STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-299
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 Elisa Hyman, PC, attorneys for petitioner, by Erin O'Connor, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail M. Eckstein, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for the costs of her son's home-based applied behavior analysis (ABA) services for the 2024-25 school year. The 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]).[1] 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[a]). 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 student in this matter began receiving special education services through the Early Intervention Program (EIP) in June 2016 (see Parent Ex. I at p. 1). The student's EIP consisted of § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804). school-based and home-based services: 10 hours per week of school-based ABA and 10 hours per week of home-based ABA; two 30-minute sessions per week of individual, school-based speech-language therapy and two sessions per week of individual, home-based speech-language therapy; and two 30-minute sessions per week of individual, home-based occupational therapy (OT) (id.). [2]
Evidence in the hearing record reflects that the student transitioned from receiving EIP services to receiving CPSE services for the 2017-18 school year, with a CPSE evaluation process completed in January 2017 and an IEP developed in May 2017 (see Parent Ex. I at pp. 1-2). In September 2017, the student—who had been found eligible to receive special education as a preschool student with a disability—began attending a nonpublic educational preschool program of the New York League for Early Learning, Inc. (NYLEL) (id. at p. 1). The evidence reveals that the student received 12-month programming consisting of the following special education program pursuant to the recommendations of a CPSE: a full-day, 8:1+2 special class placement; three 30-minute sessions per week of individual speech-language therapy; and three 30-minute sessions per week of individual OT (id.). The student's CPSE program also included four 45-minute sessions per year of parent counseling and training services (id.). Based on the evidence in the hearing record, the student remained at the NYLEL preschool program through the conclusion of the 2018-19 school year (see Parent Ex. A ¶ 4). [3]
Thereafter, the evidence indicates that, in March 2019, a CSE convened to conduct a "Turning 5" meeting in anticipation of the student's transition from receiving CPSE (preschool) services to receiving CSE (school-age) services and to develop an IEP for the 2019-20 school year (kindergarten) (Parent Ex. I at p. 2). The evidence reflects that the March 2019 CSE found the student eligible to receive special education as a student with autism and recommended the following special education program: a 6:1+1 special class placement (specialized school), three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and one 30-minute session per semester of parent counseling and training services (id. at p. 1; see Parent Ex. A ¶ 52). [4], [5]
For the 2019-20 school year, the parent rejected the student's IEP, unilaterally placed the student at Manhattan Star Academy (MSA), and through an administrative proceeding, sought reimbursement for the costs of the student's attendance at MSA and for the costs of home-based ABA services (see Parent Ex. A ¶ 65-66). As a result of that administrative proceeding—and as relevant to this appeal—an IHO ordered the district to fund the costs of 10 hours per week of individual, home-based ABA services at a reasonable market rate (for the 2019-20 school year) (id. ¶ 66). Thereafter, the parent was awarded funding for the student's tuition at MSA and 10 hours per week of home-based ABA services through administrative proceedings that were consecutively held for the 2020-21, 2021-22, 2022-23, and 2023-24 school years (id. ¶¶ 9-11, 68-90).
In February 2024, during the 2023-24 school year, the student began working with a Board Certified Behavior Analyst (BCBA), who initially delivered home-based ABA services to the student one day per week, but then in April 2024, began delivering two sessions per week of ABA services to the student (see Parent Ex. O ¶¶ 1-2, 19; see also Dec. 6, 2024 Tr. pp. 42-44). [6] According to the BCBA's testimony, the student received a total of seven and one-half hours per week of ABA services due to "limited availability for each therapist and the decision to avoid adding another therapist due to behavior challenges associated with transitions" (Parent Ex. O ¶ 19). [7]
Over the course of two days in March 2024, while the student continued to attend MSA, the parent privately obtained a neuropsychological evaluation of the student (March 2024 neuropsychological evaluation) (see Parent Ex. H at p. 2). According to the March 2024 neuropsychological evaluation report, the student's then-current classroom at MSA consisted of eight students, but the psychologist indicated that, even within that "small, supportive, and structured full time special education setting, . . . , with 1:1 support, [the student's] behaviors interfere[d] with class activities, [we]re disruptive, and at times violent" (id. at p. 3). The psychologist who conducted the evaluation noted further that MSA had "deemed that [the student] w[ould] require a more intense special education program with more ABA support and 1:1 instruction" (id.). In addition, the psychologist noted that the student's "aggressive behaviors ha[d] reportedly increased, and the school [wa]s recommending that he receive 1:1 direct instruction" (id.). Overall, the psychologist indicated that, with respect to the tasks presented during the evaluation, the student "could not complete many of the tasks," and "tasks had to be discontinued," thus, he noted that the student "was able to engage in very little formal testing" (id. at pp. 3-4).
