STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-309
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances: Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by 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 from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by AIM Educational Support Services (AIM) for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which found that AIM provided the student with appropriate services during the 2023-24 school year. The appeal must be dismissed. The cross-appeal must also be dismissed.
II. Overview—Administrative Procedures
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 programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). 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 student's educational history, the procedural history of the case, and the IHO's decision will not be recited in detail.
Briefly, the student received special education services as a preschool student with a disability during the 2019-20 school year and for the 2020-21 school year was found eligible for school aged special education services as a student with a speech or language impairment; the student was parentally placed at a nonpublic school at that time and for subsequent school years relevant to this proceeding (see Parent Exs. D at pp. 1, 14; E at p. 12; F at p. 12)
On January 19, 2023, a CSE convened for a meeting; determined that the student remained eligible for special education services as a student with a speech or language impairment; and developed an IESP with an implementation date of January 31, 2023 (Parent Ex. E at p. 1).[1] The January 2023 CSE recommended a 10-month program consisting of five periods per week of individual special education teacher support services (SETSS) and three 30-minute sessions per week of individual speech-language therapy (see id. at p. 10).[2]
In a letter dated May 30, 2023, the parent, through her attorney, asked the district to "provide [the] [student] with [] special education and related services . . . for the 2023-24 school year" (Parent Ex. H at p. 1).
In a letter to the district dated June 25, 2023, the parent, through her attorney, expressed "concern regarding [the student]'s recommended placement and program for the 2023-24 school year" (Parent Ex. G at p. 1). Specifically, the parent expressed concern that the CSE did not recommend 12-month services which, according to the parent, the student "require[d] in order to avoid regression" (id.).[3] The June 2023 letter indicated that the parent intended to implement "the prior recommended services" and seek funding from the district (id.).
On July 18, 2023, the parent signed a contract with AIM, a private educational agency, for the provision of educational services to the student during the 2023-24 school year (Parent Ex. K at pp. 1-2, 4-5). According to the July 2023 contract the parent requested that AIM provide, "to whatever extent possible," and AIM indicated it would "make every effort to implement" the following services to the student for the 12-month, 2023-24 school year: five one-hour sessions per week of group special education itinerant teacher (SEIT) services; two 30-minute sessions per week of individual speech-language therapy; and one 30-minute session per week of speech-language therapy delivered in a group setting (id. at pp. 1, 4-5).[4] However, the July 2023 contract also stated that AIM intended to provide five periods of SETSS or SEIT services at a rate of $218.00 per hour (id. at p. 2).
On October 19, 2023, the parent entered into another contract with AIM (Parent Ex. L at pp. 1, 3). The October 2023 contract contained the same terms as the July 2023 contract, except the October 2023 contract also stated that AIM intended to provide speech-language therapy at a rate of $250.00 per hour in addition to SETSS/SEIT services (compare Parent Ex. K, with Parent Ex. L).
On April 10, 2024, the parent entered into a contract with AIM for the 12-month, 2024-25 school year (Parent Ex. M at pp. 1, 3). The April 2024 contract stated that AIM intended to provide SETSS/SEIT services at a rate of $218.00 per hour and speech-language therapy at a rate of $250.00 per hour (id. at p. 2).[5]
On May 27, 2024, the parent submitted a form to the district, on which she requested continuation of special education services for the upcoming school year (Parent Ex. J at pp. 1-2).
In a letter to the district dated July 4, 2024, the parent, through her attorney, expressed "concern regarding [the student]'s recommended placement and program for the 2024-25 school year" (Parent Ex. I at p. 1). Specifically, the parent expressed concern that the January 2023 CSE did not recommend summer services which, according to the parent, the student "require[d] in order to avoid regression" (id.).[6] The July 2024 letter indicated that the parent intended to implement "the prior recommended services" and seek funding from the district(id.).
In a document titled "Regression Statement," dated June 18, 2024, the student's SETSS provider indicated specific skills the student lost over breaks and further indicated that a 12-month program "would allow for a smoother transition into the new school year and help with retaining his skills" (Parent Ex. R).[7]
On August 1, 2024, a CSE convened for a meeting; determined that the student remained eligible for special education services as a student with a speech or language impairment; and developed an IESP for the student with a projected implementation date of September 5, 2024 (Parent Ex. F at p. 1). The August 2024 CSE recommended a 10-month program consisting of six periods per week of individual SETSS; two 30-minute sessions per week of individual speech-language therapy; one 30-minute session per week of group speech-language therapy; and one 30-minute session per week of group counseling (see id. at pp. 9-10).[8]
On October 8, 2024, the parent signed an amendment to her April 2024 contract with AIM (Parent Ex. N).[9] The October 2024 contract amendment stated that AIM was providing six periods per week of SETSS but was not providing speech-language therapy (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated December 9, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (Parent Ex. A at pp. 3-4). With regard to both school years, the parent alleged that the district should have recommended summer services and failed to implement the services to which the student was entitled (id.). The parent also invoked pendency, asserting that the student's placement during the pendency of this proceeding was based on a pendency agreement dated December 8, 2020 consisting of SEIT and speech-language therapy services for the 12-month, 2023-24 school year and summer 2024 and based on the August 2024 IESP for the 2024-25 school year (id.). According to the parent, the student's pendency program for the 10-month, 2024-25 school year consisted of six periods per week of SETSS, delivered in Yiddish and in a group setting; two 30-minute sessions per week of individual speech-language therapy, delivered in Yiddish; one 30-minute session per week of speech-language therapy, delivered in Yiddish and in a group setting; and one 30-minute session per week of group counseling, delivered in Yiddish (id. at p. 3). As relief, the parent requested an order directing the district to fund the program reflected in the December 2020 pendency agreement, at the providers' contracted rates, for the 12-month, 2023-24 school year and summer 2024; fund the program reflected in the August 2024 IESP, at the providers' contracted rates, for the 10-month, 2024-25 school year; and fund banks of compensatory services reflecting any compensatory services that the student was entitled to receive but did not receive during the 2023-24 and 2024-25 school years, including services that the student was entitled to receive under pendency (see id. at p. 5).
