STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-301
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Toni L. Mincieli, 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, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from a decision of an impartial hearing officer (IHO) determining her son's (the student's) pendency placement and denying her request that respondent (the district) fund the cost of unilaterally-obtained special education teacher support services (SETSS) or special education itinerant services (SEIS)provided to the student for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which granted pendency. The appeal must be dismissed. The cross-appeal must be sustained in part.
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 CSE that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail. Briefly, a Committee on Preschool Special Education (CPSE) convened on July 17, 2020, determined that the student was eligible for special education as a preschool student with a disability, and developed a preschool IEP with a projected implementation date of September 1, 2020, that recommended that the student receive five hours per week of individual special education itinerant teacher services (SEIS), two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual physical therapy (PT), and two 30-minute sessions per week of individual occupational therapy (OT) (Parent Ex. B at p. 13).[1]
On May 3, 2022, a turning-five CSE convened, determined that the student was eligible for special education as a student with an other health impairment, and developed an IESP with a projected implementation date of September 1, 2022, that recommended the student receive two 30-minute sessions per week of individual OT (Dist. Ex. 2 at p. 6).[2], [3]
The following year, the parent signed an agreement for services with The Children's Resources (Children's Resources), effective September 1, 2023, to provide the student with five hours of SEIS services per week at a rate of $175 per hour during the 2023-24 school year (Parent Ex. C).
A. Due Process Complaint Notice
In a due process complaint notice dated September 10, 2023, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). The parent asserted that the last agreed upon program developed by the district for the student was the July 2020 preschool IEP and that the student required the same related services each week during the 2023-24 school year as set forth in the July 2020 IEP (id. at p. 1). The parent claimed that she could not locate providers to work with the student at the district's standard rates for the 2023-24 school year and the district failed to provide any (id.). As relief, the parent requested an order to: (1) schedule a pendency hearing and require the district to continue the student's special education and related services under the student's automatic pendency entitlement; (2) schedule an impartial hearing and award five sessions per week of SEIS at an enhanced rate for the entire 2023-24 school year; and (3) award all related services and aides set forth in the July 2020 IEP, or direct the district to fund these services at the parent's chosen providers' rate, even if higher than the district's standard rate (id.). The district did not submit a response to the due process complaint notice.
B. Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed and a hearing was held on May 6, 2024 (Tr. pp. 1-74). At the hearing, the district conceded that there was no evidence in the hearing record that the district provided service providers for the student for the 2023-24 school year (Tr. p. 22). The district also requested permission from the IHO to amend its disclosure packet to add documentary evidence regarding a district reevaluation of the student and offer of a public school placement for the 2023-24 school year (Tr. p. 22). The parent's attorney opposed the district's request on the grounds that it was untimely and prejudicial, and the IHO did not grant the district's request to allow late disclosures in order to offer the new material as evidence (Tr. pp. 23-24).
In a final decision dated April 11, 2025, the IHO concluded that the parent was entitled to pendency based on the student's May 2022 IESP and not the July 2020 CPSE IEP requested by the parent (IHO Decision at p. 5).
Next, the IHO described legal standards for students who are dually-enrolled by their parents in nonpublic schools and through due process seek relief from school districts for unilaterally-obtained services (IHO Decision at pp. 6-7). Applying a Burlington/Carter standard, the IHO first determined that the district failed to provide the student a FAPE during the 2023-24 school year, noting that the district conceded during the hearing that there was no evidence that the district provided the student with service providers during the 2023-24 school year (id. at pp. 7-8).
Before analyzing the appropriateness of the unilaterally-obtained programming from Children's Resources, the IHO noted that the parent's attorney argued during the impartial hearing that the parent was unaware of the May 2022 IESP, challenged the admissibility of the May 2022 IESP on that basis, and argued that the July 2020 CPSE IEP constituted the student's most current IEP (IHO Decision at p. 8). The IHO concluded that the parent did not testify or call other individuals to testify about whether the May 2022 CSE meeting took place (id.). The IHO additionally noted that the May 2022 IESP itself reflected concerns raised by the parent during that CSE meeting, and the IHO therefore discredited the arguments that the May 2022 CSE meeting did not occur (id. at pp. 8-9). Accordingly, the IHO determined that the student's May 2022 IESP was the operative program for the student's 2023-24 school year (id. at p. 9). Unlike the July 2020 CPSE IEP that recommended the student receive SEIT services and related services of speech-language therapy, OT, and PT, the May 2022 IESP recommended that the student receive OT only (id.). The IHO determined that the student did not receive any unilaterally-obtained OT services consistent with the May 2022 IESP during the 2023-24 school year (id.).
