STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-341
Application of a STUDENT WITH A DISABILITY, by her 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: The Law Office of Elisa Hyman, PC, attorneys for petitioner, by Erin O'Connor, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.
DECISION
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 those parts of a decision of an impartial hearing officer (IHO) which found components of her unilateral placement of her daughter (the student) were inappropriate, consisting of enrollment at the Windward School (Windward) along with home-based services, and which denied in part her requested relief for the 2024-25 school year. Respondent (the district) cross-appeals from that portion of the IHO's decision which awarded funding for physical therapy services delivered to the student during the 2024-25 school year. The appeal must be dismissed. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student in this matter has been the subject of at least three prior impartial hearings related to the 2021-22, 2022-23, and 2023-24 school years (Parent Ex. A at pp. 5-9).[1] The hearing record reflects that the student attended Windward for the 2021-22, 2022-23, and 2023-24 school years (id. at pp. 5, 6, 8).
On February 20, 2024, the student began receiving one hour per week of home-based OT delivered by Kidz Choice Services, Inc. (Kidz Choice) (Parent Ex. Q at pp. 1, 3). For the 2024-25 school year, the student also received individual speech-language therapy delivered by Kidz Choice (Parent Ex. V ¶¶ 3, 5, 20).[2]
On March 11, 2024, the parent electronically signed an enrollment contract for the 2024-25 school year, which indicated the student was entering sixth grade (Parent Ex. K at pp. 1, 7).
A CSE convened on May 9, 2024, determined that the student was eligible for special education as a student with a learning disability, and developed an IEP for the student with a projected implementation date of May 23, 2024 (see generally Dist. Exs. 5; 6).[3] The CSE recommended that the student receive 12-month services consisting of a 12:1 special class; two periods per week of group special education teacher support services (SETSS) in math; three periods per week of group SETSS in English language arts (ELA); one 30-minute session per week of individual occupational therapy (OT); one 30-minute session per week of OT in a group of three; two 30-minute sessions per week of individual physical therapy (PT); one 30-minute session per week of individual speech-language therapy; and one 30-minute session per week of speech-language therapy in a group of three (id. at pp. 26-27).[4]
By letter dated June 17, 2024, the parent notified the district of her disagreement with the recommendations of the May 2024 CSE, and of her intention to unilaterally place the student at Windward for the 2024-25 school year (Parent Ex. E at pp. 9-11). The parent further sought public funding for the cost of the student's attendance at Windward and for the cost of transportation for the 2024-25 school year (id. at p. 11). In addition, the parent requested that the district be directed to prospectively fund, satisfy the debt for and/or reimburse her for one hour per week of individual OT, 90 minutes per week of individual speech-language therapy, and an assortment of assistive technology devices (id. at pp. 14-15). The parent also sought compensatory education for unimplemented related services as well as for unimplemented pendency services (id. at p. 15).
A. Due Process Complaint Notice and Events Post-Dating the Due Process Complaint Notice
In a due process complaint notice dated July 1, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A at p. 1). In pertinent part, the parent alleged that the student-to-teacher ratio in a 12:1 special class was not appropriate as it was too large and would not provide the student with sufficient individualized 1:1 and small group instruction (id. at p. 9). As a result of the district's failure to offer an appropriate placement to the student, the parent unilaterally placed her at Windward for the 2024-25 school year (id. at p. 11). The parent requested an order directing the district to fund the costs of her daughter's tuition at Windward, the special education transportation costs to and from the school, privately obtained OT and speech-language therapy services, and multiple assistive technology devices (id. at pp. 14-15).[5]
On July 31, 2024, a district representative countersigned a pendency implementation form, which indicated that the student's pendency services were in accordance with a December 22, 2023 unappealed IHO decision, and consisted of 12-month enrollment at Windward, two 30-minute sessions per week of individual OT, two 45-minute sessions per week of individual speech-language therapy, and assistive technology devices including a Microsoft Surface 3, 13.5 inches; Microsoft Surface Pro Pen; EarPods; Read and Write literacy software by Texthelp; Epic! Books Individual Membership; "Google Docs g. Typing club.com;" Microsoft OneNote; MindView by Matchware; Microsoft Sticky Notes; and AutoDesk Sketchbook (July 31, 2024 Pendency Implementation Form). The form also indicated that the student's entitlement to pendency services began on the date of filing of the due process complaint notice, which was July 1, 2024 (id.).