B. Impartial Hearing and Impartial Hearing Officer Decision
An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter (see Tr. pp. 1, 3). Following a prehearing conference on January 21, 2025, an impartial hearing convened on February 24, 2025 and concluded on the same day (see Tr. pp. 1-32). During the proceedings, district's counsel moved to dismiss the parent's claims for lack of subject matter jurisdiction parent's counsel expressed opposition, and the IHO denied the district's oral motion (Tr. pp. 14-16). The parent offered various exhibits, all but one of which the IHO admitted into evidence, while the district offered no evidence (see Tr. pp. 16-18, 20-21; Parent Exs. A-U).[10] The parent's exhibits included testimony by affidavit from a quality assurance supervisor and a financial administrator with AIM (Tr. pp. 16-17; Parent Exs. U). The district's counsel was not permitted to cross-examine the affiants, having waived the right to do so by failing to request cross-examination in accordance with the IHO's prehearing conference summary and order (see Tr. pp. 20-22; IHO Ex. I at p. 3).
In a decision dated April 17, 2025, the IHO first explained his denial of the district's motion to dismiss; determined that the student was entitled to special education services for both school years, as the district presented no defense in that regard; rejected the district's argument that the student was not entitled to pendency; and determined that the 2024 IESP was the basis of the student's pendency program (IHO Decision at pp. 4-7). The body of the IHO's decision states that the "[d]istrict shall provide" the following services, "in accordance with the 2024 IESP," "during the pendency of this matter:" six periods of SETSS per week, delivered in Yiddish and in a group setting; two 30-minute sessions per week of individual speech-language therapy, delivered in Yiddish; one 30-minute session per week of speech-language therapy, delivered in Yiddish and in a group setting; and one 30-minute session per week of group counseling, delivered in Yiddish (id. at p. 6).
Next, with regard to the 2023-24 school year, the IHO found that the district failed to implement the services to which the student was entitled, explaining that the district effectively conceded such failure by presenting no evidence at the impartial hearing (IHO Decision at p. 9). Additionally, the IHO found that the regression statement presented by the parent provided sufficient evidence of substantial regression to support the student's need for 12-month services during the 2023-24 school year (id. at pp. 9, 12). Thus, according to the IHO, the student should have received the recommended services on a 12-month basis (see id. at p. 9).
Having found that the district failed to offer the student a FAPE on an equitable basis for the 12-month, 2023-24 school year, the IHO addressed whether the unilaterally obtained services were appropriate for the student (IHO Decision at pp. 9-12). The IHO found that the parent established the appropriateness of unilateral services provided by AIM, reasoning as follows: the student's SETSS and speech-language therapy providers were appropriately credentialed; the hearing record included progress reports describing the student's then-current levels of performance, reflecting the goals established for the 12-month, 2023-24 school year, and reflecting the interventions used to help the student meet his goals; and the progress reports "indicated [that the] [s]tudent made progress during the 2023-24 school year" (id. at 10-12).[11]
Turning to equitable considerations for the 2023-24 school year, the IHO made the following findings: the district presented no evidence and made no claim that the parent interfered in any way with the district's obligation to provide a FAPE on an equitable basis; the parent was obligated to pay for the services provided under her contract with AIM; the district presented no evidence of reasonable market rates for SETSS and speech-language therapy; and, absent evidence to the contrary, the contracted rates were reasonable (IHO Decision at p. 13). Thus, according to the IHO, the district must fund the cost of the services provided by AIM during the 12-month, 2023-24 school year at the contracted rates (id. at p. 14).
As for the 2024-25 school year, the IHO found that the district denied the student a FAPE on an equitable basis, having presented no evidence to dispute its alleged failure to implement the 2024 IESP (IHO Decision at p. 14). The IHO also found that the parent failed to meet her burden of proof (see id. at pp. 9, 14-15). The IHO reasoned that, while the hearing record included a SETSS treatment plan proposing how to address the student's delays, the record lacked evidence that the SETSS provider actually utilized any of those techniques and methodologies during the 2024-25 school year (id. at p. 14).[12] Although a supervisor from AIM "testified that the SETSS [t]reatment [p]lan [wa]s an accurate representation of what [the direct] [p]rovider … will be working on with [the s]tudent during the" 12-month, 2024-25 school year, such statement "was made on February 3, 2025 … more than halfway" through the school year, and was still entirely prospective, "suggest[ing] that the … [t]reatment [p]lan had not been implemented . . . as of February 3, 2025" (id. at p. 15). Finding the record evidence insufficient to prove that the student received appropriate services during the 2024-25 school year, and declining to address equitable considerations, the IHO denied the "[p]arent's request for direct funding of SETSS" for the 12-month, 2024-25 school year (see id. at pp. 9, 14-16).
As relief, the IHO ordered the district to "reimburse and/or directly fund the" cost of the student's SETSS and speech-language therapy for the 12-month, 2023-24 school year, "at rates not to exceed $218.00 per hour for" SETSS and $250.00 per hour for speech-language therapy, "upon submission of invoices for services rendered and a valid contract between the [p]arent and . . . provider;" and, "if it has not already done so," implement the speech-language therapy and the counseling services "recommended in the 2024 IESP" for the 2024-25 school year (IHO Decision at pp. 15-16).
IV. Appeal for State-Level Review
The parent submits an appeal, and the district submits a cross-appeal. The parties' familiarity with the issues raised in the parties' respective pleadings is presumed and, therefore, the particular allegations and arguments will not be recited here in detail.
According to the parent, the IHO erred in finding that she failed to establish the appropriateness of services provided to the student by AIM during the 2024-25 school year; in disregarding her assertion that a December 2020 pendency agreement, not the 2024 IESP, was the basis of the student's pendency program for the 12-month, 2023-24 school year and summer 2024; and in failing to include an award of pendency services in the April 2025 IHO decision. The parent further contends that, if an SRO finds the student's program of services for the 2024-25 school year to be inappropriate, the parent is entitled to compensatory services as an alternative form of relief.
According to the district, the IHO correctly determined that the parent failed to establish that AIM provided appropriate services to the student during the 2024-25 school year but erred in finding that the services provided during the 2023-24 school year were appropriate. The district further contends that the student was not entitled to pendency services for either school year; that, even if the student was entitled to pendency services, the pendency program would not differ by school year; and that the parent is not entitled to alternative relief after failing to prove that the unilaterally obtained services were appropriate.