Based on the testing results, the psychologist concluded that the student presented with "significant challenges in language, social communication and pragmatics, attention, adaptive skills, and self-regulation" (Parent Ex. H at p. 6). The psychologist also found that the student continued to "present with symptoms and impairments indicative of autism spectrum disorder, with accompanying language impairment; Level 3—Severe" (id.). In addition, the psychologist indicated that the student presented with "significant concerns regarding his sleep schedule which must be addressed" (id.). In light of the student's "deficits in language, attention, and self-directed nature, as well as his significant fatigue, variabilities in alertness, and sleep deprivation," the psychologist noted that the evaluation results were "considered a minimum estimate of his cognitive capacities, and [were] not reflective of his true abilities" (id.).
Turning to the student's cognitive functioning, the psychologist pointed to the student's inability to consistently engage in the testing process and the tasks presented to him as a basis for concluding that his "overall cognitive functioning could not be estimated" (Parent Ex. H at p. 6). Additionally, the psychologist noted that the student "did not have enough language to engage in many verbal measures nor did he possess requisite skills of looking and pointing in order to assess his nonverbal skills"; therefore, many of the "tasks could not be administered or had to be discontinued" (id.). Notably, however, the student demonstrated "verbal labeling and understanding of language concepts," as well as "nonverbal reasoning skills," that fell "below the [fir]st percentile" (id.). With respect to preacademic skills, the student's "letter and number recognition skills" fell in the "Very Low" range; similarly, his "adaptive skills and socialcommunication functioning" fell "well below the expected level for his age overall" (id.). As a final point, the psychologist indicated that the "evaluation took place without the distraction of peers or a busy classroom environment, in a structured 1:2 setting, with a behavioral technician providing significant behavioral support" (id.). Nevertheless, the student "continued to demonstrate significant challenges with language, attention, self-regulation, self-direction, and social reciprocity" (id.). The psychologist further noted that, as the student progressed academically, he required "1:1 direct instruction" (id.).
Based on the student's testing results, the psychologist made the following educational placement recommendations, in part, to address his needs: "a structured, full-time 1:1 program with consistent ABA data-driven, direct instruction provided throughout the day, 5 days per week, 12 months per year"; and a home-based ABA program to "promote skills of functional communication, self-regulation, socialization, reciprocity, and attention" that was supervised by a BCBA, who would also work with the student for approximately two hours per week (Parent Ex. H at pp. 6-7).[8] According to the psychologist, the home-based program needed to "provide intensive interventions for his language, motor, attentional, and social difficulties, as well as foster[ing] independence in specific adaptive skills, including toileting, and activities of daily living" (id. at p. 7). The psychologist also noted that it was "essential" for the home-based and school-based programs to communicate to "promote progress and generalization of skills across settings" (id.). 9
Evidence in the hearing record reflects that, near the conclusion of the 2023-24 school year, MSA advised the parent that the student required a "1:1 ABA program because his interfering behaviors were increasing" (Parent Ex. M ¶ 24).
On June 13, 2024, the parent electronically executed an "Enrollment Contract" with "Happy Hour 4 Kids, Inc., d/b/a 'The Foundry Center' and 'RISE NY' and 'Hubbard Day' and 'Emerald Learning Center'" (Foundry) for the student's attendance during the 2024-25 school year (12-month program), beginning July 8, 2024 and concluding June 26, 2025 (Parent Ex. C at pp. 1, 5).