On August 29, 2024, the district filed a due process response generally denying the allegations set forth in the due process complaint notice and indicating its intent to assert multiple affirmative defenses (Parent Ex. F).
B. Impartial Hearing Officer Decision
A status conference was held on October 29, 2024, and the parties reconvened for an impartial hearing on February 11, 2025, before an IHO with the Office of Administrative Trials and Hearings (OATH) (Tr. pp. 1-81).[6] In a decision dated April 30, 2025, the IHO found that the district failed to provide the student with a FAPE for the 2024-25 school year, noting that the district did not provide any witness testimony or make any request for rebuttal witnesses except recalling the parent (IHO Decision at p. 6).[7] Next, utilizing a Burlington/Carter analysis, the IHO concluded that the parent's placement of the student at Windward was appropriate (id. at pp. 7-9). The IHO found that Windward administered numerous assessments to determine how best to help the student, and that a parent witness, the CSE liaison for Windward, had specific knowledge of the student's behaviors and proclivities and how that affected the student's ability to learn (id. at p. 7). The IHO noted that Windward employed "well-educated teachers"; provided small classes and utilized appropriate methodology; and that the student had made progress (id.). Additionally, the IHO found that the student's socialization and ability to interact appropriately had improved (id.).
The IHO then turned to the parent's request for additional services over and above that provided by Windward. The parent claimed that the request stemmed from the student's "unique profile" and was not a "referendum on the appropriateness of the [p]rivate school" (IHO Decision at p. 7). The IHO found the position to be "incongruous" (id.). The IHO concluded that if the private school was appropriate, it would specifically cater to the student's speech-language needs (id.). The IHO noted that the parent had not requested "some exotic form of therapy, but merely traditional therapies" (id. at pp. 7-8). Based on the foregoing, the IHO concluded that the need for additional services, with the exception of PT, was unnecessary (id. at p. 8).
Next, the IHO found that equitable considerations did not warrant a reduction in the amount of the parent's request for tuition funding (IHO Decision at pp. 8-9). The IHO found that the parent, as a whole, acted in "good faith" and cooperated at every stage of the proceeding (id. at p. 9).
Finally, the IHO addressed the parent's request for the funding of assistive technology and special education transportation (IHO Decision at p. 9). The IHO concluded that the technology appeared to have been provided by Windward but that the parent was entitled to the costs of the special education transportation (id.).
As relief, the IHO ordered the district to directly fund the tuition costs of Windward for the 2024-25 school year, together with the PT services actually rendered to the student at the provider's customary rate (IHO Decision at p. 10). The IHO also ordered the district to reimburse the parent for travel expenses at the "I.R.S. reimbursement rate and provide ongoing transportation for the [12-month] school year" (id.).
IV. Appeal for State-Level Review
The parent appeals and alleges that the IHO erred in denying funding for the student's home-based services delivered by Kidz Choice for the 2024-25 school year. The parent also asserts that the IHO erred in directing the district to fund PT services that were actually delivered to the student. The parent initially argues that the IHO erred in applying a Burlington/Carter analysis to the parent's request for funding, however she also argues that she met her burden to establish the appropriateness of her unilaterally obtained home-based services.
The parent asserts that the IHO erred in finding that Windward addressed the student's speech-language therapy and OT needs. The parent also alleges that the IHO improperly terminated the student's pendency, which included the home-based services of speech-language therapy and OT. Next, the parent contends that the IHO's award of PT actually delivered failed to provide a remedy for the district's denial of a FAPE to the student. The parent alleges that the student did not receive any PT services during the 2024-25 school year, and that the district should have been directed to prospectively fund PT at the parent's chosen provider's customary rate. The parent further argues that the district should be required to fund 40 hours of compensatory PT.
Finally, the parent argues that the IHO erred in excluding parent exhibits B-D, and requests that they be considered as additional evidence.[8] The parent requests declaratory relief as well as funding for home-based speech-language therapy and OT. The parent further requests 40 hours of compensatory PT.
In an answer and cross-appeal, the district asserts that the IHO erred in directing the district to fund any PT delivered to the student during the 2024-25 school year. The district maintains that the due process complaint notice did not include a demand for either the direct funding of PT services nor a bank of hours of compensatory PT. In addition, there was no evidence presented during the impartial hearing that any privately obtained PT services were ever delivered to the student during the 2024-25 school year. As to the parent's request for compensatory PT, the district argues that the compensatory relief was precluded since the parent engaged in self-help by unilaterally enrolling the student at Windward.