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]).[13]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
Initially, I note that neither party has appealed from the IHO's finding that the district denied the student a FAPE on an equitable basis for both the 2023-24 school year and the 2024-25 school year; the IHO's finding that the student was entitled to 12-month services for the 2023-24 school year; or any of the IHO's findings regarding equitable considerations for the 2023-24 school year. Accordingly, those findings, as well as the IHO's denial of the district's motion to dismiss, 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]).
A.Unilaterally Obtained Services
In this matter, the parent placed the student in a general education classroom at a nonpublic school; supplemented that placement with private services from AIM, without the consent of school district officials; and then commenced a due process proceeding to obtain remuneration for the costs of such unilaterally obtained services. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the cost of the private services obtained from AIM.
"Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. Parents can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Carter, 510 U.S. at 14 [finding that the "[p]arents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]). The parent's request for district funding of services provided to the student by AIM must be assessed under that framework.
Under the Burlington/Carter framework, a school district may be required to reimburse parents for the cost of private educational services they obtained for a student if the services offered by the district were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).[14] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 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 federal standard for adjudicating these types of disputes is instructive. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
A review of the information available in the hearing record concerning the student's needs and then-current functioning will provide the context needed to assess whether the unilaterally obtained services were appropriate for the student.
The hearing record includes the August 2024 IESP, developed as the student was about to enter fourth grade at a nonpublic school (see Parent Ex. F at pp. 1, 12). The information reported in the present levels of performance section of the August 2024 IESP was derived from the following sources: an undated psychoeducational evaluation, conducted as a part of the student's mandated three-year review; a December 2023 SETSS progress report; and input from the parent, provided during the CSE meeting (see id. at pp. 1-5, 13).[15]
The August 2024 IESP reported the following information regarding the aforementioned psychoeducational evaluation.
The evaluation included administration of the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V), which yielded an overall full scale intelligence quotient (FSIQ) within the extremely low range as compared to other children of the student's age (see Parent Ex. F at p. 1). The student's performance on the verbal comprehension index (VCI) was much lower than that of most children his age and reflected an area of personal weakness as compared to his overall ability (id.). His scores on verbal comprehension tasks were weaker than his performance on tasks that required him to use logic to solve problems, as well as those requiring him to work quickly and efficiently (id.). With regard to individual subtests within the VCI, the student performed better on the vocabulary (VC) subtest than on the similarities (SI) subtest, suggesting that his word knowledge skills were better developed than his abstract reasoning skills (id.). Nevertheless, the student's scores on both the vocabulary subtest and the similarities subtest fell within the extremely low range (id.).
Additionally, the student's performance on the fluid reasoning index (FRI) was "very weak" for his age and fell in the very low range (Parent Ex. F at p. 1). Although the student's FRI was very low compared to same-age peers, his performance on fluid reasoning tasks was particularly strong as compared to his performance on tasks that involved language-based skills (id. at pp. 1-2). The student's relatively weak performance on the FRI suggested that he may have experienced some difficulty solving complex problems requiring him to identify and apply rules (id. at p. 2). With regard to individual subtests within the FRI, the student performed better on the matrix reasoning (MR) subtest, in which his score fell within the low average range, than on the figure weights (FW) subtest, in which his score fell within the very low range, suggesting that his perceptual organization skills were better developed than his quantitative reasoning skills (id.).
Although "slightly low for his age," the student's score on the processing speed index (PSI), which fell within the low average range, was higher than his FSIQ, thus reflecting an area of personal strength (Parent Ex. F at p. 2). The student's speed and accuracy when processing visual information were strengths as compared to his performance on tasks that involved language-based reasoning (id.). According to the reporting, this pattern of performance suggested that processing speed was not limiting the student's performance on tasks involving reasoning and that his ability to quickly evaluate visual information and make simple decisions was a strength relative to his complex problem-solving ability (id.). With regard to individual subtests within the PSI, the student demonstrated uneven performance on the coding (CD) and symbol search (SS) subtests (id.). The student's score on the SS subtest fell within the average range, reflecting one of his strongest areas of performance, but it was reported that he showed greater difficulty on the coding subtest, thus suggesting that accurate visual scanning was a strength relative to associative memory and/or graphomotor speed (id.).
As for other tests contributing to the student's FSIQ, the student scored in the average range on the block design test, a visual-spatial test, suggesting age-appropriate visual spatial skills, but the student scored in the extremely low range, below most other children his age, on the digit score test, a working memory test (id.).
The aforementioned psychoeducational evaluation also included administration of the Wechsler Individual Achievement Test-Fourth Edition (WIAT-IV) "to test academic achievements in three domains: reading, writing, and mathematics" (Parent Ex. F at p. 2). The student's reading, reading comprehension, and spelling skills tested in the very low range (id.). Across all three domains, the student's skills were below grade level and in need of further development (id.).
During his evaluation, the student was cooperative with a quiet, anxious demeanor (Parent Ex. F. at p. 4). At first, he did not want to separate from his mother and started crying, but he sat for the evaluation after several attempts by his mother to persuade him (id.). Throughout the evaluation, the student paid close attention to the instructions, understood them, and responded promptly (id.). He remained engaged and did his best, communicating more through body posture and facial expressions (id.). The student spoke in a "low, whispery voice" and remained quiet when he did not know the answer (id.). He appeared overwhelmed and frustrated, especially during verbal tests, appearing more relaxed during non-verbal tasks (id.).
The August 2024 IESP also included the following information regarding the student's academic and social functioning, derived from a December 2023 SETSS progress report (see Parent Ex. F at pp. 2-3).[16]
In reading, the student presented with delays in decoding, fluency, and comprehension (Parent Ex. F at p. 3). He struggled to decode basic CVC words and decoded them at a "very slow speed" (id.). The student could identify vowel letters; but struggled with vowel sounds, blending letters, decoding longer words, CVC words, and sight words (id.). The student presented with "severely delayed phonemic awareness" and could not substitute the first sound in a CVC word (id.). The student also struggled with understanding the information he read and in answering "WH" questions (id.). Due to his severely delayed phonemic awareness, the student's spelling and writing could not be understood (id.).
