June 2024 report that he used prompts and "manipulatives, counters, cues, incentives, and positive reinforcements" to facilitate development of "grade-level math skills" (id.).
The June 2024 AIM progress report indicated that the SETSS provider used similar strategies to address the student's language delays and difficulties with executive function (Parent Ex. L at pp. 2, 3). In addition, the provider included in his June 2024 report that he also used "language skills games," "picture scenes," "dramatic play," and books addressing expressive language (id.). According to the June 2024 report, the provider addressed the student's social skills through the use of encouragement, incentives, "[s]ocial skills training, role-playing, reading books, discussions, and language games" (id. at pp. 3-4).
The AIM quality assurance supervisor testified that the student's provider used "multiple curriculums" and a "multisensory approach with . . . predicting stories" to address the student's "comprehension and decoding" skills (Tr. 1 p. 96). The quality assurance supervisor also testified that the provider addressed the student's "math [], writing[,] and social-and-emotional skills" (Tr. 1 pp. 96-97). According to the quality assurance supervisor, the SETSS provider used "the Social Thinking" curriculum, which "could be used even when working with a child individually" along with "information from the general education teacher" to address the student's social skills (Tr. 1 p. 97).
As for progress, the AIM quality assurance supervisor testified via affidavit that the student's "progress [was] measured through quarterly assessments, consistent meetings with the providers and support staff, observation of [the student] in the classroom, and daily session notes" (Parent Ex. P ¶ 17). To monitor the student's progress, the quality assurance supervisor testified that the team met "once or twice a month, unless there was . . . a need for more intervention" (Tr. 1 p. 84). According to the quality assurance supervisor, the student's SETSS provider asked twice for support to assist the student with "his focusing and attention" as well as "how to help the student try to monitor his own progress" to encourage "more confidence" (Tr. 1 p. 85).
The June 2024 AIM progress report included several goals that addressed the student's reading, writing, math, social/emotional, and language skills (Parent Ex. L at pp. 4-6). According to the June 2024 report, progress toward goals was "measured using a combination of formal and informal assessment tools" and that these goals were "currently being addressed" (id. at p. 4).
According to the June 2024 AIM progress report, the student's progress was "moderate," and the provider indicated that the student's "weak language and attention skills" caused him to "learn[] new reading skills and decoding at a slow rate" (Parent Ex. L at pp. 1, 2). The June 2024 report identified the student as having demonstrated "improved" skills with "fluency and phonemic awareness" (id. at p. 1). The June 2024 report also indicated that the student had demonstrated "progress[] this year in his interactions with his peers" (id. at p. 3). In his affidavit, the AIM quality assurance supervisor testified that the student "ha[d] already shown signs of progress with his service providers" but that he continued to require those services to meet his needs (Parent Ex. P ¶ 18).
As for the contracted for OT services, the hearing record did not include an OT progress report or testimony from an OT provider to describe the services delivered to the student during the 2023-24 school year (see Tr. 1 pp. 1-108; Tr. 2 pp. 1-33; Parent Exs. A-E; G-L; N-Q; Dist. Exs. 2-12).
Based on the information in the hearing record, the IHO correctly found that the parent did not meet her burden to show that the unilaterally obtained SETSS and OT services were appropriate to meet the student's needs during the 2023-24 school year. In particular, the June 2024 AIM progress report noted the student’s difficulty in making progress during classroom instruction due to him being unfocused and inattentive, difficulty following multi-step instructions in the classroom setting, struggles with completing classwork unless an adult was present at his side prompting him until done, often got lost during academic and recreational activities, and needed constant help and reminders to integrate into classroom activities appropriately (Parent Ex. L). While the June 2024 progress report identified the student's needs and some specially designed activities the SETSS provider used with the student, it is unclear as to how the student's needs were addressed in the general education classroom as testimony indicated that services were provided almost entirely outside of the classroom as pullout services (Tr. 1 p. 96). The hearing record also lacks any information as to how the student’s identified language deficits were addressed by the unilaterally obtained services addressed those needs. Further, although OT was reportedly delivered, the hearing record lacks evidence regarding how those services were specially designed to meet the student's needs. Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students, under the totality of the circumstances, the evidence in the hearing record is lacking in how the provided services may have helped the student in his general education classes and how the student’s language and OT needs were met. Accordingly, the IHO's determination that the parent failed to meet her burden of proving that the unilaterally obtained services were appropriate is upheld.
2.2024-25 School Year
Turning to the student's needs during the 2024-25 school year, the SETSS provider wrote in June 2024 that the student "present[ed] with significant delays in cognition, reading readiness, expressive/receptive language, social/emotional development, and classroom functioning" (Parent Ex. L at p. 4). Despite that the AIM progress report indicated the student made "moderate progress," as of the time of the report, the SETSS provider indicated that the student continued to have "extremely substantial delays" identifying the student as having "difficulty keeping up with his studies" and as having "very poor" focus, such that the provider "strongly recommended" the student continue to receive 10 hours per week of SETSS (id.at pp. 1, 4).