The district further contends that the IHO's decision should be affirmed to the extent that it denied an award of direct funding for privately obtained speech-language therapy and OT for the student during the 2024-25 school year (id. at pp. 3-4). The district argues that the IHO properly analyzed the appropriateness of the parent's home-based services. In addition, the district maintains that the parent's request for review did not seek direct funding of those services but only a declaration that those services, together with PT, constituted the student's educational program for the 2024-25 school year (id. at p. 4). Moreover, the district argues that such a declaration would improperly circumvent the statutory process wherein the CSE is tasked with reviewing information about a student's progress under current educational programming and periodically assessing the student's needs (id.). Finally, the district argues that the IHO correctly determined that Windward sufficiently addressed the student's speech-language and OT needs (id. at pp. 4-5).
The parent interposed an "answer and reply" to the district's answer and cross-appeal.
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]).[9]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A. Scope of Review
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"]). The Second Circuit has held that courts assessing the propriety of a unilateral placement must consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
As noted above, in somewhat contradictory findings, the IHO determined that the parent met her burden of demonstrating the appropriateness of her unilateral placement, while also finding that certain components of the unilateral placement were not appropriate (IHO Decision at pp. 7-8). Specifically, the IHO found that the parent "ha[d] proven by a preponderance of the evidence that the unilateral placement was appropriate," that the testimony "demonstrated that [Windward] specialized in providing instruction for children with disabilities[,] … administered numerous assessments to determine how best to help [the s]tudent," and addressed the student's "behaviors and proclivities," and demonstrated that the student made appropriate progress (id. at p. 7). The IHO then found that the parent "request[ed] additional services over and above the services provided by [Windward]" that the parent "claim[ed] … [wa]s due to [the s]tudent's 'unique profile' and [wa]s not a referendum on the appropriateness of [Windward]" (id.). The IHO determined that the parent's "position [was] incongruous" and that "[i]f a private school [wa]s appropriate, it would specifically cater to [the s]tudent's speech language needs" (id.). The IHO determined that "the evidence show[ed] that [Windward] school specifically cater[ed] to these needs, if not the physical therapy requirements" and that Windward was "appropriate and the need … for additional services, aside f[rom] physical therapy, [were] unnecessary" (id. at p. 8).
The IHO awarded funding for the cost of the student's attendance at Windward and further denied the parent's "requests [for] additional services" (IHO Decision at pp. 8, 10). The legal standard for determining the appropriateness of a unilateral placement pursuant to a Burlington/Carter analysis is whether the unilateral placement provided instruction specially designed to meet the unique needs of the student. Additionally, the program provided by the parents' unilateral placement must be reasonably calculated to enable the student to receive educational benefit. Here, the IHO articulated the correct legal standards in his decision; however, upon application of those standards in his analysis of the appropriateness of the parent's unilateral placement, he conflated the appropriateness discussion with equitable considerations.
The IHO found that the parent's home-based services were unnecessary, thus the IHO determined that the student did not require the home-based services to receive an educational benefit. The proper analysis under Burlington/Carter is whether the parent's unilateral placement—which consisted of both enrollment at Windward along with home-based speech-language therapy and OT—constituted instruction specially designed to address the student's needs when viewed in light of the totality of the circumstances.
The IHO's findings that the parent's home-based services were unnecessary tends to indicate that he viewed the parent's home-based services as exceeding the requirements of a FAPE (IHO Decision at pp. 7-8). While the IHO rightly addressed the persuasiveness of some of the evidence presented by the parent, the question of excessiveness of services is an equitable consideration, and the Second Circuit Court of Appeals has held it is error for an IHO to apply the Burlington/Carter test by weighing equitable considerations in the IHO's analysis of the appropriateness of the unilateral placement (A.P. v. New York City Dep't of Educ., 2024 WL 763386, at *2 [2d Cir. Feb. 26, 2024] [explaining that the first two prongs of the test generally constitute a binary inquiry that determines whether or not relief is warranted and holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]).
While the IHO's analysis was flawed, neither party has appealed from the IHO's determinations that the district failed to meet its burden to prove that it offered the student a FAPE for the 12-month, 2024-25 school year, or that Windward was an appropriate unilateral placement. Accordingly, those findings have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
Typically, the next inquiries would revolve around the appropriateness of the parent's home-based services and equitable considerations, however, at this point in the proceeding those issues have been rendered moot, as discussed below.
