STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-417
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances: Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.
Gulkowitz Berger LLP, attorneys for respondent, by Shaya M. Berger, 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 district) appeals from a decision of an impartial hearing officer (IHO) which ordered it to fund respondent's (the parent's) privately obtained services delivered by Broader Minds, Inc. (BMI) for the 2024-25 school year, and fund a bank of compensatory education services. The district also appeals from a prior IHO's interim decision on pendency. The appeal must be sustained, and the matter 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 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 hearing record indicates that the student struggled academically specifically in reading, comprehension, and math (Parent Ex. B at p. 2). A CSE convened on June 12, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of June 27, 2023 (id. at p. 1).[1], [2] The June 2023 CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS) in Yiddish, together with two 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual occupational therapy (OT) in English (id. at pp. 9-10).[3]
In a letter dated May 31, 2024, the parent, through her then-attorney, notified the CSE that the student had been parentally placed in a nonpublic school and requested that the student's special education services be provided by the district during the 2024-25 school year (Parent Ex. D).
The parent and a representative of BMI signed an agreement for services with an effective date of September 1, 2024 (Parent Ex. E). According to the agreement, BMI would provide the student with SETSS in the amount "mandated on" her IESP at the rate of $195 per hour during the 2024-25 school year (id.). The agreement indicated that the parent retained a lawyer to request the district to pay BMI directly for the cost of the SETSS provided to the student and that the parent would not be required to make any payment until that process concluded (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated January 15, 2025, the parent, through her current attorney, 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 p. 2). The parent asserted that the June 2023 IESP was appropriate to meet the student's unique needs, but the district failed to provide the student with the recommended SETSS, OT and speech-language therapy for the 2024-25 school year, requiring the parent to find her own providers for the student's services (id. at p. 1). As relief, the parent requested an award of services from the June 2023 IESP pursuant to pendency, an award ordering the district to directly fund services delivered by the parent's chosen providers, and an award of compensatory education for missed services (id. at p. 2).
The district submitted a response to the parent's due process complaint dated January 24, 2025, which entered general denials of the parent's claims and set forth defenses the district planned to pursue (Parent Ex. C).
B. Impartial Hearing Officer Decision
An IHO (IHO I) from the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter, and issued an undated Omnibus Standing Order and a March 5, 2025 interim decision on pendency. IHO I determined that the student was entitled to five periods per week of SETSS, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT in accordance with the recommendations of the June 2023 CSE (Interim IHO II Decision). By written motion dated March 18, 2025, the district asserted that IHO I lacked subject matter to review the parent's claims and requested that the parent's due process complaint notice be dismissed (Dist. Ex. 9 at pp. 1-4).
A second IHO from OATH was appointed to preside over the matter (IHO II).[4] The parties convened before IHO II for an impartial hearing on April 1, 2025, which concluded on April 25, 2025, after two days of proceedings (Tr. pp. 1-54). During the April 1, 2025 impartial hearing date, IHO II denied the district's motion to dismiss (Tr. p. 8).
On May 9, 2025, another IHO (IHO III) from OATH was appointed to preside over the matter, who issued a decision in this matter on May 30, 2025 (IHO Decision at pp. 3, 6). IHO III found that the district denied the student a FAPE for the 2024-25 school year by failing to implement the student's June 2023 IESP, and that the relief the parent sought was appropriate (IHO III Decision at pp. 3-5). IHO III noted that, at the impartial hearing, the following was undisputed: that the June 2023 IESP submitted into evidence by both the parent and the district was the student's applicable IESP and that the SETSS and related services the parent sought were listed in the IESP (id. at p. 4). IHO III determined that the district did not allege and did not submit any evidence to prove that the services were implemented and, therefore, it was undisputed that the district failed to implement the services set forth in the June 2023 IESP (id.). IHO III noted that the parent had located a provider to implement the SETSS portion of services listed in the IESP at an enhanced rate, however, the parent had not located a provider for the OT and speech-language therapy listed in the IESP (id.). IHO III acknowledged the district's argument that the rate charged by BMI was excessive and that it had submitted a study into evidence regarding what it believed the fair market rates for SETSS, OT and speech-language therapy; however, IHO III determined that the study was not credible because the district failed to present any witness testimony addressing the study or substantiating its contents and conclusions (id.). IHO III also noted that he had denied the district's motion to dismiss the parent's due process complaint notice based upon a lack of subject matter jurisdiction (id. at p. 5).