In addition, the IHO determined that the evidence in the hearing record did not support the appropriateness of the special education services unilaterally-obtained by the parent (IHO Decision at p. 10). The IHO noted that OT services listed in the May 2022 IESP were based on the CSE's determination of what was then appropriate for the student and that there was no evidence of the parent's disagreement or dispute with the program or recommendations in the May 2022 IESP (id.). Accordingly, the IHO determined that the parent failed show the appropriateness of the services from Children's Resources that she obtained for the student.
Although the IHO held that Children's Resources was not appropriate, the IHO went on to conduct an analysis of equitable considerations under the Burlington/Carter standard (IHO Decision at pp. 10-13). The IHO concluded that the hearing record was devoid of any evidence that the parent had notified the district of her intention to "contest [s]tudent's program or services, select a private service provider, and seek [d]istrict reimbursement or direct payment to Parent's unilaterally selected provider" (IHO Decision at p. 13). The IHO also took issue with the cost of the private services obtained by the parent. In examining the reasonableness of the hourly rate charged by Children's Resources, the IHO noted that its executive director did not know whether the student attended a public or private school for the 2023-24 school year (IHO Decision at p. 12; Tr. p. 44). In addition, the executive director testified that the July 2020 CPSE IEP was not appropriate for a student enrolled in the first grade for the 2023-24 school year (IHO Decision at p. 12; Tr. p. 46). The IHO further noted that the executive director testified that $90 of the $175 hourly charge was paid to the provider with the $85 per hour balance retained by the agency (IHO Decision at p. 12; Tr. p. 48). The retained balance included not only overhead, but the repayment of loans the agency elected to take out to support its operational expenses together with attorneys' fees for parents to bring due process complaints against the district (IHO Decision at p. 12; Tr. p. 49). Based on the foregoing, the IHO concluded that the $175 hourly rate requested by the parent for the unilaterally-obtained services from Children's Resources was not justified by the hearing record (IHO Decision at p. 13).
Turning to the parent's request for a compensatory bank of hours for OT, the IHO found that a bank of 36 compensatory hours was appropriate as the May 2022 IESP had recommended two 30-minute sessions per week for the 10-month, 36-week 2023-24 school year and the district had failed to provide the services (IHO Decision at p. 13).[4]
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in holding that a pendency placement was based on the May 2022 IESP rather than the July CPSE 2020 IEP. The parent maintains that during proceedings conducted pursuant to the IDEA, unless the parent and the district otherwise agree, the child is to remain in the then-current educational placement. The parent asserts that she never agreed to any program other than that set forth in the July 2020 IEP. As such, the parent maintains that the student was entitled to up to five hours per week of SEIT under pendency and the parent was entitled to full funding of the private services obtained by the parent.
Next, the parent argues that the IHO erred in applying a Burlington/Carter analysis to determine the appropriateness of Children's Resources. The parent argues that where a school district declines its obligation to provide services it was obligated to provide and allows a parent to implement those services, the parent is entitled to funding of their chosen providers. Alternatively, the parent argues that to the extent that a showing that Children's Resources met the unique needs of the student was required, such a showing was supported by the hearing record. The parent maintains that she placed in the record a Children's Resources progress report submitted for the school year at issue.[5] Therein, the provider identified the specific interventions utilized to address the student's unique needs.
Finally, the parent argues that the IHO erred in determining that equitable considerations weighed against the parent. Regarding the alleged lack of notice to the district, the parent maintains that a 10-day notice was not required because the parent did not receive a procedural safeguards notice from the district. As to the IHO's alternative analysis that the hourly rates of Children's Resources were excessive, the parent argues that the burden to prove the unreasonableness of the rates rested with the district, which provided no such proof.