In math, the student could count from 1-100 and perform basic, single digit addition and subtraction, however, due to delays in reading and processing information, computing word problems was "almost impossible" for the student (Parent Ex. F at p. 3). Further, he required step-by-step guidance, as he could not understand the mode of computation or how to decipher the problem (id.).
Deficits in receptive and expressive language skills, including lower than average vocabulary, affected the student academically and socially (Parent Ex. F. at p. 3). While the student "made much progress" in remembering and comprehending language on a basic level, he still struggled with higher order thinking skills and deeper comprehension (id.). The student sometimes acted in an immature manner, seemingly to hide his deficits from the adults around him (id.)
The student also displayed "social anxiety" which inhibited his socialization and integration with peers in the classroom (Parent Ex. F at p. 4). When asked questions in the presence of others, the student would freeze and remain quiet (id.). The student wanted to "interact and play with his friends," but his fears stopped him from initiating such interactions, and he needed help from an adult in that regard (id.).
As reported in the August 2024 IESP, the parent expressed the following concerns: the student struggled to keep up with class material as compared to his peers; reading was difficult for him; and, feeling overwhelmed, he tended to avoid his schoolwork, rarely completing assignments (Parent Ex. F at p. 4). The parent reported that the student was active, physically healthy, doing well socially, and played sports with confidence; but the parent also shared that the student had missed a lot of school in the past two years (id. at pp. 4-5).[17]
The August 2024 IESP identified the following management needs: positive reinforcement; graphic organizers; scaffolded lessons; differentiated instruction; modeling; phonics review; tabletop activities; making connections/activating prior knowledge; use of manipulatives; multisensory activities; vocabulary building activities; and presenting visuals to introduce new concepts (Parent Ex. F at p. 5). Due to concerns with the student's frustration and feelings of overwhelm, counseling was discussed and agreed to by the parent (id.).
2. SETSS and Speech-Language Therapy Delivered by AIM for the 2023-24 School Year
On appeal, the district contends that the IHO erred in determining that the parent established the appropriateness of the services provided by AIM during the 2023-24 school year. The district argues as follows: the parent's witnesses lacked personal knowledge regarding the student's services; the SETSS progress report listed goals without explanation of the basis for those goals or how they were appropriate for the student; the hearing record lacks evidence regarding the general education curriculum at the student's nonpublic school or the way in which SETSS from AIM supported the student's classroom functioning; the speech-language therapy progress report contained little detail regarding the student needs and the instruction provided to address those needs; the speech-language therapy progress report listed goals without explanation of how they were developed or how they would be implemented; and the hearing record includes no evidence of the student's functioning at the start of the school year to objectively substantiate progress.[18]
As explained below, the hearing record supports the IHO's determination.
The evidence in the hearing record indicates that, during the 2023-24 school year, AIM provided the student with five hours per week of one-to-one SETSS and three 30-minute sessions of individual speech-language therapy from appropriately credentialed providers (Parent Exs. T ¶¶ 6-8, 10-11, 13; O at pp. 1-6; P at pp. 1, 6; Q at pp. 1-2).[19], [20] The record evidence further indicates that the student's services were delivered "in a pull-out setting" at the student's mainstream school (see Parent Exs. P at p. 1; T ¶ 17). According to testimony from AIM's quality assurance supervisor, the student's providers "create[ed] goals, wr[o]te progress reports, and m[et] with teachers and parents" in addition to delivering direct services (Parent Ex. T ¶ 13). The supervisor further testified that the student's goals were reviewed on a quarterly basis (id. ¶ 14).
Included in the hearing record is a December 2023 progress report, prepared by one of the student's SETSS providers from AIM (Parent Exs. P at pp. 1, 6; T ¶ 10). According to the SETSS progress report, the student required individualized support "to function appropriately . . . in a school setting" due to deficits in the following domains: cognitive functioning; social functioning; receptive and expressive language skills; reading; writing; and math (Parent Ex. P at p. 1). The progress report provided the following information regarding the student's then-current classroom functioning, the provider's efforts to address the student's educational needs, and the goals addressed during the 2023-24 school year (id. at pp. 1-5).
To assess the student's reading skills, a reading specialist administered the "PAST test," the results of which indicated "severely delayed phonemic awareness," below average reading fluency, and poor sight word recognition (Parent Ex. P at p. 2).For example, the student was unable to substitute the first sound in a CVC word (id.).He also struggled with reading comprehension such that understanding main points and answering "WH" questions was difficult for him (id.).The student's SETSS providers used the "LIPS program" to strengthen the student's phonemic awareness, as well as coaching and pre-teaching to help him understand the information he read and follow along with classwork (id.).The student worked toward the following reading goals during the 2023-24 school year: increase phonemic awareness with 75 percent accuracy; answer inferential questions with 75 percent accuracy; increase reading readiness skills in the area of print awareness; increase reading readiness in the area of decoding words to form sentences; increase reading comprehension by using background knowledge to understand setting, character actions, or sequence of events (id. at p. 4).
Due to his severely delayed phonemic awareness, the student's spelling and writing could not be understood (Parent Ex. P at p. 2).The student's writing goals for the 2023-24 school year were improving his ability to write words neatly and accurately and improving his ability to listen to words and write them down (id. at p. 4).In an effort to meet those goals, the student's providers worked with the student to practice his pencil grip and write the ABCs and basic CVC words coherently (id. at p. 2).
As for the student's math skills, he could count from one to 100 and compute single digit addition and subtraction; however, due to his reading difficulties, computing word problems was almost impossible for him" (Parent Ex. P at p. 2).The student's math goals for the 2023-24 school year were as follows: problem solve using mathematical strategies to review solutions for accuracy; solve word problems using addition and subtraction with minimal assistance and with 75 percent accuracy; and use appropriate terminology when subtracting (e.g., minus, equals, difference, subtract) with 80 percent accuracy" (id. at pp. 4-5).The student received step-by-step guidance from his SETSS providers to help him break down and compute word problems (id. at p. 3).He was also learning to identify the different coins and their value using hands on manipulatives (id. at p. 2).