As relief, IHO III ordered the district to fund/reimburse the parent for five hours per week of SETSS for the 2024-25 school year provided by an independent provider of the parent's choosing, at a rate not to exceed $195 per hour; and ordered the district to fund/reimburse the parent for speech-language therapy and OT provided by an independent provider of the parent's choosing, at a rate not to exceed $250.00 per hour (IHO III Decision at p. 6). IHO III also ordered that the total hours included in the June 2023 IESP for related services for the 2024-25 school year be placed into a bank of compensatory hours, which would expire three years from the date of the decision, because the parent had not been able to locate a provider for the services (id.).
IV. Appeal for State-Level Review
The district appeals and alleges that IHOs lack subject matter jurisdiction to determine the parent's claims; that IHO III failed to address whether the parent properly requested equitable services by June 1, 2024; and that IHO III failed to properly assess the parent's case under a Burlington/Carter standard. The district further asserts that the parent failed to provide evidence of how the unilaterally obtained SETSS were specifically designed to address the student's unique needs as there was no evidence of the instruction the student received, what needs of the student the SETSS addressed, how SETSS assisted the student to access the general education curriculum, or how, where, and when or in which classes the student received SETSS. Furthermore, the district argues that the rate for the cost of the unilaterally obtained SETSS should be reduced to a rate between $90 and $127.70 per hour. The district also alleges that IHO III erred in awarding compensatory education for unimplemented OT and speech-language therapy, arguing that because the parent engaged in self-help and unilaterally obtained private services for the student, an award of compensatory education is not appropriate. The district also argues that the parent testified she did not want BMI to provide the student with OT and there is no evidence that the parent wanted the student to receive speech-language therapy. The district alleges the parent did not submit a 10-day notice. Lastly, the district alleges the SRO should annul or clarify IHO II's interim decision on pendency to the extent that the order could be read as to warrant public funding of services and because the parent implemented an a-la-cart version of pendency by not fully obtaining the services in the IESP.
In an answer, the parent argues that IHOs have jurisdiction to address her claims; that IHO III did not err by failing to dismiss her due process complaint notice based on an alleged failure to request equitable services by June 1, 2024; and that IHO III did not err in finding that the parent was entitled to funding for the SETSS delivered by BMI. The parent also argues that IHO III correctly determined the rate for the awarded SETSS and that equitable considerations weighed in the parent's favor. The parent alleges that IHO III appropriately awarded compensatory education. Regarding the district's argument on pendency, the parent argues at no point did the district offer services but rather left it to her to find providers to implement pendency and that under such circumstances, pendency relief and funding for pendency required services are appropriate.
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]).[5] "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.).[6] 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. Preliminary Matters
1. Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the district's appeal concerning subject matter jurisdiction. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues that federal law confers no right to file a due process claim regarding services recommended in an IESP and that New York law confers no right to file a due process complaint notice regarding IESP implementation claims. Although not explicitly argued at the impartial hearing before the IHO, a lack of jurisdiction "can never be forfeited or waived" U.S. v. Cotton, 535 U.S. 625, 630 [2002]). Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-296; Application of a Student with a Disability, Appeal No. 25-287; Application of a Student with a Disability, Appeal No. 25-281; Application of a Student with a Disability, Appeal No. 25-264; Application of a Student with a Disability, Appeal No. 25-224; Application of a Student with a Disability, Appeal No. 25-220; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-079; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of the New York City Dep't of Educ., Appeal No. 25-068; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).[7]
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment 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]).[8]
Education Law § 3602-c, concerning students who attend nonpublic schools, 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 section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have, in the past, taken into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[9] In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[10]
In its request for review, the district contends that, under the Education Law, parents do not have and have never had a right to bring a due process complaint notice for the implementation of IESP claims or enhanced rate services. Consistent in part with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[11] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief, available under § 4404, are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 [2d Cir. 2009], quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002]; see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also use the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[12] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
2. Pendency
Turning to the district's argument regarding pendency, 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., 752 F.3d at 170-71; 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).