In an answer with cross-appeal, the district argues, in pertinent part, that the IHO erred in her pendency determination and should have found that the student was not entitled to pendency at all. The district maintains that while it does not dispute that the parent's claim that pendency would be defined the July 2020 IEP, the parent is precluded from seeking relief on a pendency basis because she sought implementation of only one of the services recommended in that IEP, namely direct funding for "SEIT/adjusted special education teacher services," and not the recommended OT, PT, or speech-language therapy.[6] The district argues that pendency is not a divisible, a-la-carte program that may change at any given time by involving only some elements of a single program or multiple programs. Accordingly, the district argues that the parent rejected pendency and is not entitled to relief on that basis.
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]).[7]
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
Preliminarily, the district does not challenge that it failed to offer a FAPE or equitable services for the 2023-24 school year and does not challenge the IHO's award of 36 hours of OT as compensatory education. Therefore, these determinations 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 Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
In addition, the parent submits with its request for review two proposed exhibits and requests that they both be considered on appeal. Generally, documentary evidence not presented at an impartial hearing is 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]; 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]). Proposed SRO Exhibit A is a pendency implementation form containing a conformed signature on behalf of the district dated January 5, 2023 (Exhibit A to the Req. for Rev.). Proposed SRO Exhibit B is a revised resolution agreement dated January 23, 2023, signed by both the parent and the district, that resolved issues raised at an impartial hearing relating to the 2022-23 school year (Exhibit B to the Req. for Rev.). I find proposed SRO Exhibit A to be unnecessary to reach a determination of the issues in this matter. However, I accept proposed SRO Exhibit B as it is relevant and necessary to the rendering of a decision on the issue of pendency.
A. Pendency
Initially, during the pendency of any proceedings relating to the identification, evaluation or placement of the student, 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 (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino, 959 F.3d at 531; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. of the 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]).[8] 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 to "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 Cent. Sch. Dist. Bd. of Educ., 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).
During the impartial hearing, the issue arose as to whether the July 2020 CPSE IEP or the May 2022 IESP constituted the basis of the student's pendency placement (Tr. pp. 27-29). Without the benefit of the later produced resolution agreement as part of the hearing record, it was understandable that IHO would have concluded that pendency was based upon the May 2022 IESP—a program that did not include SEIS or other services from a special education teacher. However, the resolution agreement makes it clear that, by the agreement of both parties, no other services were modified and that SETSS was added to the student's special education programming for the 2022-23 school year and consequently, I conclude that the May 2022 IESP, together with the resolution agreement, constitute the basis of the student's then current educational placement (Dist. Ex. 2; SRO Ex. B).
That determined, what the parent cannot do is to assert that the July 2020 CPSE IEP with SEIS is the basis of pendency, privately contract for SEIS services with her preferred provider, Children's Resources, and then demand payment for Children's Resources under a pendency theory.[9] To the extent the parent attempted to direct the manner in which the district implements pendency, the Second Circuit has held that the district has "preexisting and independent authority to determine how to provide the most-recently-agreed-upon educational program" and it is up to the district and not the parent to decide how a student's pendency program is implemented, provided that the district does so in good faith (Ventura de Paulino, 959 F.3d at 534; see T.M., 752 F.3d at 171).
Here, it was the parent, not the district, who altered the status quo for purposes of the stay-put. The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35). The Court described that:
[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.
(id. at 534).
In short, the parent's decision to unilaterally obtain private services from Children's Resources with the consent of the school district officials constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]). The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parent had not been found appropriate in any administrative proceeding. In light of the forgoing I am constrained to reverse the IHO's pendency determination that the services consisted of OT only, but the parent's argument that pendency is based upon the July 2020 CPSE IEP must also be rejected and, furthermore, she may not obtain payment for Children's Resources on a pendency basis.[10]
B. Privately-Obtained SEIS
This matter presents an atypical posture in which the student remained enrolled in a public school while the parent, without district consent, privately arranged for SEIS to be delivered within the public school. The record is notably sparse regarding delivery of education to the student in the public school, a gap attributable to both parties' litigation strategy of minimizing any description of the student's educational experiences in the public school during the year in question. Notwithstanding its dispute over any entitlement to the privately contracted services, the district may have permitted implementation of those services in the public school during the period at issue, but as further described below, evidence of that fact remains unclear. On appeal, the parent contends the IHO erred by applying a Burlington/Carter framework and instead seeks payment for privately contracted SEIS under a compensatory education theory. The right to receive retrospective funding for unilaterally obtained special education instruction, one of the major hallmarks of the Burlington/Carter framework, turns on whether the privately secured programming was appropriate to meet the student's special education needs, whereas compensatory education is usually an equitable, fact-specific remedy aimed at remediation rather than windfalls and is generally fashioned as prospective relief to place the student where he or she would have been but for the district's lapse. Under either framework,[11] the claim fails on this record: there is no reliable evidence regarding relief that establishes the nature, intensity, or methodology of the privately delivered SEIS, nothing reliably links the services contracted for during the 2023-24 school year to student's identified needs, and there is no reliable evidence showing that the student made progress with the relief now requested that might have been a relevant factor to consider regarding the parent's claim. [12]
1. Student's Needs
Although not in dispute, a brief discussion of the student's needs provides context for the issue to be resolved, namely, whether the SEIS delivered by Children's Resources were specially designed to address the student's unique needs during the 2023-24 school year.
