STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-192
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: Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Charlotte E. Miller, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for her daughter's private services delivered by Always a Step Ahead Inc. (Step Ahead) for the 2025-26 school year. The appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
For the 2023-24 school year, the student was in third grade and parentally placed at a nonpublic school (Parent Ex. B at pp. 1, 12). On December 6, 2023, a CSE convened, found the student eligible for special education as a student with a learning disability, and developed an IESP for the student with a projected implementation date of December 20, 2023 (see Parent Ex. B).[1], [2] The December 2023 CSE recommended five periods per week of group special education teacher support services (SETSS) as well as one 30-minute session per week of individual counseling services (id. at pp. 9-10).
In an email dated May 2, 2025, the district confirmed receipt of the parent's written notice, which requested special education services for the student for the 2025-26 school year (fifth grade) (Parent Ex. C).
By letter to the parent dated August 12, 2025, the district indicated that it would provide the student's IESP services during the 2025-26 school year and named the "certified special education teacher" who it assigned to deliver SETSS to the student (Dist. Ex. 6 at p. 1). The letter further provided that, if the parent chose not to accept the services from the assigned special education teacher and did not use the "SETSS voucher" provided to select another provider, the student could instead receive the services at a district public school "afterschool/weekend site" (id.).
On August 17, 2025, the parent signed an agreement with Step Ahead for the provision of five hours per week of SETSS and one 30-minute session per week of counseling services for the 2025-26 school year (see Parent Ex. D).[3]
In another letter to the parent, dated August 19, 2025, the district identified an agency that would deliver the student's counseling services for the 2025-26 school year (see Dist. Ex. 7). In addition, the letter stated that, if the parent chose not to accept the services from the identified agency, the student could instead receive counseling at a district public school "afterschool/weekend site" (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated September 2, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year (see generally Parent Ex. A). The parent stated that the December 2023 IESP was the last developed IESP for the student and was "sufficient and adequate" for the student for the 2025-26 school year (id. at p. 1). Further, the parent alleged that the district failed to assign the student with "any providers" to deliver her services, thereby requiring the parent to locate providers (id.). As relief, the parent requested that the district be required to fund the unilaterally obtained services at the providers' rates (id. at p. 2). Lastly, the parent requested compensatory relief for those services not provided to the student (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 provided a supplemental notice that contained a summary of the December 2023 IESP (see Dist. Response to Due Process Compl. Not.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 3, 2025 and concluded on December 4, 2025 after two days of proceedings (Tr. pp. 1-59). In a decision dated January 3, 2026, the IHO found that the district offered the student a FAPE for the 2025-26 school year and denied the parent's requested relief (IHO Decision at pp. 2-4).
The IHO found that the district "fulfilled [its] duty" and offered services to the student by providing "assignment letters" to the parent with the name of the SETSS provider and the name of the agency for counseling (IHO Decision at p. 3). Based upon the parent's testimony that she did not contact the assigned SETSS provider and instead chose to continue with the student's previous SETSS provider and secured private counseling services for the student, the IHO concluded that the parent was not interested in working with providers assigned by the district (id. at pp. 3-4). The IHO noted that the district could not "force" the parent to use the district providers (id. at p. 4). In finding that the district offered the student a FAPE for the 2025-26 school year, the IHO dismissed the due process complaint notice with prejudice (id. at pp. 4-5).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2025-26 school year and denied the parent's requested relief. In particular, the parent argues that the IHO incorrectly found that the district's letters assigning providers without testimony of a witness were sufficient to support a finding that the district implemented the IESP. The parent also argues that the district failed to ensure the availability of the assigned providers and failed to offer evidence that the assigned providers could implement the IESP. Further, the parent argues that the IHO shifted the burden to the parent to contact the district's assigned providers. Lastly, the parent argues that the IHO erred in failing to award pendency. As relief, the parent requests funding of the unilaterally obtained SETSS and counseling services at the providers' rates for the 2025-26 school year.