A. Due Process Complaint Notice
By due process complaint notice dated June 27, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2024-25 school year based on various procedural and substantive violations (see Parent Ex. A at ¶¶ 91-121). 10 As relevant to relief herein, the parent sought an order directing the district to either provide or fund the costs of 10 hours per week of home-based ABA services on a 12-month basis, and to provide compensatory educational services for any gaps in services (id. ¶¶ 127-29). [9]
B. Impartial Hearing Officer Decision
On August 9, 2024, the parties proceeded to an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH), which concluded on December 6, 2024, after five days of proceedings (see Aug. [10], 2024 Tr. pp. 1-12; Sept. 20, 2024 Tr. pp. 13-29; Oct. 17, 2024 Tr. pp. 1-9; Nov. 14, 2024 Tr. pp. 10-14; Dec. 6, 2024 Tr. pp. 15-60). In a decision dated April 10, 2025, the IHO found that, over the course of the first four impartial hearing dates, the district conceded that it failed to offer the student a FAPE for the 2024-25 school year, the parent had withdrawn her "pendency claims with respect to the unilateral placement because the placement had changed to a more restrictive setting," and the parent continued to seek[11] hours per week of home-based ABA services pursuant to pendency (as well as transportation services and two hours per week of parent training per week) (IHO Decision at pp. 3-4).[12] The IHO indicated that, on the final day of the impartial hearing held in December 2024, although the district had conceded FAPE, the district continued to challenge the appropriateness of the parent's unilateral placement of the student at Foundry and her request for 10 hours per week of home-based ABA services; the district did not, however, present any testimonial or documentary evidence (id. at p. 4). In addition, the IHO indicated that the parent had withdrawn her "request for assistive technology and for lunch funding," but the parent continued to seek funding for the costs of the student's unilateral placement at Foundry, for 10 hours per week of home-based ABA services, and for the district to continue to provide transportation services (id.). According to the IHO, the parent noted in her opening statement that the student was then-currently receiving seven and one-half hours per week of home-based ABA services pursuant to pendency because the parent had been unable to locate an "experienced ABA provider with sufficient availability and training" (id.).
As noted by the IHO, the district—as part of its closing statement—"agreed that the [p]arent ha[d] proven that the [unilateral] placement [wa]s appropriate and that the [s]tudent ha[d] made significant progress at the [unilateral] placement" (IHO Decision at p. 6). However, the district continued to assert that the parent was not entitled to an award of funding for 10 hours per week of home-based ABA services because it was only "required to provide services to allow a student to make meaningful progress, and that if a student [wa]s making meaning progress and the setting [wa]s appropriate, that [wa]s all the [d]istrict [wa]s required to provide for a student" (id.). The IHO also noted that, according to the district, the "BCBA's testimony demonstrated that while the [s]tudent [wa]s making progress with her ABA services, the [s]tudent's progress [wa]s largely related to behavioral issues at home, which affect[ed] his home life and [wa]s not related to academics" (id. at pp. 6-7). In addition, the IHO indicated that the district asserted that the home-based ABA services maximized the student's potential, and thus, the district was not required to fund those services (id. at p. 7).
Next, the IHO summarized the findings of fact, and then turned to the conclusions of law, which included a recitation of the legal standard applicable to this matter (see IHO Decision at pp. 7-15). The IHO found that the district failed to offer the student a FAPE for the 2024-25 school year and that Foundry was an appropriate unilateral placement for the student based on the evidence in the hearing record and the district's agreement that Foundry was appropriate (id. at pp. 13, 15).
With respect to the home-based ABA services, the IHO found that the evidence demonstrated that, while the student "benefit[ted] from the instruction," the home-based ABA services "reinforce[d] skills and generalize[d] his skills across home and school settings" (IHO Decision at p. 15). The IHO also found that the evidence indicated that the home-based ABA services were not provided to "prevent regression," and the evidence otherwise reflected that the student was "making significant progress through [Foundry]'s program that [wa]s individualized to meet his unique special education needs" (id.). Citing to legal authority, the IHO noted that although home-based ABA services could be awarded pursuant to the IDEA, the district was not "obligated to 'furnish every special service necessary to maximize each handicapped child's potential' . . . or to provide 'everything that might be thought desirable by loving parents'" (id. at pp. 15-16 [internal citations omitted]). The IHO additionally noted that districts were not required to "design educational programs to address a student's difficulties in generalizing skills to other settings outside of the school environment, particularly where it [wa]s determined that the student [wa]s otherwise likely to make progress, at least in the classroom setting" (id. at p. 17 [internal citations omitted]). For these reasons, the IHO denied the parent's request for the district to fund the costs of the student's home-based ABA services (id.).