On June 21, 2024, related to the 2024-25 school year, the parent signed a contract with AIM for an unspecified number of SETSS periods weekly and full-time paraprofessional services (see Parent Ex. J).[17] The parent, AIM quality assurance supervisor, and AIM financial services representative testified that AIM provided the student with 10 periods per week of SETSS and full-time paraprofessional services for the 12-month school year (Parent Exs. N ¶ 15; O ¶ 5; P ¶ 9). There was no explanation as to why OT, which AIM provided during the 2023-24 school year, was not included as part of the contract, but the parent indicated in her affidavit that she was "unable to locate providers for the [OT]" for the 2024-25 school year (Parent Ex. N ¶ 19).
Review of the evidence shows that except for the AIM contract and below-noted testimony, the parent did not enter any additional information specific to the 2024-25 school year. There are no invoices, session notes, or progress reports regarding the SETSS or paraprofessional services AIM provided to the student for the 2024-25 school year (see Tr. 1 pp. 1-108; Tr. 2 pp. 1-33; Parent Exs. A-E; G-L; N-Q; Dist. Exs. 2-12).
While testimony in the hearing record indicates that during the 2024-25 school the student received SETSS and paraprofessional services, there is nothing to show what occurred during these sessions or how any instruction or support provided may have related to the student's needs or access to his general education classes during the 2024-25 school year (Parent Exs. N ¶ 15; O ¶ 5; P ¶ 9). Additionally, although, as noted above with respect to the 2023-24 school year, the information available in the hearing record showed that the student needed support in the classroom in order to benefit from instruction and the hearing record did not explain how the unilateral program provided necessary supports.
With respect to paraprofessional services, a service that was delivered throughout the school day, the AIM supervisor testified that the service was used "to ensure that the child is—always being—being safe and being observed to avoid—any emergencies and to try to have the most—most pleasant … school setting" (Tr. 1 at p. 92). The AIM quality assurance supervisor then explained that the student was "very highly allergic," and that the student's health paraprofessional was trained on the prevention and intervention measures for allergic reactions and confirmed that he was qualified to perform CPR (Tr. 1 pp. 92-93, 99). However, as with the 2023-24 school year, there was no information provided as to how the student’s academic needs were addressed within the classroom, such as the student being unfocused and inattentive, having difficulty following multi-step instructions, his struggle with completing classwork without constant supervision, and his getting lost during academic activities.
Therefore, the evidence in the hearing record is insufficient to find that the special education services AIM provided to the student during the 2024-25 school year were appropriate, and there is no indication in the hearing record regarding how the student's paraprofessional services supported his needs and related to his placement in a general education setting. Accordingly, considering the totality of the the circumstances the IHO’s determination that the unilaterally obtained SETSS was appropriate is upheld and the IHO's determination that the parent is entitled to funding for paraprofessional services is reversed.[18]
Having found that the parent failed to demonstrate that the services obtained during the 2023-24 and 2024-25 school year were appropriate, the necessary inquiry is at an end and there is no need to address equitable considerations. The parent is not entitled to funding or reimbursement for the services obtained during either school year.
C.Pendency
I next turn to the district’s appeal of the IHO’s determination as to the student’s placement during the pendency of the proceeding. 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]).[19] 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).
The IHO found that the student's education program for the pendency of the proceeding was based on the June 2018 CPSE IEP; however, the IHO declined to issue an order identifying a specific agency or rate for delivery of the student’s services (IHO Decision at p. 3). The district argues that the IHO's finding, to the extent that it could be construed as directing the district to fund a program, rather than to implement the student’s pendency program, was in error. Specifically, the district contends that the parent rejected pendency when she enrolled the student at the nonpublic school and unilaterally obtained private services, because doing so "usurped" the district's ability to implement pendency.
Here, it is undisputed that the student was entitled to receive a pendency program based on the educational program outlined in the June 2018 CPSE IEP, which program consisted of 10 hours per week of SEIT services, three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT, as well as individual health paraprofessional services (Parent Ex. C at p. 27). Upon the parent’s filing of the due process complaint notice in this matter, it was incumbent on the district to deliver the student’s pendency services. 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).
However, the parent contracted with AIM for the delivery of special education services to the student in June 2024, prior to the filing of the due process complaint notice in this matter in July 2024 (Parent Exs. A-B; J). Additionally, after signing the contract with AIM, but before filing the due process complaint notice, the parent notified the district of her intent to enroll the student in a nonpublic school and make efforts to provide the student with prior recommended services (Parent Ex. E at p. 2). She also informed the district that "[n]othing in this document or any other communication . . . should be deemed as relieving the [d]istrict of its obligation to provide services under [p]endency" (id.). Nevertheless, review of the hearing record shows that the student’s pendency placement consisted of district provision of services pursuant to the June 2018 CPSE IEP and the parent unilaterally obtained services from AIM without any prior administrative proceedings establishing AIM as an appropriate provider of the student's services.