With respect to social, emotional, and behavioral skills, the AIM SETTS progress report noted that the student displayed social anxiety, which inhibited his socialization and integration with peers in the classroom (Parent Ex. P at p. 3).During the 2023-24 school year, the student worked toward the following goals for his social/emotional/behavioral functioning: answer or attempt to answer questions when called on by the teacher and initiate a conversation with a friend (id. at p. 5). To increase the student's confidence and improve his social skills, the student's providers helped him initiate playdates with friends in a 1:1 setting and then remained with him to coach him (id. at p. 3).
Also included in the hearing record is a January 2024 progress report, prepared by the student's speech-language therapy provider (Parent Exs. Q at pp. 1-2; T ¶ 11). According to the speech-language therapy progress report, the student displayed deficits in his receptive and expressive language skills which hindered his academic and social development (Parent Ex. Q at p. 1). For example, the student displayed a lower-than-average vocabulary; difficulty in answering questions on stories or information presented to him; and difficulty with higher order thinking and deeper comprehension (id.). Methods used to address the aforementioned deficits included visualizing/verbalizing curriculum and considering other people's perspectives when responding or acting (id.). During the 2023-24 school year, the student worked toward the following goals to improve his language skills: compare and contrast two everyday items in "8/10 trials" for three consecutive sessions/weeks; correctly identify the meaning and answer inferencing questions when presented with a picture scene in "8/10 trials" for three consecutive sessions/weeks; and answer "WH" question (i.e., who, what, when, where, why, how) when presented with a short story in "8/10 trials" for three consecutive sessions/weeks (id.).[21]
Overall, the evidence in the hearing record, as described above, indicates that the student's SETSS and speech-language therapy providers understood his needs and provided specialized instruction to address those needs.
As stated above, the district argues that both progress reports failed to explain the basis for the goals set by AIM and that the speech-language report lacked detail regarding the student's needs and the instruction provided to address those needs.[22] Notably, the district had the "obligation to evaluate the student and present its view of his needs at the impartial hearing" (Application of a Student with a Disability, Appeal No. 18-049; A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 208, 214 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate, although the private school's assessments and reports were alleged to be incomplete or inaccurate, as the fault for such inaccuracy or incomplete assessment of the student's needs lied with the district]). In any event, for the 2023-24 school year, the parent's hearing presentation described the student's then-current classroom functioning, his educational needs, and the ways in which his providers addressed those needs with sufficient detail (Parent Exs. F at pp. 1-5; P at pp. 1-3; Q at p. 1).
The district also argues that the hearing record lacks evidence of the student's functioning at the start of the 2023-24 school year to objectively substantiate progress; however, contrary to the district's assertion, the parent was not required to present baseline information for measuring the student's progress (see 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4]; R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *13 [S.D.N.Y. Sept. 27, 2013] [stating that nothing in the IDEA or its State counterpart "requires that an IEP contain 'baseline levels of functioning' from which progress can be measured"]; A.D., 690 F. Supp. 2d at 208, 214). In fact, "a finding of progress is not required for a determination" that unilaterally obtained services were appropriate (Application of a Student with a Disability, Appeal No. 25-132; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 82 [2d Cir. Dec. 26, 2012]; Frank G., 459 F.3d at 364; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]).[23]
Therefore, considering the totality of the circumstances, I find that the parent met her burden of proving the appropriateness of the services provided to the student by AIM during the 2023-24 school year (see, e.g., Application of a Student with a Disability, Appeal No. 25-037 [finding that the unilaterally obtained services were appropriate based on progress reports describing the ways in which the student's providers addressed his educational needs]).
3. SETSS Delivered by AIM for the 2024-25 School Year
Next, the parties dispute whether the IHO erred in determining that the parent failed to establish that the student received appropriate services from AIM during the 2024-25 school year. The parent contends that she met her burden of proof, arguing as follows: "a progress report was not yet available" "[a]t the time of the hearing;" that the SETSS treatment plan outlined the "techniques and methodologies expected to be used [with] the [s]tudent;" and the supervisor's testimony "affirmed" the application of the treatment plan during the 2024-25 school (Amended Req. for Rev. at p. 5). The district contends that the IHO's determination was correct, arguing that a mid-year progress report should have been available at the time of the hearing. The district further argues as follows: the SETSS treatment plan was prospective, speculative, and did not describe the instruction the student was actually receiving; the treatment plan listed goals without an explanation of how those goals were developed or how they would be implemented; the parent presented no testimony from the provider or anyone else at AIM regarding the student's individual needs or the methods, strategies, or techniques used to address those needs; the hearing record lacks evidence regarding the general education curriculum at the student's nonpublic school or how the SETSS delivered by AIM supported the student's classroom functioning; the parent presented no explanation for the amendment of her contract with AIM to remove speech-language therapy, which is especially problematic considering the student's identified needs in the areas of expressive and receptive language.
As explained below, the hearing record supports the IHO's determination.
For the 2024-25 school year, the hearing record includes a treatment plan, prepared in July 2024, which identified the student's areas of delay; proposed interventions to address those delays; and recommended goals to improve the student's reading, writing, math, language, and social/emotional skills (Parent Ex. S at p. 1).[24] The treatment plan reflected AIM's intentions for the 2024-25 school year; but the hearing record lacks evidence that the student actually received the interventions proposed therein, as the parent presented no progress reports, session notes, or provider testimony. Accordingly, the treatment plan is, alone, insufficient to establish that AIM actually addressed the student's identified needs.
The parent argues that the following testimony from AIM's quality assurance supervisor proved the treatment plan's implementation: "[t]he treatment plan entered into evidence is an accurate representation of what [the SETSS provider] will be working on with [the student], including goals, for the extended [] 2024-25 school year" (Parent Ex. T ¶ 16 [emphasis added]). Yet, as indicated in the IHO's decision, the foregoing statement was made in February 2025, several months into the 2024-25 school year, but it was still "entirely prospective" (Parent Ex. T at p. 3; IHO Decision at p. 15). In other words, the supervisor's statement reflected intentions for the future even though AIM should have been delivering services from September 2024 through February 2025, at that time (see Parent Exs. T ¶ 16). Given that the school year was months underway, a progress report, or session notes, or testimony from a witness to prove services were actually being provided to the student should have been available for admission during the February 2025 hearing proceedings (see Tr. pp. 10, 12; Parent Ex. T ¶ 18; IHO Decision at p. 15). Thus, considering the lack of documentary support, I find the supervisor's testimony insufficient to prove that AIM implemented its treatment plan during the 2024-25 school year (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995] [holding that a hearing officer's credibility judgments are entitled to deference on appeal "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or . . . the record[,] read in it entirety[,] would compel a contrary conclusion"]; see also P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).