According to evaluative information reflected in the July 2020 IEP, the student, then a two-year-seven-month-old boy, obtained a full-scale intelligence quotient (FSIQ) in the low average range, a verbal IQ in the low average range, and a non-verbal IQ in the average range on a standardized test of intelligence (Parent Ex. B at p. 1). According to the IEP, the student presented with mild delays in receptive and expressive language (id.).[13] In relation to OT, evaluative information included in the IEP noted the student's grasping and visual motor skills indicated no delay in fine motor skills; however, the student's self-help skills were in the poor range (id.). In the area of gross motor, the student received scores that fell in the poor range that indicated delays in gross motor development (id.).
The July 2020 IEP indicated that the student was able to follow one step directions, respond to his name and establish eye contact, and identify body parts, and that he "thriv[ed] with rote knowledge such as colors, shapes, numbers and letters" (Parent Ex. B at p. 2). In contrast, the IEP noted the student had difficulty following multi-step directions and listening to stories for a few minutes, that he demonstrated a variable attention span, and communicated using mainly single words, word approximations, gestures and some two words phrases (id.). The IEP further noted the student possessed a limited vocabulary, had difficulty relating his experiences and was "frustrate[d] excessively due to his language difficulties" (id.). The July 2020 IEP reflected that socially, the student displayed interest in the activities of peers; however, did not initiate or maintain appropriately, did not label his emotions, and sometimes tuned out (id.). The IEP reported the student received a diagnosis of ASD in March 2019 (id.). The IEP stated the student had improved eye contact, followed classroom routines, although he had difficulty sitting still and focusing during group activities (id.) According to the IEP, the student exhibited various atypical behaviors that included spinning circular objects, running in circles and engaging in repetitive play (id.). In relation to physical development, the IEP indicated the student could run, but not smoothly, climb on play equipment, and jump and navigate stairs with assistance (id. at p. 3). However, the student displayed an unsteady gait and often tripped (id.). The student exhibited a weak grasp and did not draw recognizable forms or replicate block designs (id. at p. 3).
Relative to the 2023-24 school year, the most recent description of the student's needs in the evidence that preceded the 2023-24 year in dispute is found in the May 2022 IESP and May 21, 2023 Children's Resources progress report (Parent Ex. F; Dist. Ex. 2).
According to the May 2022 IESP,[14] the student, who was then almost five years old and was attending a universal prekindergarten program, received speech-language therapy two times per week, and SEIT services five times per week for 60-minute sessions, both provided individually (Dist. Ex. 2 at p. 1). In the area of academics, per SEIT provider report, the student pointed to, labeled, and matched colors and shapes, demonstrated progress answering "Wh" questions or questions related to quantitative concepts, "c[ould] take turns, share, and play cooperatively," and "enjoy[ed] pretend play, especially in the blocks area where he play[ed] with his peers" (id.). Further, the IESP included, per SEIT provider report, that the student demonstrated progress during clean up time, and with "some moderate prompts" was able to put away toys when instructed to do so (id.). The IESP noted the parent disagreed with the speech-language provider's plan to terminate services as she felt the student continued to need speech-language services due to poor articulation and drooling (id.). In relation to academics, the parent reported the student was "very bright" as he knew numbers, letters, colors, and shapes and could write his name, although she stated the student had difficulty sitting down and focusing, and only focused for 30 seconds to a minute while working with her (id. at p. 2). As related to social development, the IESP reported the student had a friendly demeanor and enjoyed interacting with peers; however, he was easily distracted in the classroom and had a hard time following directions (id.). The IESP reported the student required frequent redirection to stay focused and complete work in a timely manner (id.).