B. Mootness
A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]). Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).
Here, the parent sought funding for the student's unilateral placement, which consisted of funding for the student's tuition at Windward and for the cost of the student's home-based speech-language therapy and OT services for the 12-month, 2024-25 school year (Parent Ex. A at pp. 14-15). Specifically, the parent requested that the district be directed to fund through either direct/prospective payment or reimbursement:
(a) 12-month extended school year;
(b) the Windward School;
(c) special education transportation with limited travel time to and from the Windward School;
(d) Occupational Therapy, 1:1, twice per week for 30 minutes;
(e) Speech and Language Therapy, 1:1, twice per week for 45 minutes;
(f) Assistive Technology: 1) Microsoft Surface 3, 13.5"; 2) Microsoft Surface Pro Pen; 3) EarPods; 4) Read and Write literacy software by Texthelp; 5) Epic! Books Individual Membership; 6) Google Docs g. Typing club.com; 7) Microsoft OneNote; 8) Mind View by Matchware; 9) Microsoft Sticky Notes; and 10) AutoDesk Sketchbook
(Parent Ex. A at pp. 14-15).
The district was required to fund the student's stay put placement from the date of the parent's July 1, 2024 due process complaint notice through the pendency of these proceedings in accordance with the parties' agreement as set forth in the pendency implementation form dated July 31, 2024 (Pendency Implementation Form). The student's pendency services were based on an unappealed December 22, 2023 IHO decision. According to the pendency implementation form, the student was entitled to 12-month services, including tuition at Windward, two 30-minute sessions per week of individual OT, two 45-minute sessions per week of individual speech-language therapy, and assistive technology consisting of (1) Microsoft Surface 3, 13.5"; (2) Microsoft Surface Pro Pen; (3) EarPods; (4) Read and Write literacy software by Texthelp; (5) Epic! Books Individual Membership; (6) Google Docs g. Typing club.com; (7) Microsoft OneNote; (8) MindView by Matchware; (9) Microsoft Sticky Notes; and (10) AutoDesk Sketchbook (id.).
While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]). However, in this instance, the student received services under pendency for the entirety of the 12-month, 2024-25 school year and the parent's due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Ex. A at pp. 14-15). Among the arguments presented by the parent in her request for review for the proposition that she does not have a burden to demonstrate the appropriateness of her home-based services is that the student receives speech-language therapy and OT as part of her pendency services. Further, during the prehearing conference, the parent's attorney stated that there was a pendency agreement in place for the student (Aug. 26, 2024 Tr. p. 8). Accordingly, the parent has received all of the relief she sought in this proceeding.
Additionally, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040). The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88). Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85). Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15). To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).
Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).
Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement in that matter and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10). However, in this matter, neither party has appealed from the IHO's determination on the merits that the district failed to offer the student a FAPE for the 12-month, 2024-25 school year (see IHO Decision at p. 6). Accordingly, there can be no determination on the merits to the contrary in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and further remediable.
Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding. Rather, the parties' dispute centers around the unilateral placement consisting of enrollment at Windward as well as particular home-based services the parent obtained as self-help to remedy the district's denial of a FAPE to the student. As the FAPE determination has already been addressed and the only issues in this matter relate to the appropriateness of the unilateral placement and the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review." While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed. Without an IEP dispute, the question of the appropriateness of a unilateral placement could be made in a much shorter time frame. More pertinently, however, because there is no longer a dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review." As such, the issue of whether a unilateral placement is appropriate, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.
Based on the foregoing, the questions of whether the parent's unilateral placement was appropriate and whether equitable considerations favor relief for the parent are moot as there is no further relief that may be granted.
C. Compensatory Education
Lastly, the parties agree that the IHO erred in directing the district to fund the cost of the student's PT services "actually rendered at the provider's customary rate" (IHO Decision at p. 10). The parent asserts that the student did not receive any PT services during the 12-month, 2024-25 school year and is entitled to 40 hours of compensatory education in accordance with the May 2024 CSE's recommendation. In its cross-appeal, the district argues that the parent failed to request funding for PT in her due process complaint notice, failed to assert that the student required PT or maintain that the student had deficits which PT was designed to address. The district further contends that the parent is not entitled to compensatory PT services because she removed the student from public school and privately obtained a self-help remedy
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., 758 F.3d at 451; 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"]).