To support her contention that she met her burden of proof, the parent cites Application of a Student with a Disability, Appeal No. 24-010, in which an SRO found the unilaterally obtained services to be appropriate, but that case is not analogous to this one. In Application of a Student with a Disability, Appeal No. 24-010, the record before the IHO included a progress report describing the interventions used with the student, as well as testimony that the progress report reflected "what the provider was addressing with the student" (id.). In that case, the parent also submitted a second progress report, which was not available at the time of the hearing, as additional evidence on appeal (id.). In this matter, the hearing took place in January and February 2025, such that a sufficient portion of the school year had passed so that it would be expected that information as to the student's educational program would have been available at the time of the hearing and in appealing from the IHO's determination that the hearing record was not sufficient as to the delivery of services for the 2024-25 school year, the parent has not submitted any additional evidence to support a departure from the IHO's determination.
In any event, I am not convinced that the unilaterally selected program was "reasonably calculated" to provide the student with educational benefits (Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S at 207). In addition to SETSS, the August 2024 CSE recommended that the student receive speech-language therapy to improve his language skills and counseling to address his frustration and feelings of being overwhelmed (see Parent Ex. F at pp. 1-4, 9-10).[25] Yet, the supervisor's testimony only identified a SETSS provider and made no mention of counseling or speech-language therapy (Parent Ex. T ¶ 12). The hearing record includes no evidence that the parent arranged counseling services; and, while the parent initially contracted with AIM to provide the student with SETSS and speech-language therapy for the 2024-25 school year, she later executed a contract amendment, removing speech-language therapy from the unilaterally selected program without an explanation as to why the service was removed (Parent Exs. M at pp. 1-2; N).[26]
Therefore, considering the totality of the circumstances, I find that the parent failed to meet her burden of proving that AIM provided the student with appropriate educational services during the 2024-25 school year (see, e.g., Application of a Student with a Disability, Appeal No. 25-136 [finding that the parent failed to prove the appropriateness of the unilaterally obtained services where the hearing record included evidence of the student's need for speech-language therapy but lacked "information regarding the delivery" thereof]; see generally Application of a Student with a Disability, Appeal No. 25-018 [explaining that a progress report was, alone, insufficient to support a finding that the unilaterally obtained SETSS were appropriate to meet to the student's needs, given concerns with the report's reliability]).
B.Compensatory Education
I now turn to the parent's request for compensatory education as an alternative form of relief. The parent contends that, if an SRO finds the student's private services for the 2024-25 school year to be inappropriate, then this becomes a case in which the student did not receive any services for that school year, and the parent is entitled to compensatory services accordingly. The district contends that the parent is not entitled to alternative relief after failing to sustain her burden under the Burlington/Carter framework.
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).
While some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period (see D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] [holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"]; P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] [holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school"]), the Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit (compare P.P., 585 F.3d at 739 [finding that "[t]he right to compensatory education arises not from the denial of an appropriate IEP, but from the denial of appropriate education"], with E. Lyme, 790 F.3d at 456-57 [treating compensatory education as an available equitable remedy for a denial of a FAPE so as to effectuate the purposes of the IDEA and put a student in the same position he or she would have been in had the denial of a FAPE not occurred]). Unlike the Third Circuit, the Second Circuit's approach to compensatory education thus far may have left room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington-Carter analysis (see Application of a Student with a Disability, Appeal No. 16-050), or where a student is unilaterally placed but additional related services are required in order for the placement to provide the student with a FAPE (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *5–7 [S.D.N.Y. Aug. 17, 2022] [finding that awards of tuition reimbursement and compensatory education are not mutually exclusive and that an award of "both education placement and additional services may be necessary to provide a particular student with a FAPE"]).[27] Nevertheless, I am not convinced that the Second Circuit, in its approach on this topic thus far, intended to allow an alternative remedy where a parent elects to engage in self-help, choosing a remedy to pursue through due process, but fails to meet his or her burden of proof
In this case, the parent engaged in self-help by unilaterally obtaining private services for the student; failed to meet her burden of proving the appropriateness of those private services; and now seeks compensatory education in the form of district funding of further services by private providers of her choosing. While no court or other authoritative body in this jurisdiction has addressed the topic to date, SROs have consistently indicated that it may not be appropriate, in the administrative due process forum, to continue placing the burden of proof regarding compensatory education relief on the district (see, e.g. Application of a Student with a Disability, Appeal No. 23-096; Application of a Student with a Disability, Appeal No. 23-050). Where, as here, the parent seeks relief in the form of compensatory education to be provided by private special education companies or independent providers of the parent's choosing, I find it is appropriate to place the burden of production and persuasion on the parent with regard to the propriety of the proposed relief. Thus, the re-casting of the remedy alone cannot serve to revive the parent's requested relief. Absent specific evidence regarding difficulties in obtaining recommended services, I find that the hearing record does not support an award of compensatory education (see, e.g., Application of a Student with a Disability, Appeal No. 25-174; Application of a Student with a Disability, Appeal No. 25-007; Application of a Student with a Disability, Appeal No. 24-625). To find otherwise would enable the parent to effectively circumvent her burden of proving the appropriateness of the privately obtained services.
C.Pendency
Finally, the parties dispute whether the IHO erred in determining that pendency lay in the August 2024 IESP and whether the IHO should have awarded funding for pendency services. The parent contends that the IHO erred in disregarding her assertion that the December 2020 pendency agreement, not the 2024 IESP, was the basis of the student's pendency program for the 12-month, 2023-24 school year and summer 2024. Additionally, the parent contends that, although the IHO described the student's pendency program in the body of the decision, the IHO erred in failing to order an award of pendency services. The district contends that the student was not entitled to pendency for either school year, as the parent rejected pendency services from the district by unilaterally contracting with AIM to provide the student with private services. The district further contends that, even if the student was entitled to pendency services, the pendency program would not differ by school year, as both school years were covered by one due process complaint notice and one proceeding.[28] With regard to the 2024-25 school year, specifically, the district notes that the parent seeks funding only for SETSS, a request which the district characterizes as "an a la carte pendency program," as the 2024 IESP included recommendations for SETSS, speech-language therapy, and counseling (Answer & Cr.-App. ¶ 8).