As to OT, the May 2022 IESP recommended continued services for the 2022-23 school year to support the student's learning to use a functional tripod grasp when writing, and coloring with fair legibility (Dist. Ex. 2 at p. 3). In addition, the IESP reported areas addressed would include improved graphomotor and visual motor skills (id.). The IESP reflected the parent's concerns that the student's fingers and arm hurt when writing, that he was unable to hold scissors correctly and lacked the fine motor strength to hold eating utensils, and that he was unable to don or doff his clothing (id.). The IESP reported no concerns with behavioral issues beyond distractibility and noted the parent wanted the student to continue OT services to strengthen fine motor skills (id.). The May 2022 IESP recommended two 30-minute sessions per week of individual OT (id. at p. 6).
A May 2023 progress report provided additional information regarding the student's educational needs (Parent Ex. F). According to the progress report the student could identify capital and lowercase letters and communicate via simple sentences (id. at p. 1). In reading, the progress report indicated the student could read approximately 100 sight words with assistance but could not answer "Wh" questions or pay attention to a full story (id. at p. 2).[15] In math, the student could identify numbers 1-100, count 1-130, compare two- and three-dimensional shapes, write numbers when instructed by the teacher, and compose and decompose numbers (id. at p. 1). However, the student required prompting and hand-over-hand assistance to count a set of objects using one-to-one correspondence (id.). The progress report indicated the student was learning how to add and subtract using pictures of objects and cubes (id.). Turning to writing, the progress report noted the student's writing skills had improved but he continued to require encouragement and positive reinforcement to complete his work (id. at p. 2). The report also noted the student could write short sentences and, with assistance, tell about the events in a story (id.).
In terms of language, the May 2023 progress report stated the student needed directions repeated more than two times to understand them and required prompting and redirection to follow classroom teacher commands (Parent Ex. F at p. 3). With regard to social/emotional functioning, the progress report indicated the student had shown improvement in his ability to express his feelings and emotions using words but noted the student had difficulty relating to other students and often needed encouragement to approach his peers (id.). Lastly, the progress report stated that the student required verbal prompts, encouragement, positive reinforcement, and boosts to his self-esteem (id. at p. 4). It was reported that once the student was praised for a good answer or good behavior, he was able to achieve and master all classroom work (id.).
2. SEIS from Children's Resources
The May 2023 progress report identified the student's provider by name, although it was unsigned (Parent Ex. F at pp. 1, 4). According to the progress report, the student attended kindergarten at a public school and received "[five] hours of pendency services" (id. at p. 1). The progress report described the student as a "smart and charming kindergartener that require[d] redirection, positive reinforcement, and verbal prompts to complete tasks" and therefore recommended continuation of current services (id. at p. 4). The May 2023 progress report was placed on letterhead for "THE CHILDRENS CIRCLE" and the address provided indicates that it was a fair distance from the student's public school and neighborhood, whereas the contract and agency materials in the record identify "The Children’s Resources" as the service provider for the 2023–2024 school year. The evidence in the hearing record contains no explanation reconciling the differing entities and, as noted above, May 2023 progress report predates and concerns a different school year than the September 1, 2023 contract covering the 2023–2024 school year.
For the 2023-24 school year, the parent did not submit any documentation from those who may have worked with the student that was related to the special education services provided to the student by Children's Resources, in support of her request for direct funding of the privately obtained services (see generally Parent Exs. A-F; Dist. Exs. 1-2). Here, in addition to the contract of services with Children's Resources for the 2023-24 school year, the hearing record includes affidavit testimony from the executive director of Children's Resources identifying the individual providing the special education "SEIT" services to the student, setting forth the provider's credentials, and asserting that five periods of services per week were provided to the student by the agency starting on September 15, 2023 and that it "intend[ed] to continue providing [five] periods of the services to the [s]tudent for the remainder of the 2023-24 school year" (Parent Exs. D; E ¶¶ 1-5).