Next, the IHO examined equitable considerations, and determined that no equitable issues precluded or limited an award of tuition reimbursement in this matter (see IHO Decision at p. 17). The IHO also found that the parent was entitled to direct or prospective funding for the costs of the student's tuition at Foundry based on the evidence in the hearing record (id. at pp. 17-18). As a final point, the IHO determined that the district was required to continue to provide the student with transportation services to Foundry on a 12-month basis (id. at p. 18). [13]
In light of these findings, the IHO ordered the district to reimburse or directly fund the costs of the student's tuition at Foundry for the 2024-25 school year and to continue to provide transportation services to the student (see IHO Decision at p. 19).
IV. Appeal for State-Level Review
The parent appeals, arguing that the IHO erred by denying her request for the district to fund the costs of 10 hours per week of home-based ABA services during the 2024-25 school year. In support of this assertion, the parent argues that the IHO improperly applied a Burlington/Carter analysis to determine whether the student was entitled to receive home-based ABA services, which the student had been receiving pursuant to pendency and which constituted an agreement between the parties as to the student's placement. In addition, the parent asserts that the IHO's analysis was not well reasoned, and ignored evidence in the hearing record. The parent asserts further that the IHO improperly terminated the student's home-based ABA services without any evaluative information supporting that decision. Alternatively, the parent argues that she sustained her burden to establish the appropriateness of the home-based ABA services under a Burlington/Carter analysis, noting that evidence in the hearing record—and in particular, the evaluative information—supported the student's need for home-based ABA services. The parent contends that, contrary to the IHO's finding, the home-based services were not for the purpose of generalization of skills, but instead, were necessary to teach foundational skills, acted as an extension of the student's school day, and served to address the student's needs that could not be addressed during a limited school day. Additionally, the parent contends that the home-based ABA services were necessary for the student's overall ability to learn and to make progress, both academically and functionally. The parent also contends that the home-based ABA services were specially-designed instruction and were required to provide the student with a FAPE. Next, the parent argues that the IHO's decision was written based on illegal OATH policies or practices— including predetermination—noting that several decisions written by other OATH IHOs used the same verbatim language when denying a parent's request for home-based ABA services. The parent submits additional documentary evidence to support these assertions. As a final matter, the parent asserts that the IHO failed to address the student's claims pursuant to section 504 of the Rehabilitation Act of 1973 (20 U.S.C. § 794) (section 504). As relief, the parent seeks to reverse the IHO's finding that the student's home-based ABA services were not appropriate and seeks an order directing that home-based ABA services were appropriate and should be ordered as part of the student's educational program for the 2024-25 school year.
In an answer, the district responds to the parent's allegations and generally argues to uphold the IHO's decision in its entirety. In addition, the district objects to the consideration of the parent's additional documentary evidence.
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 generally Forest 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]). [14]
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 Matters—Scope of Review
With respect to the parent's arguments concerning illegal OATH policies and practices related to denying home-based ABA services, as well as the IHO's alleged failure to rule on the parent's section 504 claims, it is well settled that 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"]). Thus, matters concerning OATH policies and practices are beyond an SRO's jurisdiction.[15] Additionally, it is well settled that an SRO lacks jurisdiction to consider a parent's challenge to an IHO's failure or refusal to rule on section 504, and courts have 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]). For these reasons, the parent's arguments related to OATH policies and practices, as well as her section 504 claims, will not be further discussed.
Turning to the merits, as the district has not appealed the IHO's determinations in this matter that the district failed to offer the student a FAPE for the 2024-25 school year, that Foundry was an appropriate unilateral placement, that equitable considerations weighed in favor of the parent's request for the district to fund the costs of the student's tuition at Foundry for the 2024-25 school year, and that the district was required to provide transportation services to the student, those 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]). Accordingly, the only remaining issue pertains to the appropriateness of the home-based ABA services. However, at this juncture, it appears that the parent has already received all of the relief she sought and was entitled to receive, pursuant to pendency. Consequently, it is necessary to examine whether the parent's disputed issues on appeal have been rendered moot.
