STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-424
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:
Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Nicole Daley, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from interim decisions of impartial hearing officers (IHOs) relating to her daughter's pendency placement during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student for the 2024-25 school year. The district cross-appeals, identifying a different basis for the student's pendency placement. The appeal must be sustained in part. The cross-appeal must be sustained in part.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
Given the procedural posture of the matter, the evidence regarding the student's educational history is limited.
According to the parent, a CSE convened on or about October 31, 2022, determined the student was eligible for special education as a student with an other health impairment, and developed an IESP for the student which recommended that the student receive seven periods per week of group special education teacher support services (SETSS) in Yiddish, two 30-minute sessions per week of individual counseling in Yiddish, two 30-minute sessions per week of occupational therapy (OT), and full-time paraprofessional services (Due Process Compl. Not. at pp. 1, 2). The parent filed a due process complaint notice on December 17, 2024, alleging that the October 2022 IESP was "outdated and expired" and that the district denied the student a FAPE for the 2024-25 school year by failing to convene a CSE to develop the student's IESP (id. at pp. 2-3). The parent further alleged that the district failed to implement the student's October 2022 IESP during the 2024-25 school year (id. at p. 3). The parent invoked pendency, asserting that the student's stay put placement lay in an unappealed IHO decision dated February 13, 2023, and consisted of SETSS, counseling, OT, and paraprofessional services for the student (id. at pp. 2, 5-7). For relief, the parent requested that the district be required to fund the programming set forth in the October 2022 IESP for the 2024-25 school year at the rates charged by private providers (id. at p. 3). The parent also sought compensatory education to make up for any services not delivered (id.).
In a due process response, the district generally denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and attached a supplemental notice that contained information pertaining to the October 2022 IESP (Dist. Response to Due Proc. Compl. Not.).
An IHO from the Office of Administrative Trials and Hearings (OATH) was initially appointed to hear the matter (IHO I). The parent submitted a brief, dated February 6, 2025, with an exhibit, on the issue of the student's stay put placement (Parent Pendency Brief). On April 30, 2025, IHO I issued an interim decision on pendency, determining that the student's stay put placement consisted of the services awarded in the February 13, 2023 unappealed IHO decision (Apr. 30, 2025 Interim IHO Decision at p. 1). Specifically, IHO I ordered services consisting of seven periods per week of SETSS, two 30-minute sessions per week of individual counseling, and two 30-minute sessions per week of individual OT (id.). The parent objected to the omission of paraprofessional services from IHO I's order but was directed to address any pendency issues with a new IHO (Req. for Rev. at p. 2; SRO Ex. A).[1]
A new IHO from OATH was assigned to the matter (IHO II). It appears that the matter was scheduled for a hearing date on May 29, 2025, but, that morning, parent's counsel informed IHO II that the parent's witness would not be available and, as parent's counsel "underst[oo]d that IHO II would "not consider any adjournment request," he requested to withdraw the parent's due process complaint notice without prejudice (May 29, 2025 Request for Withdrawal). Before such withdrawal, however, parent's counsel requested that IHO II correct the pendency order to include the paraprofessional services (id.).
In an email, dated May 29, 2025, IHO II found that the parent's pendency request was inappropriate because the parent's claims in the due process complaint notice were raised under New York Education Law §§3602-c and 4404, and not the IDEA (May 29, 2025 Interim IHO Decision). According to IHO II, the stay-put provisions of the IDEA do not extend to Education Law §3602-c (id.). Because the only issues in the case were the appropriateness of the unilaterally-obtained services and the reasonableness of the rate requested, IHO II found that the parent's "request for pendency [wa]s inappropriate and must be denied" (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that IHO II erred in determining that the student was not entitled to pendency services due to her IESP. The parent argues that students enrolled in a private school enjoy the same entitlement to pendency services as those enrolled in public schools. The parent also objects to IHO I's April 30, 2025 interim decision for failing to include paraprofessional services. For relief, the parent seeks an order establishing the unappealed IHO decision dated February 13, 2023 as the basis for the student's pendency program, and awarding pendency services consisting of seven periods per week of group SETSS, two 30-minute sessions per week of individual counseling, two 30-minute sessions per week of individual OT, and full-time paraprofessional services. Along with her request for review, the parent submits two documents and requests that they be considered on appeal.
By answer and cross-appeal, the district argues that the unappealed IHO decision dated February 13, 2023 was superseded by a subsequent unappealed IHO decision dated November 1, 2024. Because the November 1, 2024 decision is later in time, the district argues that it constitutes the student's last-agreed-upon placement for pendency purposes. Further, the district notes that, even if the February 13, 2023 decision formed the basis for pendency, it did not award funding for private OT or counseling services. Therefore, the district asserts that IHO I should not have awarded either service. Along with its answer and cross-appeal, the district submits copies of the two prior IHO decisions.
V. Applicable Standards
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 Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[2] 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 (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
VI. Discussion
A. Additional Evidence
Both parties have submitted additional evidence in the form of proposed exhibits and request that they be considered on appeal. Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).