However, during her testimony at the hearing, the executive director could not even identify whether the student attended a private or a public school, testifying, "I think it's public school, but I'm really not sure" (Tr. p. 44). Similarly, while the executive director testified by affidavit that the most recent IEP for the student was dated July 17, 2020, she admitted at the hearing that she did not know if the student had a more recent IEP (Tr. pp. 44-45, 49; Parent Ex. E). The executive director testified that the determination of the most recent IEP is part of the intake process, and she did not participate in that process (Tr. pp. 52-53). The executive director also conceded on cross-examination that the preschool IEP would not be appropriate for the student (Tr. p. 46). The executive director explained that in some instances parents feel their child continues to need services such as provided on a preschool IEP; however, specific to this case, the executive director only spoke with the parent briefly related to her concerns (id.). As to whether Children's Resources would provide a student with services the CSE had not recommended, the executive director reported that the decision to provide services would be considered on a case-by-case basis taking into account the opinion of the parents, teachers and CSE (Tr. pp. 53-54). The executive director's testimony does not reliably show that individualized special education instruction that addressed the student's needs were delivered to the student during the 2023-24 school year.
Apart from the conflicting and limited testimony provided by the executive director, the hearing record is devoid of any information as to the nature and extent of the services purportedly provided to the student in the 2023-24 school year (see Parent Ex. E ¶ 5). As such, I find no reason to disturb the IHO's finding that the parent failed show the appropriateness of the unilaterally-obtained SEIS delivered by Children's Resources under either a Burlington/Carter framework which appears to be the most applicable under the circumstances of this case or under the fact intensive inquiry under a compensatory education framework (see IHO Decision at p. 10).
While I do not reach the issue of equitable considerations, the parties devote substantial attention to whether the district should be required to fund the parent's privately obtained services and, if so, at what rate. The IHO addressed many of these points in alternative findings on equitable factors. Largely absent from the record, however, is any showing that the parties addressed the practical implications of the relief being sought under the circumstances of this case. The requested arrangement appears to contemplate that a privately retained provider, selected and directed by the parent rather than the district, entered the public school building on a recurring basis to provide educational services during the school day. Yet the parties have offered little evidence regarding how such an arrangement functioned in practice, including issues relating to building access, student supervision, the availability of instructional space, coordination with the student's educational program and classroom schedule, the authority of school personnel to regulate activities occurring within the school environment, the management of interactions between the student's private teacher and other students, compliance with school safety and emergency procedures, or the broader administrative consequences of recognizing a right to place privately retained service providers within public school facilities. If the district's building administrators coordinated with the parent or the teacher and permitted this practice with this student, no one from the district gave any thought whatsoever to explaining why or how during the impartial hearing. Or perhaps the parent, who did not appear at the hearing at all, could have explained why or how the arrangements were made. The record is silent, except for a brief dispute over the admissibility of the IESP that the parent's attorney tried to exclude from evidence by claiming that no CSE meeting occurred, a point which the IHO soundly rejected. The resulting gaps in proof are so pronounced that they suggest not mere oversight, but a deliberate narrowing of the presentation by both parties away from the practical realities of execution. While such concerns may not be dispositive in every case, they are not insignificant, yet the parties in this case largely proceed as though the only questions to be answered were whether the private services aligned with a preschool IEP (from a time when the student had not even received preschool services) and what amount should be paid for them. In short, special education does not occur in a vacuum, and the parties are reminded that their obligations are ultimately student-centered and must account for real-world implementation within an actual school environment, rather than devolving into blinkered, overly narrow disputes about which party failed to meet its burden or what rate should be paid, at the expense of developing a meaningful record from both sides on how the requested relief actually functioned for the student during the school year in question.
VII. Conclusion
On the merits of the parties' dispute, for the reasons described above I find no basis to disturb the IHO's order denying the parent's request that the district fund the privately-obtained SEIS from Children's Resources for the 2023-24 school year. The district's challenge regarding the pendency determination of the IHO has merit and it is clear that evidence does not lead to the conclusion that parent may recover the costs of the privately selected services from Children's Resources on a pendency basis. To that extent I will vacate the IHO's pendency determinations.
I have considered the parties' remaining contentions and find the necessary inquiry to be at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision dated April 11, 2025 is modified by vacating that portion which found that the student was entitled to the services as listed in the May 2022 IESP only, and
IT IS FURTHER ORDERED that the parent is not entitled to recover the costs of the privately contracted services from Children's Resources as the student's pendency placement.