B. Mootness
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X, 2008 WL 4890440, at *12; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne,
50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, in the September 12, 2024 due process complaint notice, as relief and as relevant to a mootness discussion, the parent sought funding for 10 hours per week of home-based ABA services for the 2024-25 school year (see Parent Ex. A at pp. 13-14). Based on the parties' agreement, the IHO in this matter correctly found that the student's pendency lay in the unappealed October 2023 IHO decision and ordered the district to fund 10 hours per week of individual home-based ABA services during the pendency of the proceedings (see Interim IHO Decision at p. 1), which has now encompassed the entirety of the 2024-25 school year. While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the student received, or was entitled to receive, services under pendency for the entirety of the 12-month, 2024-25 school year, as well as during the parent's pending appeal, and inevitably, past the time for developing a new IEP for the student for the 2025-26 school year, and with respect to the relief at issue on appeal, the parent's due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Ex. A at pp. 13-14). Moreover, during this appeal, counsel for the district represented, in correspondence to this office requesting extensions, that the student was receiving services pursuant to pendency. Accordingly, regardless of the outcome of the parent's appeal of the IHO's determination regarding the appropriateness of the home-based unilaterally obtained services, the parent is entitled to all of 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 programming for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year (see IHO Decision at pp. 17, 19), and the IHO's determination that the home-based unilaterally obtained services were not appropriate, if upheld, would not constitute a pendency changing event because it was not in the parent's favor (see Letter to Hampden, 49 IDELR 197 [discussing the effect on pendency of a unappealed IHO decision in the parent's favor]; see also Mondano v. Banks, 2026 WL 32147, at *10 [S.D.N.Y. Jan. 5, 2026] [finding that an SRO decision that agrees with the district may not be treated as an agreement for purposes of pendency]). Accordingly, there can be no pendency changing determination in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE— is no longer at issue in this proceeding. Here, the parties' dispute centers around the particular home-based services the parent obtained, in part, as both pendency services and as self-help to remedy the district's denial of a FAPE to the student. Undermining any argument that a finding of appropriateness of the home-based services is not moot, is the parent's argument on appeal that the home-based ABA services should not have been part of a Burlington/Carter analysis because they were part of the student's last agreed upon educational program. As the FAPE determination has already been addressed and the only issues in this matter relate to the appropriateness of unilaterally obtained services, if that, and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding; therefore, the FAPE violation cannot be deemed to have repeated such that it can be used to justify a finding that the matter is "capable of repetition, yet evading review." In addition, there is no indication that the parent has pursued private services at district expense for the 2025-26—or subsequent—school year making it distinguishable from other matters that have viewed disputes over private services potentially capable of repetition given evidence of newly filed complaints seeking similar relief for a new school year (see Cohen, 2025 WL 3715102, at *3 [finding that the parent satisfied the capable of repetition test given evidence that the parent "ha[d] already filed" a due process complaint notice for the subsequent school year that sought "the same level of funding for transportation expenses that she sought in the" matter before the court]).
Even if the dispute here could be repeated, a determination in this matter would be of little consequence, as detailed procedural and substantive fact findings must be made regarding each disputed IEP, school year, or unilateral placement, and administrative hearing officers cannot rely on facts from one school year to make determinations about a different school year (see J.R. v. New York City Dep't of Educ., 748 Fed. App'x 382, 386 [2d Cir. Sept. 27, 2018] [stating that "the [district's] funding of [the student's] schooling in other years is irrelevant: 'the adequacy vel non of an IEP . . . is to be judged on its own terms'" and that whether the district offered the student "an appropriate placement in other years 'makes no difference' to the question of whether the IEP provided a FAPE" in the school year at issue], quoting M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 [2d Cir. 2000]; but see Cohen v. Aviles-Ramos, 2025 WL 3715102, at *3 [S.D.N.Y. Dec. 22, 2025] [noting that the district in that matter did not present a reason to believe that a determination on funding for private transportation services would be subject to an annual reassessment]).Because there is no longer a dispute as to the student's educational programming and no reasonable expectation or demonstrated probability that the dispute will reoccur, there is no district action "capable of repetition, yet evading review." As such, the issues presented in this matter do not fit into the mootness exception as they are not capable of repetition yet evading review. Based on the foregoing, the matter is moot as there is no further relief that may be granted (see Beckford v. Aviles-Ramos, 2025 WL 2781539, at *4 [S.D.N.Y. Sept. 30, 2025] [finding parent's claim for tuition and related services was moot because defendant had already paid the tuition and related services expenses required by the IHO's decision, and noting that the 'hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed']).