In an answer, the district generally denies the material allegations contained in the request for review and argues that the IHO's decision should be upheld.[4] Specifically, the district contends that the parent's argument that it did not establish the availability of the providers is speculative. In the alternative, the district argues that the parent did not meet her burden to prove the appropriateness of services delivered by Step Ahead and that equitable considerations do not weigh in favor of the parent's requested relief. The further district argues that the student is not entitled to pendency as the parent rejected pendency by unilaterally obtaining services for the student.
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. Implementation/Assigned Providers
It is the district's responsibility to ensure that services are delivered, whether in accordance with an IESP, an individualized education program (IEP), or pursuant to the stay put rule (Educ. Law § 3602-c[2][a], [7][a]-[b] [providing that "[b]oards 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" and that the cost for services is recoverable from the district of residence, either directly with the consent of the parent for a district of location to share information or through the Commissioner of Education and the State Comptroller]; In re Pelose, 66 A.D.3d 1342, 1343 [4th Dep't 2009] [noting that the "statute places the relevant mandates on the public school district in which the nonpublic school is located to provide services to students attending the nonpublic school"]; see 20 U.S.C. § 1414[d][2][A]–[C] [explaining when IEPs must be put into effect]).[7] When determining how to implement a student's IEP or IESP, the assignment of a particular school or provider is an administrative decision, provided it is made in conformance with the CSE's educational placement recommendation (see M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244-45 [2d Cir. 2015]; K.L.A. v. Windham Southeast Supervisory Union, 371 Fed. App'x 151, 154 [2d Cir. Mar. 30, 2010]; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]; White v. Ascension Parish Sch. Bd., 343 F.3d 373, 379 [5th Cir. 2003]; see Veazey v. Ascension Parish Sch. Bd., 121 Fed. App'x 552, 555 [5th Cir. Jan. 5, 2005]; A.W. v. Fairfax Co. Sch. Bd., 372 F.3d 674, 682 [4th Cir. 2004]; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 756 [2d Cir. 1980]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]; see also Placements, 71 Fed. Reg. 46588 [Aug. 14, 2006]).
Here, the parent does not allege any procedural or program design claims with respect to the December 2023 IESP and there is no dispute that the student was entitled to receive the services set forth therein, including five periods per week of group SETSS and one 30-minute session per week of individual counseling services, for the 2025-26 school year. In fact, in the due process complaint notice, the parent specifically stated that the December 2023 IESP was the last program developed by the district and the IESP addressed the student's academic and social/emotional needs, enabled the student to receive meaningful education benefits, and was appropriate for the 2025-26 school year (see Tr. pp. 47-48; Parent Ex. A at p. 1). The parent alleged only the district's failure to implement services for the 2025-26 school year (Tr. pp. 47-48; Parent Ex. A at p. 2). Further, the district acknowledged that the student was entitled to the services in the December 2023 IESP for the 2025-26 school year (Tr. p. 10).
Prior to the start of the 2025-26 school year, in letters dated August 12 and August 19, 2025, respectively, the district provided the name, email, and telephone number of a certified special education teacher assigned to provide the student with SETSS and the name, email address, and phone number of the provider agency assigned to deliver counseling services to the student (Dist. Exs. 6 at p. 1; 7 at p. 1). Both letters provided the parent with additional options to pursue should she decide not to access the services from the named provider or agency (Dist. Exs. 6 at p. 1; 7 at p. 1). According to entries in the district's events log, the letters were sent to the parent via email on August 14, 2025 and August 19, 2025, respectively (Dist. Exs. 6 at p. 2; 7 at p. 2).