Here, the parties do not dispute overall that the June 2023 IESP would have formed the basis for the student's pendency during the instant administrative proceedings (Interim IHO II Decision). However, the district argues that, when the parent acted unilaterally in arranging for private SETSS services, she rejected pendency. Indeed, the parent made clear in her due process complaint notice that she made unilateral arrangements to obtain services for the student from private providers (see Parent Ex. A). Thus, at this juncture it appears that it is the parent, not the district, that altered the status quo for purposes of "stay-put."
The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35) The Court described that:
[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.
(id. at 534).
In short, the parent's decision to unilaterally obtain the private SETSS 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. While IHO II's interim decision does not indicate whether the district was required to provide or fund pendency services delivered by the parent's chosen provider, the parent is not entitled to the ultimate relief requested in the due process complaint notice as the student's pendency placement. Thus, under these circumstances, IHO II erred in finding the student was entitled to the services on the June 2023 IESP as pendency.
3. Legal Standard and Remand
The district contends that IHO III erred in failing to evaluate the parent's request for relief under a Burlington-Carter framework.
In this matter, the student has been parentally placed in a nonpublic school, and the parent did not seek tuition reimbursement from the district for the student's attendance. Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from BMI for the student without the consent of the school district officials and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "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. They 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 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' 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."]).
Contrary to the parent's contentions on appeal, the parent's request for district funding of privately obtained services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student 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 (Carter, 510 U.S. 7; 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. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[13] 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "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).
Although use of the Burlington-Carter framework for a matter involving an IESP developed pursuant to State Education Law § 3602-c, rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district. I also note that IHOs have not approached the question with consistency. While the IHO may disagree with the use of the Burlington-Carter standard, I find the alternative approaches adopted by some IHOs insufficient to address the factual circumstances in these cases.
While acknowledging the distinctions and concerns identified by the IHO, the most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington-Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education). In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services. For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.
In this instance, IHO III did not apply the Burlington/Carter framework but rather found that the student was entitled to services recommended in the June 2023 IESP, the district did not implement those services, and the parent located a provider to implement SETSS, thus the parent was entitled to receive funding for SETSS and compensatory education for speech-language therapy and OT (IHO Decision at pp. 4-5). Accordingly, IHO III erred by not applying the Burlington/Carter framework.
When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims 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]). Because IHO III failed to determine if the parent timely sent a June 1st notice letter by June 1, 2024, failed to examine whether the SETSS services provided by BMI were appropriate to meet the student's unique needs taking into account the totality of the circumstances and failed to assess the appropriateness of an award of compensatory education in light of the parent's act of engaging in self-help for only a portion of the services desired, IHO III's decision on these issues must be vacated and the matter remanded to IHO III for further proceedings.[14], [15] On remand, at the outset, IHO III shall determine if the parent properly sent a June 1 notification letter requesting equitable services from the district for the 2024-25 school year. If IHO III finds that the parent timely sent a June 1 notice letter, IHO III shall then assess the appropriateness of the parent's unilaterally obtained services using the Burlington/Carter standard. If IHO III finds the parent met her burden to demonstrate the appropriateness of the services delivered by BMI, IHO III shall consider whether equitable considerations support an award of reimbursement of direct funding for the costs of the services provided by BMI. IHO III should further reconsider the parent's request for compensatory education taking into account the circumstances surrounding the parent's arrangement of some, but not all, of the services that the parent believed the student required in order to receive educational benefit.[16]
VII. Conclusion
For the reasons described above, the student is not entitled to an award based on pendency. Further, having determined that remand is necessary, IHO III is directed to review the parent's claims applying a Burlington/Carter analysis. Upon determining the adequacy of the hearing record developed during the impartial hearing, IHO III is directed to determine if the parent timely requested equitable services from the district. If IHO III finds in the affirmative, IHO III must then determine whether the parent's unilaterally obtained services delivered by BMI were, under the totality of the circumstances, appropriate to address the student's unique needs and, if so, whether equitable considerations warrant a reduction in the amount of relief requested by the parent. IHO III must also consider any defenses raised by the district. IHO III is further directed to reconsider the parent's request for compensatory education consistent with the discussion above.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that IHO II's interim decision on pendency dated March 5, 2025, is vacated; and
IT IS FURTHER ORDERED that IHO III's decision dated May 30, 2025, is modified by reversing those parts which found the parent was entitled to funding or reimbursement for five periods per week of SETSS at a rate not to exceed $195.00 per hour delivered by a provider of the parent's choosing for the 2024-25 school year; and
IT IS FURTHER ORDERED that IHO III's decision dated May 30, 2025 is modified by reversing those parts which ordered the district to fund and or reimburse two 30-minute sessions per week of individual speech-language therapy and two 30-minute sessions per week of individual OT at rates not to exceed $250.00 per hour, to be delivered by providers of the parent's choosing for the 2024-25 school year as a bank of hours of compensatory education to expire three years after the date of his decision; and
IT IS FURTHER ORDERED that the matter is remanded to IHO III for further proceedings in accordance with the body of this decision; and
IT IS FURTHER ORDERED that in the event that IHO III cannot preside over this matter upon remand, another IHO shall be appointed.