Unless the student's parents and the school district otherwise agree, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino, 959 F.3d at 531; T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[29] The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). Pendency has the effect of an automatic injunction; but 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]).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see E. Lyme, 790 F.3d at 452 [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).[30] A pendency placement encompasses the general type of educational program including the classes, individualized attention, "and additional services a child will receive" (T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]).[31] Pendency is not a divisible, a-la-carte program that may change at any given time, as such a practice would undermine the "status quo" concept so prevalent in stay-put jurisprudence (see Application of a Student with a Disability, Appeal No. 21-014; Application of the Dep't of Educ., Appeal No. 19-039; Application of a Student with a Disability, Appeal No. 18-139; cf. N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 [W.D. Wash. Oct. 27, 2015] [finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement] , aff'd sub nom., 842 F.3d 1093 [9th Cir. 2016]).
An educational agency's obligation to maintain a student's pendency placement is triggered when an administrative due process proceeding is initiated (Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 445, 452 [2d Cir. 2015]). Thus, consistent with the district's contention, the basis of the student's pendency entitlement was his educational placement as of December 9, 2024, the date on which the due process complaint notice was filed.
The parent's due process complaint notice reflects that the request for pendency differed by timeframe (see Parent Exs. A at pp. 3-7). With regard to the 2023-24 school year and summer 2024, the parent invoked pendency based on a 2020 pendency agreement; but, with regard to the 10-month, 2024-25 school year, the parent invoked pendency based on the August 2024 IESP (see id.). However, as noted above, the due process complaint notice in this matter was filed on December 9, 2024—after the start of the 2024-25 school year. Accordingly, pendency in this proceeding began on December 9, 2024 and the parent has not presented a basis, such as a prior pending proceeding, for addressing pendency prior to December 9, 2024.
The parties expressed their respective positions on pendency during the February 2025 hearing proceedings, at which time the parent seemingly abandoned her previous position that the basis of the student's pendency entitlement differed by timeframe (compare Parent Exs. A at pp. 3-7, with Tr. p. 18-19). During the impartial hearing, parent's counsel asserted that, as of December 9, 2024, the August 2024 IESP was the last agreed upon program and, thus, the basis of the student's pendency entitlement (Tr. pp. 18-19). As of December 9, 2024, the August 2024 IESP reflected the district's most recent recommendations for the student (see Parent Ex. F at p. 1); and, while district's counsel argued that dually enrolled students do not have a right to pendency, the district did not dispute that the August 2024 IESP was the last agreed upon program (see Tr. pp. 14-15, 19).[32] Therefore, I cannot conclude that the IHO's pendency determination was in error (see Application of a Student with a Disability, Appeal No. 25-035 [ordering the district to fund pendency services, in accordance with a prior, unappealed IHO decision where "[t]he district d[id] not dispute, to the extent the student [wa]s entitled to pendency, that pendency . . . lie[d] in th[at] unappealed . . . IHO decision, as argued by the parent"]).
I now turn to the parent's request for an award of funding for pendency services.
In Ventura de Paulino, the Second Circuit Court of Appeals explained that, as per the text and structure of the IDEA, it is the district that is authorized to decide how and where a student's pendency services are to be provided (959 F.3d at 532-35). For that reason, also considering that the district is the party responsible for funding the pendency services, the Second Circuit held that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding (id. at pp. 524-25, 532-36). The Court observed that:
If a parent disagrees with a school district's decision on how to provide a child's educational program, the parent has at least three options under the IDEA: (1) The parent can argue that the school district's decision unilaterally modifies the student's pendency placement and the parent could invoke the stay-put provision to prevent the school district from doing so; (2) The parent can determine that the agreed-upon educational program would be better provided somewhere else and thus seek to persuade the school district to pay for the program's new services on a pendency basis; or (3) The parent can determine that the program would be better provided somewhere else, enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved
(id. at p. 534). According to the Court, "what 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" (id.).[33]
Here, the pendency program was based on the August 2024 IESP, which called for the district to provide the student with services; however, the parent elected to unilaterally obtain private services for the student at her own financial risk (see Parent Exs. D; E ¶¶ 1, 4-5). Consequently, the parent had no entitlement to receive pendency funding for the 2023-24 and 2024-25 school years, during which time the student received private services from AIM (see Parent Exs. D; E ¶¶ 1, 4-5; Application of a Student with a Disability, Appeal No. 24-619 [finding that the parent "declined the provision of pendency services from the district" by unilaterally obtaining private services for the student]; Application of a Student with a Disability, Appeal No. 24-188 [finding that the parent was not entitled to compensatory SETSS under pendency, as the parent contracted with a private agency to deliver SETSS to the student]).
VII. Conclusion
In summary, the IHO correctly determined that the parent met her burden of establishing the appropriateness of the unilaterally obtained services for the 2023-24 school year but not for the 2024-25 school year; the hearing record does not support an award of compensatory education as an alternative form of relief for the 2024-25 school year; nor does the hearing record provide a basis to award funding of the unilaterally obtained services under pendency. Having found that the parent failed to establish the appropriateness of the unilaterally obtained services for the 2024-25 school year, the necessary inquiry is at an end, and I need not address whether equitable considerations support the parent's request for relief.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Dated: May 20, 2026
Steven Krolak
STATE REVIEW OFFICER
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] The January 2023 CSE recommended that services be delivered to the student in Yiddish but indicated that "[m]onolingual services may be utilized until a bilingual provider [can] be found" (Parent Ex. E at pp. 5, 10).