During the impartial hearing, the parent indicated that she did not reach out to the district to identify a provider for the student (Tr. p. 35). The parent testified that she "th[ought] [she] received an email for a provider" to deliver the student's services from the district but later stated that she thought that notice was related to "the SETSS" and that "nobody reached out" regarding a provider for counseling services (Tr. pp. 35, 37).[8], [9] In addition, the parent admitted that she did not directly speak with the SETSS provider assigned by the district but did "look[] into her" and determined she was not "the fit for [her] daughter" (Tr. pp. 35-37).[10], [11]
Instead, the parent testified that she located a SETSS provider by reaching out to her community about providers who were available and asking the provider if she could "come to the school" her daughter attended and "work with the agency . . . that's in the school" and with which the parent had worked for "three years" (Tr. pp. 35, 38-39).[12] For counseling, the parent used the same provider who delivered the student's services the prior school year, who was originally found "[t]hrough the community" and who was "working at the [student's nonpublic] school" (Tr. pp. 35, 38). The parent testified that she did not notify the district that she was not accepting the assigned SETSS provider (Tr. p. 37).
The IHO considered the foregoing and accorded more weight to the district's evidence that it sent notice to the parent identifying the SETSS and counseling providers and "did all it could do within reason to provide the Student with services" (see IHO Decision at pp. 3-4). Even if the parent's testimony that she did not receive the notice of the counseling provider was sufficient to overcome the district's evidence, as the IHO found, it was "clear" the parent was "not interested in working with other Providers and wanted [her daughter] to stay with the Provider Agency [she] had been working with for the past three years" (id. at p. 4). There is insufficient basis in the hearing record to disturb the IHO's finding in this regard (see Ambrister v. Banks, 2025 WL 2775936, at *2 [2d Cir. Sept. 30, 2025] [finding no suggestion that the parent would have altered her placement decision had she received earlier notice of a public school location given her previous rejection of the school for the same school year and her overall position that no public school would be appropriate]; Rosenberger v. Banks, 2025 WL 2773299, at *4 [S.D.N.Y. Sept. 29, 2025] [finding such a procedural violation did not amount to a denial of a FAPE where the evidence did not indicate that the parent "had any intent at all to visit or investigate the placement location" and that it seems "inconsequential" to the parent what the school placement was]).
Next, in arguing that the district did not meet its obligation, the parent asserts that the district's provider assignment letters were inadequate because the district failed to establish the providers "were ready, willing, and able to deliver mandated services."
Initially, the parent made no factual allegations that the assigned providers had been unable to deliver the student's services as, in the due process complaint notice, the parent only broadly asserted that the district failed to implement the mandated services (Parent Ex. A at p. 2). The parent made no mention of the district's assigned providers at all, essentially ignoring them (id. at pp. 1-2). Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056). Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).
Even if the parent's due process complaint notice could be read to raise an issue with regard to the providers' ability to implement the IESP, the allegation is without merit. The district asserts that the parent's argument that it failed to demonstrate the providers' availability is similar to arguing that the district "failed to prove[] available space in a school when it sends a school location letter" (Answer ¶ 23). The district is correct that the parent's argument in this regard parallels caselaw that has arisen under the IDEA pertaining to an assigned public school site's capacity to implement an IEP.[13] The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). A district's assignment of a student to a particular public school site (or, as in this case, to particular providers) must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP or IESP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014] [holding that while parents are entitled to participate in the decision-making process with regard to the type of educational placement their child will attend, the IDEA does not confer rights on parents with regard to the selection of a school site]). The Second Circuit has held that claims regarding an assigned school's ability to implement an IEP may not be speculative when they consist of "prospective challenges to [the assigned school's] capacity to provide the services mandated by the IEP" (M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015]). Such challenges must be "tethered" to actual mandates in the student's IEP (see Y.F., 659 Fed. App'x at 5). Additionally, the Second Circuit indicated that such challenges are only appropriate, if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so (M.O., 793 F.3d at 244). In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP or, as here, the IESP (see Z.C. v. New York City Dep't of Educ., 222 F.Supp.3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016]). Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate (K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016]).
The parent's allegation that the providers may not have had availability to deliver the student's services is wholly based on speculation as it has no factual basis.
Based on the foregoing, the district met its obligation under the law to offer an appropriate plan of services and to notify the parent how and from whom to access those services. The parent was free to refuse the services but, having done so, the district may not be held liable for the lack of delivery. Accordingly, I find no basis to reverse the IHO's finding that the district met its burden to prove that it offered the student equitable services for the 2025-26 school year.