Therefore, under these facts, the parent cannot utilize pendency to recover funding for services delivered by AIM. There is no prior IHO or SRO decision establishing pendency under those terms and the parentally unilaterally obtained services for the student from AIM.[20]
VII. Conclusion
The totality of the circumstances does not support a finding that the unilaterally obtained services provided by AIM were specially designed to meet the student’s special education needs and, accordingly, the parent’s request for district funding of those services for both the 2023-24 and 2024-25 school years must be denied. In addition, the IHO’s determination that the parent is entitled to funding for paraprofessional services for the 2024-25 school year is reversed. Moreover, under the facts of this case, the parent cannot recover the costs of the services delivered by AIM as part of the student’s entitlement to pendency pursuant to the June 2018 CPSE IEP.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the April 7, 2025 IHO decision is modified by reversing the order for the district to fund paraprofessional services for the 2024-25 school year, and
IT IS FURTHER ORDERED that that the student is not entitled to district funding for services delivered by AIM as part of the student’s entitlement to pendency based on the June 2018 CPSE IEP.
Footnotes
[1] State law defines SEIT services (or, as referenced in State regulation, "Special Education Itinerant Services" [SEIS]) as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]). The student's CPSE IEP indicated that the 10 SEIT hours would be implemented as five two-hour sessions per week (Parent Ex. C at p. 27).
[2] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).
[3] 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.
[4] The hearing record did not include a January 2022 IESP. The parent’s June 2023 letter did not refer to the December 2022 IESP, which was the most recent IESP entered into evidence (see Parent Ex. D; Dist. Ex. 2).
[5] The letterhead for the contract and the provider report identifies AIM Educational Support Services, while the contract itself indicates an agreement between the parent and “Aim Further Inc,” with the signatory to the contract being identified as a representative from "AIM Further Inc," which suggests the two companies are affiliated in some matter (Parent Exs. I; J; L).
[6] AIM is not approved by the Commissioner of Education as a school or agency with which school districts may contract to instruct students with disabilities (see NYCRR 200.1[d]; 200.7).
[7] Although the AIM contract indicates the agency intended to deliver "SETSS/SEITS" during the 2023-24 school year, the student was of school-age at the time services delivered and, as SEIT services are intended for preschool students, the services delivered by AIM will be referred to as SETSS (Parent Exs. I at p. 2; L at p. 1).
[8] Parent Exhibit H and District Exhibit 6 are copies of the same May 31, 024 letter with the parent exhibit including a copy of an email and the district exhibit including a receipt stamp (Parent Ex. H; Dist. Ex. 6).
[9] The contract listed other services such as speech-language therapy, OT, and PT, but only "SETSS/SEIT" and paraprofessional services had a check mark next to the service (Parent Ex. J at p. 2).
[10] Although the parent alleged that the December 2022 CSE recommended indirect PT, the IESP reflected a recommendation for individual PT services to be delivered in a "[s]eparate [l]ocation [w]ith [p]rovider" (compare Parent Ex. A at p. 2, with Dist. Ex. 2 at p. 9).
[11] The transcripts restarted with page 1 on November 20, 2024; for the sake of clarity, the transcripts for the hearing on August 5, 2024, September 4, 2024, and October 8, 2024 will be cited to as Transcript 1 while the transcripts for November 20, 2024 and December 2, 2024 will be cited to as Transcript 2 (Tr. 1 pp. 1-108; Tr. 2 pp. 1-33).
[12] The IHO indicated she would consolidate the due process complaint notices for both school years, 2023-24 and 2024-25, on the first day of the hearing, August 5, 2024 (Tr. 1 pp. 5-6). Review of the IHO decision indicates that the two due process complaint notices were consolidated on August 5, 2024; however, a written order of consolidation was not included in the hearing record.
[13] 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).
[14] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from AIM Further (Educ. Law § 4404[1][c]).
[15] The contract for the 2023-24 school year indicated that the agency was "contracted to provide special education services . . . for the entire duration of the 2023-2024 school year" and did not clarify if that meant on a 10-month or 12-month basis (Parent Ex. I at p. 1).
[16] The student was recommended for speech-language therapy in the 2018 CPSE IEP, but not the 2022 IESP (Parent Ex. C at pp. 1, 27; Dist. Ex. 2 at p. 9). The June 2024 report reflected that the student exhibited language delays, and during the hearing, the AIM quality assurance supervisor was asked why speech-language therapy was not provided to the student (Tr. 1 p. 89; Parent Ex. L at p. 3). The AIM quality assurance supervisor testified that he could not "exactly" remember why the student had not received it, although he "guess[ed]" it was "due to a scheduling issue" (Tr. 1 p. 89).
[17] The AIM contract for the 2024-25 school year only included a check mark in the space that indicated the number of periods to be provided (Parent Ex. J at p. 2).
[18] While SROs have found that parents are not required to produce evidence that paraprofessional services, often delivered by "supplementary school personnel," provided the student with specially designed instruction per se, parents must come forward with evidence that describes the services and the delivery thereof to meet their burden. (Application of a Student with a Disability, Appeal No. 24-436, see Application of a Student with a Disability, Appeal No. 25-024).
[19] 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).
[20] I note that the district could accept a pendency placement by funding services, which would indicate agreement with the pendency placement. However, there is not evidence of the district having agreed to pendency in this manner.