[3] The June 2023 letter referenced an April 2020 CSE meeting (Parent Ex. G at p. 1); however, based on the context, it appears that the parent's concerns pertained to educational planning for the 2023-24 school year. The June 2023 letter stated that the district "reduced [the] [student]'s services by removing the summer services" (Parent Ex. G at p. 1). The district previously recommended 12-month services in a preschool IEP, developed on January 9, 2020 (Parent Ex. C at pp. 1, 3, 9); but the prior, school-age IESP, developed in April 2020, did not include a recommendation for 12-month services (see Parent Ex. D at pp. 1, 12). It is worth noting that State guidance has indicated that Education Law § 3602-c does not require school districts to provide dual enrollment services to students with disabilities during the summer, unlike a district's obligation during the course of the regular school year, within an IESP (see "Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c," VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialed/publications/ policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf). However, State guidance also directs that for such dually enrolled (that is parentally placed) nonpublic school students who qualify for 12-month services there is a need for an IESP for the regular school year and an IEP for 12-month services programming, resulting in a 10-month IESP and a 6-week IEP ("Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf).
[4] Under the parent's contract with AIM, all services were to be delivered to the student in Yiddish (Parent Ex. K at p. 1).
[5] Unlike the 2023 contracts, the April 2024 contract did not specify the frequency and duration of the SETSS and speech-language therapy that the parent sought from AIM (compare Parent Exs. K at pp. 1-2 and L at p. 1, with Parent Ex. M).
[6] As in the parent's June 2023 letter to the district, the July 2024 letter stated that the district "reduced [the] [student]'s services by removing the summer services" (Parent Exs. G at p. 1, I at p. 1).
[7] The "Regression Statement" indicated that a number of documents needed to be provided, including the student's report card and provider progress reports; however, the statement does not include any of those documents nor does it indicate that they were actually provided to the district (Parent Ex. R).
[8] The August 2024 CSE recommended that services be delivered to the student in Yiddish (Parent Ex. F at pp. 9-10).
[9] The provider agency's full name is not consistent based on the evidence in the hearing record. The July 2023 contract, the October 2023 contract, and the April 2024 contract each referred to the agency as "AIM Educational Support Services" (Parent Exs. K at pp. 1-3; L; M at pp. 1-3). Those documents were prepared on letterhead that read "AIM Educational Support Services," as was the October 2024 contract amendment (Parent Exs. K at pp. 1-3; L; M at pp. 1-3; N). However, the July 2023 contract, the October 2023 contract, and the April 2024 contract also included an email address ending in "@aimfurther.org" (Parent Exs. K at pp. 1-3; L; M at pp. 1-3); and both the April 2024 contract and the October 2024 contract amendment referred to the agency as "AIM Further Inc" (Parent Exs. M; N).
[10] Parent exhibits A through U were admitted into evidence, but the parent's counsel withdrew proposed Parent exhibit V (Tr. pp. 16-18).
[11] The IHO noted that the student received SETSS individually, contrary to the district's recommendation for a group setting; but the IHO explained that the parent was "entitled to leeway when locating appropriate service providers," "as [the] [p]arent was forced to implement [services] . . . on [her] own" (IHO Decision at pp. 10-11).
[12] The IHO noted that the treatment plan was the only documentary evidence in the hearing record regarding the student's SETSS for the 2024-25 school year (IHO Decision at p. 14).
[13] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[14] State law provides that the parent has the obligation to establish that the unilateral placement, in this case the special education that the parent obtained from AIM, is appropriate (Educ. Law § 4404[1][c]).
[15] According to the August 2024 IESP, the CSE "requested but did not receive the [student]'s final report card" (Parent Ex. F at p. 1). Speech-language therapy "and counseling reports were not available for" the August 2024 CSE meeting either (id.).
[16] According to the August 2024 IESP, the student was receiving five hours per week of special education services, "provided in a pull-out setting" (Parent Ex. F at p. 2).
[17] According to the August 2024 IESP, the student wore prism glasses to "help[] him focus when reading" (Parent Ex. F at p. 4). No other concerns regarding physical development were noted (id. at p. 5).
[18] The parent did not file an answer to the district's cross-appeal.
[19] The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and the manner in which those services are treated in a particular case is often in the eye of the beholder. As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district; a static and reliable definition of "SETSS" does not exist within the district; and, unless the parties and the IHO take the time to develop a record on the topic in each proceeding, it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (see Application of a Student with a Disability, Appeal No. 19-047).
[20] The hearing record includes testimony from a quality assurance supervisor with AIM, as well as documentary evidence, indicating that the student's SETSS providers for the 2023-24 school year were "certified by NYS to teach students with disabilities" and that the student's speech-language therapy provider was a speech-language pathologist, licensed and "registered to practice in NYS" (Parent Exs. T ¶¶ 10-11; O at pp. 1-6).
[21] By January 2024, the student met two out of three speech-language therapy goals and made progress toward meeting the remaining goal (see Parent Ex. Q at pp. 1-2).
[22] The district does not expressly assert that the student's goals for the 2023-24 school year were inappropriate.
[23] While progress is a relevant factor to be considered, it is not dispositive (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; see also Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013]).
[24] According to the July 2024 treatment plan, the student was in second grade (Parent Ex. S at p. 1); however, other evidence in the hearing record indicates that the student was entering fourth grade at that time (see Parent Exs. E at p. 1; F at p. 1).
[25] The student's language deficits and social/emotional challenges are well documented in the hearing record (see Parent Exs. F at pp. 1-4; P at pp. 1, 3; Q at p. 1; S at pp. 1-2).
[26] The October 2024 contract amendment explicitly stated that AIM was not providing speech-language therapy services (Parent Ex. N).
[27] In V.W., the court endorsed a combined award of tuition reimbursement and compensatory education based on a denial of FAPE for the same time period (2022 WL 3448096, at *5-*6).
[28] According to the district, any pendency entitlement would be triggered by the filing of the due process complaint notice and, thus, the relevant inquiry is where pendency lay at the time the due process complaint notice was filed.
[29] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[30] If there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
[31] "[T]he pendency provision does not guarantee a disabled [student] the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).
[32] The district's contention that dually enrolled students do not have a right to pendency is deemed abandoned and will not be addressed on appeal, as the district has not asserted such an argument in its answer with cross-appeal (see 8 NYCRR 279.8[c][4] [providing that "any issue not identified in a party's request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer"]).
[33] Whether the unilaterally obtained services are from a school, like the one discussed in Ventura de Paulino, or a private company, as in this case, makes little difference.