STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-320
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 Lindsay R. VanFleet, 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 Always a Step Ahead, Inc. (Step Ahead) for the 2024-25 school year. The district cross-appeals from the IHO's pendency determination. The appeal must be sustained in part. The cross-appeal must be sustained in part, and the matter must be remanded to the IHO for further proceedings.
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 programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, 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
During the 2023-24 school year the student attended first grade in a general education class at a nonpublic school and received 10 hours per week of special education teacher support services (SETSS) due to reading, comprehension, and writing weaknesses; speech-language therapy due to receptive and expressive language delays and dysfluent speech; and occupational therapy (OT) due to decreased core strength and fine motor control (Parent Ex. B at pp. 2-6).
A CSE convened on June 3, 2024, determined that the student remained eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 6, 2024 (Parent Ex. B at p. 1). The June 2024 CSE recommended that the student receive three periods per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of group OT, and one 30-minute session per week of group counseling services (id. at pp. 11-12).[1]
On August 5, 2024, the district issued an authorization letter for the parent to obtain a maximum of 10 hours per week—360 hours in total—of SETSS for the student by an authorized provider, beginning on September 1, 2024 and ending on June 30, 2025 (Parent Ex. H).
On December 25, 2024, the parent signed a contract with Step Ahead for the provision of SETSS at a rate of $200 per hour and the provision of OT at a rate of $250 per hour for the 2024-25 school year (Parent Exs. C at p. 1; D at pp. 1-3).[2]
A. Due Process Complaint Notice
In a due process complaint notice dated February 26, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) and equitable services for the 2024-25 school year (Parent Ex. A at pp. 1-2). The parent indicated that she did not contest the appropriateness of the services recommended in the June 2024 IESP but was seeking an "order that would make the IESP and the services recommended therein the [s]tudent's educational program for the 2024-2025 school year" (id. at p. 1). The parent asserted that the district did not implement the student's IESP and that, therefore, she was required to arrange for private providers to deliver the student's services during the 2024-25 school year (id.). As relief, the parent sought "an order that would require the [district] to fund any provider the parent [wa]s able to obtain for any service on the IESP" that was provided in the 2024-25 school year at the provider's rate (id. at p. 2). The parent also requested a pendency hearing and compensatory education "as may be appropriate" to remedy the district's failure to implement the student's services (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on April 8, 2025 and concluded the same day (Tr. pp. 1-45).
In an interim decision on pendency dated April 15, 2025, the IHO determined that the student's June 2024 IESP established his educational placement for the purposes of pendency and consisted of three periods per week of SETSS and two 30-minute sessions per week of OT (IHO Ex. II at p. 1).[3] The IHO noted that the district objected to pendency on the ground of subject matter jurisdiction (id.).
In a decision dated May 19, 2025, the IHO found that the parent did not request equitable services by June 1, 2024 for the 2024-25 and dismissed the parent's claims with prejudice (IHO Decision at pp. 5, 7). The IHO determined that the district timely and properly raised the June 1 defense (id. at p. 5). The IHO also rejected the parent's arguments that she could not have satisfied the June 1 requirement because the student's most-recent CSE meeting was conducted on June 3, 2024, after the June 1, 2024 deadline and that the district had the burden to prove it did not receive a June 1 letter (id. at p. 6). Additionally, the IHO held that the SETSS authorization form sent by the district to the parent in August 2024 did not constitute a waiver of the district's June 1 defense (id. at p. 7).
IV. Appeal for State-Level Review
The parent appeals and alleges that the IHO erred in dismissing the parent's claims and argues that the dismissal should be reversed. The parent asserts that the IHO erred by: determining that the student was first identified as a student with a disability on June 3, 2024; holding that a June 1 notification is required before the start of every school year; holding that the parent failed to prove that she sent a June 1 request to the district; finding that the district did not waive the June 1 defense; and failing to award the requested relief. As relief, the parent requests an order directing the district to fund the SETSS and OT delivered to the student by Step Ahead at a rate of $200 per hour for SETSS and at a rate of $250 per hour for OT. The parent further requests 36 hours of speech-language therapy and 18 hours of counseling services as compensatory education.
In an answer and cross-appeal, the district argues that the IHO correctly dismissed the parent's claims with prejudice and that the IHO's June 1 determination should be affirmed. The district asserts that the parent failed to prove that Step Ahead's SETSS and OT were appropriate. The district argues that equitable considerations warrant a denial of all relief and that the IHO's April 2024 order on pendency directing funding for only SETSS and OT should be overturned or clarified.