Dated: Albany, New York
June 30, 2026
Carol H. Hauge
STATE REVIEW OFFICER
Footnotes
[1] The hearing record contains duplicative exhibits (compare Parent Ex. B, with Dist. Ex. 8). For purposes of this decision, only parent exhibits are cited in instances where both a parent and district exhibit are identical in content. The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[2] 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]).
[3] 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.
[4] The hearing record does not indicate the date IHO II was appointed.
[5] 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]).
[6] 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.
[7] Additionally, recent decisions from federal district courts, addressing whether parents who parentally place their children in nonpublic schools may bring actions in federal court, have noted that "'[p]laintiffs were able to file a complaint through the two-tier administrative review process because New York law has gone above the floor set by the IDEA and extended that specific mechanism to private school students with IESPs'" (S.C., v. New York City Dep't of Educ., 2026 WL 947995, at *4 [S.D.N.Y. Apr. 8, 2026], citing Manos v. New York City Dep't of Educ., 2026 WL 587792, at *6 [S.D.N.Y. Mar. 3, 2026]).
[8] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[9] The district did not seek judicial review of these decisions.
[10] In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available at https://www.regents.nysed.gov/sites/regents/files/524p12d2revised.pdf). Ultimately, however, the proposed regulation was not adopted. In July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]); however enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[11] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points, of which the undersigned was aware, until policymakers began rulemaking activities in May 2024; however, as the number of allegations that the district's CSEs had not been convening and services were not being delivered began to mount, the district then began to respond with unsuccessful jurisdictional arguments to SROs, resulting in decisions which were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; however, a copy of the August 2024 rate dispute guidance is included in the administrative hearing record as an attachment to the district's motion to dismiss.
[12] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.
[13] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case was the unilaterally obtained SETSS (Educ. Law § 4404[1][c]).
[14] The Second Circuit has held that the appropriateness of the unilateral programming must be considered taking into account "the totality of the circumstances"(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[15] An award of compensatory education as relief in addition to an award of funding for unilaterally obtained services has been disfavored by SROs when the purpose of the award is to remediate gaps in the unilateral programming arranged for by the parent, especially absent specific evidence regarding any difficulties she encountered obtaining the services for which compensatory relief is sought (see generally Application of a Student with a Disability, Appeal No. 24-625; Application of the Dep't of Educ., Appeal No. 22-139). Here, IHO III awarded the parent a bank of OT and speech-language therapy for the "total hours included in the IESP…for the 2024-2025 school year" since the parent was unable to locate a provider for the services (IHO Decision at p. 6). As IHO III has not yet had the opportunity to consider the compensatory education in conjunction with the review of the unilaterally obtained services using the Burlington/Carter standard, IHO III may consider the compensatory education anew upon remand.
[16] According to the hearing record, IHO III did not preside over any aspect of the impartial hearing and rendered his decision based on the hearing record developed by IHO's I and II. Thus, IHO III may determine in his sound discretion that the hearing record was adequately developed to address the issues in this matter. However, IHO III is not precluded from considering whether to provide the parent an opportunity to present additional evidence regarding the student's programming and progress at her nonpublic school and a concomitant opportunity for the district to respond. Further, IHO III is not precluded from scheduling a prehearing conference with the parties to, among other things, simplify and clarify the issues left to be resolved (see 8 NYCRR 200.5[j][3][xi][a]).