VII. Conclusion
Having determined that there is no further relief that may be granted, the necessary inquiry is at an end. I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS DISMISSED.
Dated: Albany, New York
May 26, 2026 STEVEN KROLAK
Footnotes
[1] Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C.
[2] According to the evidence in the hearing record, the student attended an "ABA classroom" in preschool (Parent Ex. I at p. 1).
[3] Based on a classroom observation of the student in June 2019, the student's preschool classroom consisted of the following: nine students, one classroom teacher, two classroom paraprofessionals, and an individual paraprofessional assigned to another student in the classroom (see Parent Ex. I at p. 3).
[4] 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]).
[5] It appears that a CSE reconvened in May 2019 because the parent was unable to attend the March 2019 CSE meeting; however, the evidence reveals that, although some of the annual goals were modified and the May 2019 CSE added the services of a part-time paraprofessional, the student's overall special education program in the March 2019 and May 2019 IEPs remained essentially the same (see Parent Ex. B ¶¶ 52, 55-56, 58-59).
[6] Transcripts of proceedings that took place on August 9 and September 20, 2024 are consecutively paginated with each other (see Tr. pp. 1-29); however, transcripts of the proceeding that took place on October 17, November 14, and December 6, are separately paginated from the first two transcripts, but remain consecutively paginated from October through December (see Tr. pp. 1-60). For ease of reference, citations to all of the transcripts will be preceded by the date (see, e.g., Aug. 9, 2024 Tr. pp. 1-12).
[7] At the impartial hearing, the BCBA testified that she provided the student with five hours per week of home-based ABA services, for two and one-half hours per day on Wednesday and Thursday; she also testified that this had been her schedule to deliver services to the student since April 2024 (see Dec. 6, 2024 Tr. pp. 44-45). The BCBA testified further that a second provider had initially delivered an additional five hours per week of home-based ABA services, and this second provider had been working with the student for approximately one and one-half years (see Dec. 6, 2024 Tr. pp. 48-49). The BCBA then clarified that the second provider—at the time of the impartial hearing in December 2024—was only delivering a total of two and one-half hours per week of home-based ABA services to the student due to other obligations that reduced her availability (see Dec. 6, 2024 Tr. p. 49). Evidence in the hearing record reflects that the student's second home-based ABA provider was also a BCBA (compare Dec. 6, 2024 Tr. pp. 47-49, with Parent Ex. K at p. 1).
[8] The psychologist did not recommend a specific frequency or duration of home-based ABA services in the March 2024 neuropsychological evaluation report; however, at the time of the impartial hearing, the psychologist testified that he understood the student was mandated to receive "10 hours" per week of home-based ABA services, and he agreed that the student "should receive this amount at minimum" (compare Parent Ex. H at pp. 6-7, with Parent Ex. M ¶ 53).
[9] The evidence in the hearing record reflects that the parent sent a copy of the March 2024 neuropsychological evaluation report to the district as an attachment to an email dated June 19, 2024 (see Parent Ex. H at p. 1). In the email, the parent asked for a CSE meeting to discuss the testing results (id.).
[10] Given the student's date of birth, it appears that he would have been considered, chronologically, as a fifth grade student during the 2024-25 school year.
[11] A Foundry attendance document reflects that the student began attending Foundry on July 8, 2024 (see Parent Ex. D).
[12] On October 17, 2024, the IHO issued an interim decision on pendency, indicating that the parties had agreed to the following as the student's pendency placement based on an unappealed IHO decision, dated October 10, 2023: round-trip, curb-to-curb transportation (limited travel time) services (instructional days only, 12-month basis); 10 hours per week of home-based ABA services (12-month basis); and two hours per week of parent training (12-month basis) (see Interim IHO Decision on p. 1).
[13] With respect the parent's claims alleged pursuant to section 504, the IHO determined that such claims were "subsumed within the framework of the IDEA," and therefore, the IHO indicated that there was no basis upon which to conduct a "separate analysis and discussion" (IHO Decision at p. 19).
[14] 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).
[15] As a result, the parent's additional documentary evidence submitted in support of these assertions will not be considered. To the extent that the additional documentary evidence was intended to support the parent's claims seeking to reverse the IHO's finding that the home-based ABA services were for the purpose of generalization of skills and thus, not appropriate, generally, 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]).