The parent submitted an answer to the cross-appeal, in which the parent asserts that the IHO's pendency determination should be upheld.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A.June 1 Deadline
The parent asserts that the IHO made numerous errors regarding the requirement to request equitable services on or before June 1 and that the IHO's decision should be reversed. Specifically, the parent argues that the IHO erred: in finding that the student was first identified as a student with a disability on June 3, 2024; in holding that a June 1 request for equitable services is required before the start of every school year; in holding that the parent failed to prove that she sent a June 1 request to the district; and in finding that the district did not waive the June 1 defense.
At the outset, regarding the parent's argument that the IHO erred in finding that the student was first identified as a student with a disability on June 3, 2024, it appears the IHO did not appropriately apply Education Law § 3602-c[2][a] to this student. The IHO noted the parent's argument that the CSE did not convene until June 3, 2024 and therefore she could not have submitted a request for services by June 1, 2024 for the 2024-25 school year and rejected such argument stating that "[i]n a case where a student is not identified as having a learning disability until after June 1, the written request for services is due within 30 days of the identification of the student" (IHO Decision at p. 5; see IHO Decision 5 n. 30). The June 2024 IEP makes clear that the student had been previously found eligible for special education services before the 2024-25 school year (Parent Ex. B at p. 2). Accordingly, the IHO did not apply Education Law § 3602-c[2][a] appropriately as the parent was required to have requested equitable services by June 1 given that the student was previously identified and the parent did want the district to provide equitable services to the student for the 2024-25 school year.
However, while the parent did not provide the district with the requisite June 1 notice, the issue of whether the district waived its June 1 defense must be resolved on this appeal.
The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
Here, the district raised the June 1 affirmative defense through an April 1, 2025 email and again at the April 8, 2025 hearing (Tr. pp. 5, 29-30; IHO Ex. III). Once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"). The IHO correctly held that once the district timely raised the June 1 notification issue, the burden of proof shifted to the parent, however, as previously noted, there is no evidence in the hearing record establishing that the parent submitted a request for equitable services on or before June 1, 2024 (IHO Decision at pp. 5-6).
Having proffered no proof that she requested equitable services from the district prior to June 1, 2024, the parent argues, however, that the district nonetheless waived its June 1 defense by issuing a SETSS authorization dated August 5, 2024 (Req. for Rev.¶ 18; Parent Ex. H).
A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088). The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).
In this case, the evidence reflects that the parent received a district form authorizing her to obtain independent SETSS for parentally placed students, which stated that the student was entitled to receive a maximum of 10 hours per week of SETSS beginning September 1, 2024 (Parent Ex. H at p. 1). The SETSS authorization form further indicated that the services may not continue beyond a total of 360 hours or beyond June 30, 2025 (id.). Section 1 of the form, labeled "to be completed by [district] staff" was filled out with the student's relevant information and was consistent with the services listed in his June 2024 IESP (compare Parent Ex. B at p. 11, with Parent Ex. H at p. 1). This authorization form, which is essentially a voucher created by the district for the parent to obtain private special education services on terms identified by the district demonstrates the district's effort to ensure implementation of the student's SETSS during the 2024-25 school year and, therefore, the district's act of authorizing the parent to obtain the SETSS services from particular providers during the 2024-25 school year constitutes a "clear and unmistakable waiver" of the June 1 deadline.
Based on the foregoing, although the evidence in the hearing record shows that the parent failed to submit a request for the student to receive dual enrollment services for the 2024-25 school year by June 1, 2024, the district nevertheless waived the deadline through its conduct of completing and sending the authorization form to the parent that directed the parent to obtain the services from particular providers at district expense. Consequently, the admitted failure of the district to implement the services outlined in the student's IESP constitutes a denial of a FAPE for the 2024-25 school year.
While the district waived its June 1 defense under the facts present in this particular case, it is worth noting that, on appeal, the parent also asserts that, in any event, she was not required to send a notice before June 1, 2024 to request equitable services for the 2024-25 school year. The parent argues that Education Law § 3602-c only requires notice prior to the first school year for which a student's parents request equitable services. However, this argument is in contravention of the requirement set forth in Education Law § 3602-c which states that the request be filed "on or before the first of June preceding the school year for which the request is made" (Educ. Law § 3602-c[2] [a][emphasis added]). The statute does not differentiate between students already identified and receiving services pursuant to an IESP during the prior school year and those who are not; however, the law does make exceptions for students first identified as students with disabilities after the June first deadline (Educ. Law § 3602-c[2][a]). Accordingly, to satisfy the statutory notice requirement, parents must make the request each year for which they seek dual enrollment services.