B. Pendency
The parent asserts that the IHO erred in failing to address pendency while the district argues that the student is not entitled to pendency because the parent rejected pendency when she unilaterally obtained services for the student. Although the parent requested a pendency hearing in her due process complaint notice, the IHO did not address pendency during the impartial hearing or in her decision (see IHO Decision; Tr. pp. 1-59; see also Parent Ex. A).
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (T.M., 752 F.3d at 170-71; Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
There is no genuine dispute between the parties that the student's pendency placement would have been based on the December 2023 IESP. However, the district argues that, because the parent acted unilaterally in arranging for private services, she rejected pendency. As noted in the parent's due process complaint notice, she made unilateral arrangements to obtain services from a private provider for the student (see Parent Ex. A). The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]). The Court described that:
[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis.To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.
(id. at 534).
In short, the parent's decision to unilaterally obtain private services constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]). The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parent had not been found appropriate in any administrative proceeding.
Based on the foregoing, I find that the student is not entitled to pendency.
VII. Conclusion
As the district met its burden to establish that it offered the student a FAPE for the 2025-26 school year, I need not reach the issues of whether the unilaterally obtained services were appropriate for the student or whether equitable considerations supported the parent's request for relief, and the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134).
THE APPEAL IS DISMISSED.
Dated: Albany, New York
June 30, 2026
Sarah L. Harrington
STATE REVIEW OFFICER
Footnotes
[1] The hearing record contains duplicate copies of the December 6, 2023 IESP (compare Parent Ex. B, with Dist. Ex. 5). For ease of reference, this decision will cite to the parent's exhibit.
[2] 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]).
[3] Step Ahead has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The district also argues that the parent's verified request for review should be rejected for failing to comply with the practice regulations. I have reviewed the verified request for review, and I decline to reject it on the grounds stated by the district.
[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] With regard to the implementation of a student's IEP, a denial of a FAPE occurs if there was more than a de minimis failure to implement all elements of the IEP, and instead, the school district failed to implement substantial or significant provisions of the IEP (Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]).
[8] In the context of discussing communications from Step Ahead, the parent testified about her approach to receiving emails (Tr. p. 39). In particular, the parent described that she does "everything through email" and usually reviews "the top of the email" to "verify it," and, if the message is from a "familiar name," she would "keep on going," whereas, if she was "not familiar with it," then she would not read on (id.).
[9] The email address identified by the district in its events log entry regarding the counseling provider matched the email address used by the parent in other communications in the hearing record (compare Dist. Ex. 7 at p. 2, with Parent Exs. C; D at p. 1).
[10] The parent could not recall the reasons why she felt the provider was not a good fit (Tr. p. 37).
[11] A member of the Step Ahead quality assurance team stated in her affidavit testimony that the agency "use[d] its best efforts to confirm that no [district] appropriate provider for any services that [we]re covered by the [a]greement were offered to the parent before the start of services" (Parent Ex. F at p. 2). These efforts included "checking with the parent if they were notified by the [district] of any providers being available prior to the beginning of the school year or anytime thereafter" (id.). In this regard, Step Ahead—a private, parent‑contracted entity—appears to have positioned itself in a role more akin to a self‑interested intermediary rather than an objective third-party provider of private instruction, effectively interposing its own financial interests between the parent and the district; however, both State law and IDEA contemplate that it is parents, not third‑party vendors, who participate in decision‑making and who may seek relief through due process.
[12] The parent could not recall the name of the agency but identified the first name of the director (Tr. pp. 38-39).
[13] In cases involving whether the district waived the June 1 deadline, other SROs have held that authorization forms or vouchers provided to the parent to obtain special education services "demonstrate[d] the district's effort to ensure implementation of the student's SETSS" (see Application of a Student with a Disability, Appeal No. 25-320; Application of a Student with a Disability, Appeal No. 24-392).