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"]; but see I.T. v. Dep't of Educ., State of Hawaii, 2013 WL 6665459, at *7-*8 [D. Haw. Dec. 17, 2013] [finding that the student was entitled to compensatory education for services the student received at the nonpublic 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]). Accordingly, unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave 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). However, if permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.
Here, the parent was not seeking funding for private PT services she secured for the student. Rather, the IHO found that Windward did not meet the student's PT needs and ordered the district to fund compensatory PT in accordance with a recommendation set forth in the May 2024 IEP (IHO Decision at p. 8). However, the parent rejected the May 2024 IEP, unilaterally enrolled the student at Windward and unilaterally obtained OT and speech-language therapy. The parent did not obtain PT for the student and did not request any relief related to PT in her due process complaint notice (see Parent Ex. A). The IHO found a gap in the services provided by Windward by improperly comparing the recommendations of the May 2024 CSE with the program unilaterally obtained by the parent. Review of the hearing record in this matter indicates that there is no basis to find that this matter represents a unique or rare circumstance such that it would warrant an order requiring the district to fund the unilateral placement, as well as prospective compensatory education to make-up for deficiencies in the placement chosen by and arranged for by the parent. To do so would amount to double relief, which I decline to order, and accordingly, I will sustain the district's cross-appeal and deny the parent's request for compensatory education.
VII. Conclusion
In summary, the hearing record does not support a finding that the parent was entitled to both tuition reimbursement and compensatory education, and the parent's request must be denied. Further, the IHO erred in awarding funding for PT services actually rendered to the student. In addition, while the IHO did not correctly apply the Burlington/Carter three-part test to determine whether the parent was entitled to public funding for her unilateral placement, I find that it is unnecessary to review whether her unilateral placement was appropriate or whether equitable considerations warrant a reduction in relief because the district has already funded all of the parent's requested relief pursuant to pendency.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO's decision, dated April 30, 2025, is modified by vacating that part which ordered the district to fund the cost of the student's PT services actually rendered at the provider's customary rate for the 12-month, 2024-25 school year.
Dated: Albany, New York
June 30, 2026
Carol H. Hauge
STATE REVIEW OFFICER
Footnotes
[1] Each of the prior impartial hearings were decided on the merits and resulted in unappealed IHO decisions (Parent Ex. A at pp. 5-9).
[2] The hearing record did not indicate when the student began receiving speech-language therapy services from Kidz Choice (Tr. pp. 41-50; see Parent Exs. P; V). The student's speech-language pathologist recommended that the student receive two hours per week of individual speech-language therapy, however, she testified during cross-examination that as of "November," the student was receiving 90 minutes per week of individual speech-language therapy (compare Parent Ex. V ¶¶ 17, 20, with Tr. pp. 44, 47).
[3] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[4] 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.
[5] At the impartial hearing, the parent acknowledged that she had not expended any money on assistive technology but that she had to share her personal computer with the student when the student needed it at home (Tr. pp. 66-67).
[6] The parties convened for a prehearing conference August 26, 2024 (Aug. 26, 2024 Tr. pp. 1-10). The transcripts for the status conference and for the impartial hearing were not consecutively paginated with the prehearing conference. To the extent it is necessary to cite to the prehearing conference, the transcript will be cited by the date and corresponding page number.
[7] In fact, the district conceded at the impartial hearing that it was not presenting a defense to the claim that it had failed to offer the student a FAPE for the 2024-25 school year (Tr. p. 31).
[8] Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an impartial hearing officer's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of the Dep't of Educ., Appeal No. 08-024; Application of a Student with a Disability, Appeal No. 08-003; Application of the Bd. of Educ., Appeal No. 06-044; Application of the Bd. of Educ., Appeal No. 06-040; Application of a Child with a Disability, Appeal No. 05-080; Application of a Child with a Disability, Appeal No. 05-068; Application of the Bd. of Educ., Appeal No. 04-068). The parent has submitted three unappealed IHO decisions, which total 88 pages as a single proposed exhibit. The parties agreed to the student's pendency in an agreement dated July 31, 2024, which based the student's pendency services on a December 22, 2023, unappealed IHO decision. The parent's proposed exhibit is not necessary to render a decision in this matter and will not be further considered.
[9] 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).