B.Pendency
The district cross-appeals from the IHO's interim decision on pendency, asserting that the IHO's award of only the parent's requested services instead of all of the services recommended in the June 2024 IESP amounts to "an a la carte version of [p]endency" and therefore the order should be annulled or clarified (Answer & Cr.-App. ¶ 18).
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see 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]). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (T.M., 752 F.3d at 170-71; Concerned Parents and 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. 46709 [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 (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. 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 [OSEP 2007]).
A pendency placement includes 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]). 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]).
In an April 15, 2025 interim decision on pendency, the IHO found that the student's educational program during the pendency of the proceeding was based on the June 2024 IESP, but modified the pendency order to include only SETSS and OT and not to include speech-language therapy or counseling (IHO Ex. II at p. 1). Limiting pendency services to only SETSS and OT, however, represented an impermissible change in the status quo by treating the services in the June 2024 IESP as divisible for pendency purposes. Instead, pendency must lie in the last agreed-upon program, which was the entirety of the student's June 2024 IESP (see Parent Ex. B). Services recommended by the June 2024 CSE included three periods per week of group SETSS, two 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of group OT, and one 30-minute session per week of group counseling services (id. at pp. 11-12).
The district also argues that because the parent acted unilaterally in arranging for private services, she rejected pendency. As noted in the parent's due process complaint notice, she made unilateral arrangements to obtain services from a private provider for the student (see Parent Ex. A). 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 v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]). 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 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 parents had not been found appropriate in any administrative proceeding.
Based on the foregoing, the district's cross-appeal seeking vacatur of the IHO's order on pendency is sustained.
C. Remand to IHO
Having found that the district failed to offer the student a FAPE for the 2024-25 school year, the merits of the parent's claim and request for relief remain to be addressed.
When an IHO has not addressed the issues raised in a due process proceeding, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims or arguments that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]). Here, because the IHO denied relief based on the June 1 defense, the IHO did not address whether the unilateral services were, under the totality of the circumstances, specially designed to address the student's unique special education needs; and whether equitable considerations would have warranted a denial or reduction of relief. Therefore, the case must be remanded to the IHO for further evidentiary proceedings, if the IHO determines within his discretion that additional evidence is required to complete the record, and a determination on the issue of the appropriateness of the parent's unilateral placement of the student, including the student's special education instruction, related services, and placement of the student at Step Ahead and, if necessary, the IHO should also make a finding regarding the issue of equitable considerations.
VII. Conclusion
For the reasons described above, the IHO erred in holding that the district did not waive its June 1 defense by providing the parent with a SETSS authorization form and the matter must be remanded to the IHO for a determination of the appropriateness of the parent's unilaterally-obtained services from Step Ahead for the 2024-25 school year, and, if necessary, a balancing of equitable considerations.
Additionally, the IHO's interim decision on pendency is vacated.
I have considered the parties' remaining contentions and find it unnecessary to address them in light of my determinations herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's interim decision on pendency, dated April 15, 2025, is hereby vacated; and
IT IS FURTHER ORDERED that the IHO's decision dated April 24, 2025, is hereby modified by reversing those portions which found that the student was not entitled to equitable services from the district for the 2024-25 school year due to the parent's failure to submit a written request for such services; and
IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the parent met her burden of proving that the unilaterally obtained services from Step Ahead were appropriate for the student, and if necessary, whether equitable considerations weigh in favor of granting funding for the costs of the services provided by Step Ahead; and
IT IS FURTHER ORDERED that, in the event the IHO cannot hear this matter upon remand, another IHO shall be appointed.
Dated: May 29, 2026
Carol H. Hauge
STATE REVIEW OFFICER
Footnotes
[1] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[2] Step Ahead has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[3] Although the pendency order referenced the June 2024 IESP, the pendency order did not direct the district to fund counseling or speech-language therapy services recommended by the June 2024 CSE (compare Parent Ex. B at pp. 11-12, with IHO Ex. II at p. 1).
[4] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("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 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.