Footnotes
[1] The parties sometimes used SEITS or SEIT as the acronym in this proceeding. I have tended to use SEIS in this decision. 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 at https://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.
[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] An IESP, as opposed to an IEP, was apparently prepared because the parent informed the CSE that she had applied for the student to attend a nonpublic school for the 2023-24 school year (Dist. Ex. 2 at pp. 1-2, 8). The hearing record, however, is devoid of any evidence that the student attended a nonpublic school in the 2023-24 school year. In fact, the due process complaint notice references that the student was attending a public school at the time of its September 10, 2023 filing (Parent Ex. A at p. 1).
[4] The IHO noted that while the parent's due process complaint notice sought a bank of hours for speech-language therapy, PT, and OT, her final request for compensatory education was limited to OT (IHO Decision at p. 13 n.80; Tr. p. 72).
[5] In fact, the progress report was dated May 21, 2023–prior to the start of the 2023-24 school year (see Parent Ex. F).
[6] The district takes issue with the ambiguous characterization of the services obtained by the parent as described in the request for review.
[7] 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).
[8] In Ventura de Paulino v. New York City Department of Education, 959 F.3d 519 (2d Cir. 2020), 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).
[9] Here, under her view that the July 2020 IEP, which included SEIS, was the operative IEP for pendency, the parent unilaterally obtained SEIS from Children's Resources.
[10] The district similarly argues in its cross-appeal that the parent rejected pendency because the parent only contracted for the provision of SEIS and not any of the other services recommended in the July 2020 IEP. In light of the foregoing determination, I need not address that argument.
[11] Under Burlington/Carter, reimbursement/direct funding may be awarded if the unilateral placement is "proper under the Act," meaning it is reasonably calculated to enable the child to receive educational benefits and provides instruction specially designed to meet the child's unique needs (Carter, 510 U.S. at 11–15; Burlington, 471 U.S. at 370; Rowley, 458 U.S. at 203–04; Gagliardo, 489 F.3d at 112–15; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364-65 [2d Cir. 2006]; Walczak, 142 F.3d at 129; 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]). Parents bear the burden to prove appropriateness of the private services based on the totality of the circumstances, and while progress may be relevant it is not dispositive; the placement need not be state-approved, employ certified special education teachers, or provide every service to maximize potential (Carter, 510 U.S. at 13–14; Gagliardo, 489 F.3d at 112 [quoting Frank G., 459 F.3d at 364–65]; M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]). Compensatory education is an equitable, fact-specific remedy intended to "make up for" a denial of FAPE and to place the student in the position he or she would have occupied absent the district's violation (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [award must be "reasonably calculated" to provide benefits that likely would have accrued]; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [same]; Bd. of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [flexible approach]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]]. In the Second Circuit, compensatory education is generally a prospective remedy and may be available even after a student ages out or graduates only upon a "gross" IDEA violation causing denial of, or exclusion from, services for a substantial period [Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 [2d Cir. 2015]; French v. N.Y. State Dep't of Educ., 476 F. App'x 468, 471 [2d Cir. 2011]; Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75–76 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071, 1078–79 [2d Cir. 1988], aff'd on reconsideration sub nom. Burr v. Sobol, 888 F.2d 258 [2d Cir. 1989]; B.D. v. Eldred Cent. Sch. Dist., 661 F. Supp. 3d 299, 320 n.24 [S.D.N.Y. 2023]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).
[12] The May 21, 2023 progress report (progress report) reflects that SEIS were implemented in the public school classroom during a different year, the 2022-23 school year (see Parent Ex. F at pp. 1, 3).
[13] As detailed in the IEP, the evaluator who completed language testing of the student referenced their experience working with bilingual children and reported that based on their assessment of the student he presented with a 25 percent delay in receptive and expressive language skills (Parent Ex. B at p. 1). The IEP does not directly reference the student as bilingual or receiving a bilingual evaluation (see generally Exhibit B).
[14] An IESP was developed since the student was about to become transition out of preschool services and into school-age programming, but it is not clear why the CSE developed an IESP for a dually-enrolled nonpublic school student instead of an IEP. However, that school year is not the subject of this proceeding.
[15] The progress report stated both that the student could and could not name the author and illustrator of a text and define the role of each (Parent Ex. F at p. 2).