Except for those documents already included in the hearing record (compare SRO Ex. 2, with May 29, 2025 Interim IHO Decision; compare SRO Ex. A, with Parent Pendency Brief at pp. 6-19), the additional evidence submitted by the parties either should have been included in the hearing record and/or is necessary to render a decision.[3] With respect to the November 2024 IHO decision offered by the district (SRO Ex. B), as the matter did not proceed to an impartial hearing, it is unclear whether or not the district had that opportunity to submit the document to the IHOs. Moreover, as to whether the additional evidence was available or could have been offered at the time of the impartial hearing, I note that the requirement serves to encourage full development of an adequate hearing record at the first tier to enable the IHO to make a correct and well supported determination and to prevent the party submitting the additional evidence from withholding relevant evidence during the impartial hearing, thereby shielding the additional evidence from cross-examination and later springing it on the opposing party, effectively distorting the State-level administrative review and transforming it into a trial de novo (see M.B. v. New York City Dep't of Educ., 2015 WL 6472824, at *2-*3 [S.D.N.Y. Oct. 27, 2015]; A.W. v. Bd. of Educ. of the Wallkill Cent. Sch. Dist., 2015 WL 1579186, at *2-*4 [N.D.N.Y. Apr. 9, 2015]). That factor is of less weight in this instance, where both parties were also parties to the prior matter resulting in the decision offered by the district as additional evidence (see SRO Ex. B). Furthermore, as noted herein, both federal and State regulations authorize SROs to seek additional evidence if necessary, and SROs have accepted evidence available at the time of the impartial hearing when necessary (34 CFR 300.514[b][2][iii]; 8 NYCRR 279.10[b]; see, e.g., E.T. v. Bureau of Special Educ. Appeals, 2016 WL 1048863, at *12-*13 [D. Mass. Mar. 11, 2016] [considering additional evidence regarding a purported settlement agreement not accepted by the IHO]; Application of a Student with a Disability, Appeal No. 08-030; Application of a Child with a Disability, Appeal No. 00-019 [finding it necessary to accept evidence available at the time of the impartial hearing to determine the student's pendency placement]).
Given that the basis of the student's pendency program is directly at issue in this matter, I will consider the November 2024 unappealed IHO decision offered by the district.
B. Pendency
With respect to IHO II's ruling that pendency is not available to dually enrolled students receiving special education pursuant to Education Law § 3602-c, this position has been examined in prior decisions and found to lack merit (see, e.g.,Application of a Student with a Disability, Appeal No. 25-296 [finding the IHO's jurisdictional reasoning to be without merit, where the IHO improperly found that she lacked subject matter jurisdiction over claims under Education Law §3602-c, and consequently found that she did not have authority to issue findings on pendency] Application of a Student with a Disability, Appeal No. 25-035 [rejecting "the district's argument that the student [wa]s not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c"]; Application of a Student with a Disability, Appeal No. 24-579 [rejecting the district's argument "that the student was not entitled to pendency services because the IHO . . . lacked subject matter jurisdiction to order the district to maintain the student's pendency services"]). For the same reasons, IHO II's blanket denial of pendency for the student was error.
As for identifying the student's pendency placement there are two unappealed IHO decisions relating to the student, one dated February 13, 2023, and one dated November 1, 2024 (see Parent Pendency Brief at pp. 6-19; SRO Ex. B). The February 13, 2023 IHO decision related to a due process complaint notice filed on or about November 28, 2022, alleging a denial of FAPE for the 2021-22 school year, and awarded relief in the form of district funding of private paraprofessional services and 280 periods of compensatory SETSS (Parent Pendency Brief at pp. 8, 12). The November 1, 2024 decision concerns a due process complaint notice filed on or about July 15, 2024, alleging a denial of FAPE for the 2023-24 school year, and awarded district funding of private SETSS and paraprofessional services from providers of the parent's choosing (SRO Ex. B at pp. 3, 8). Given that the November 1, 2024 decision was the most recent unappealed decision concerning this student at the time of the parent's December 2024 due process complaint notice in the present matter, it forms the basis of the student's stay put placement during the pendency of this matter.
As the district argues, neither of the unappealed IHO decisions award counseling or OT services (see Parent Pendency Brief at p. 12; SRO Ex. B at p. 8). The reasons for such are not clear from the decisions, accordingly, I decline to opine on the matter. The parent voluntarily withdrew her due process complaint notice in this matter and, therefore, there is no open hearing in the present matter, in which the question can be further explored. If the parent has re-filed or does re-file her complaint alleging a denial of a FAPE to the student for the 2024-25 school year, she should inform the assigned IHO of this decision and pursue any remaining issues pertaining to pendency before such IHO.
VII. Conclusion
Having determined that IHO II erred in denying the parent's pendency request, and that the unappealed IHO decision dated November 1, 2024 forms the basis of the student's pendency services, the necessary inquiry is at an end.
I have considered the parties' remaining contentions and find them unnecessary to resolve given my above determinations.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that IHO I's and IHO II's interim decisions regarding pendency dated April 30, 2025, and May 29, 2025, respectively, are vacated; and
IT IS FURTHER ORDERED that the student's pendency placement is based on the unappealed IHO decision dated November 1, 2024, and consists of district funding of SETSS and paraprofessional services from providers of the parent's choosing.
Footnotes
[1] As discussed below, some of the documents submitted by the parties as additional evidence have been accepted for consideration on appeal; they are cited herein as "SRO Exhibits."
[2] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[3] State regulation requires, among other things, that the hearing record include "all briefs, arguments or written requests for an order filed by the parties for consideration by the impartial hearing officer" and "all written orders, rulings or decisions issued in the case including an order granting or denying a party's request for an order" (see 8 NYCRR 200.5[j][5][vi][b]-[c]).