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.  Petitioners (the parents) appeal, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO) determining their son'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 2022-23 school year.  The 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 this matter and the presumption that the parties are familiar with the facts and procedural history of the case, the student's educational history will not be discussed in detail.

Pertinent to this appeal, the CSE convened on March 28, 2023 and developed an IESP for the student with an implementation date of April 20, 2023 (Dist. Ex. 2).  The March 2023 CSE recommended that the student receive seven periods per week of direct group special education teacher support services (SETSS) in a separate location, four 30-minute sessions of individual speech-language therapy in a separate location at the provider's discretion, four 45-minute periods per week of individual occupational therapy (OT) in a separate location at the provider's discretion and three 30-minute sessions of individual physical therapy (PT) in a separate location at the provider's discretion (id. at p. 16).[1]

In a due process complaint notice, dated June 24, 2024, the parents alleged that the district failed to develop an appropriate program of services for the student for the 2022-23 school year (Parent Ex. A at pp. 5-9).  More specifically, the parents contended that the district failed to convene a CSE to develop an educational program for the student prior to the start of the 2022-23 school year, asserting that the CSE last convened on May 26, 2021 (id. at p. 5).  The parents also raised a number of allegations related to the March 2023 CSE meeting and resultant IEP (id. at pp. 5-8).  As part of those allegations, the parents noted that a prior IHO had determined that the student needed 40 hours per week of 1:1 special education itinerant teacher (SEIT) services at home and at school, as well as seven hours per week of enhanced 1:1 OT incorporating astronaut training and therapeutic listening, contending that the March 2023 CSE refused to consider those supports (id.at p. 6).[2]

Relevant to this appeal, the parents requested that the IHO issue an interim decision on pendency to compel the district to implement the services deemed necessary for the student based on an unappealed November 9, 2019 IHO decision (id. at p.8).  According to the parents, based on that decision, the student's program under pendency consisted of 40 hours per week of 1:1 SEIT services in a general location (at home or at school), seven hours per week of individual enhanced OT incorporating astronaut training and therapeutic listening (integrated listening system), two hours per week of parent counseling and training services, two hours per week of BCBA supervision, three 45-minute sessions per week of regular OT, three 45-minute sessions per week of PT, and four 30-minute sessions per week of individual speech-language therapy (id. at p. 8).

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 23, 2024 and continued on October 9, 2023 and October 16, 2023 (Tr. pp. 11-173).[3]

During the hearing, the district indicated that it was not objecting to the having the November 2019 IHO decision as the basis for the student's educational program during the pendency of this proceeding (Tr. pp. 25-26).[4]  Next, the parents' attorney proffered that the November 2019 IHO decision directed that the providers be paid at prevailing rates, up to $150 per hour for SEIT services and enhanced OT and stated her request that the rates be part of the student's pendency program (Tr. p. 27).

In an interim decision on pendency dated November 12, 2024, the IHO identified the student's educational program during the pendency of this proceeding (see Interim IHO Decision).  The interim decision provided that the student's pendency program was based on the unappealed November 9, 2019 IHO Decision, and further provided that the student's pendency program consisted of 40 hours per week of individual SEIT services, four 30-minute sessions per week of individual speech-language therapy, three 45-minute sessions per week of PT, seven hours per week of enhanced OT, two hours per week of parent counseling and training, and two hours per week of BCBA supervision (id.).  According to the decision, all services were to be provided on a 12-month basis (id.).  The decision further indicated that the district did not contest the pendency program and that it was retroactive to the date of filing of the due process complaint notice until the conclusion of the proceeding, unless modified by a subsequent order or agreement (id.).

IV. Appeal for State-Level Review

The parents appeal. The parents generally agree with the IHO's determination as to pendency, but allege that the IHO made some errors in the description of the program and in the exclusion of specific rates for the ordered services.  According to the parents, the IHO erred in ignoring the parties' agreement that pendency also included three 45-minute sessions per week of 1:1 "regular" OT, that the student's SEIT services should be provided in a general location (at home/at school), and that the student's "enhanced" OT services should incorporate astronaut training and therapeutic listening.  Additionally, according to the parents, the IHO should have directed that the student's pendency services be provided at prevailing rates, including the rate of up to $150 per hour for SEIT services and $150 per hour for enhanced OT, as that was specified in the November 2019 IHO decision regarding the 2018-19 school year.  The parents request that the IHO order the district to fund the student's pendency services during the pendency of this matter, retroactive to the filing of the due process complaint notice on June 24, 2024 at the provider's current rates and award compensatory services for any services the student should have received but did not receive during the pendency of this proceeding.

The district submits an answer to the parents' request for review, alleging that the parents are not aggrieved because the order on pendency incorporates the items missing from the IHO's decision by reference.  The district further contends that the pendency order correctly excludes rates and that this administrative proceeding is not the proper forum for the parties' rate dispute.

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]).[5] 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. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (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), and⁷ 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. Pendency

The parties agreed during the impartial hearing that the IHO decision dated November 9, 2019 is the basis for the student's services during the pendency of this proceeding (Tr. p. 26).  Consequently, neither party appeals from the IHO's interim order on pendency to that extent that it directs that the student's program during the pendency of this proceeding is based on the November 9, 2019 IHO decision . Accordingly, that portion of the IHO's decision has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).  Nevertheless, it is worth noting that the parents filed a due process complaint notice regarding a different school year on May 17, 2022, subsequent to the issuance of the November 2019 IHO Decision (Parent Ex. U ¶7).   As part of that proceeding, another IHO issued a decision on pendency awarding pendency based on the November 2019 IHO decision and specifying that pendency consisted of 40 hours per week of SEIT services, seven hours per week of enhanced OT, two hours per week of parent counseling and training, two hours per week of BCBA services, three 45-minute sessions per week of individual OT, three 45-minute sessions per week of individual PT, and four 30-minute sessions per week of individual speech-language therapy (Parent Ex. E).  That order did not identify either the location of the SEIT services or how the enhanced OT services were to be delivered (id.).  Nevertheless, the parents have not appealed from that order and there is no indication in the hearing record that the parents had difficulty implementing the student's pendency services under that order, which appears to be the subject of the parents' merits dispute in this proceeding related to the 2022-23 school year.

In this proceeding, similar to the December 2022 interim decision on pendency regarding the proceeding commenced with the filing of the May 17, 2022 due process complaint notice, the IHO did not identify either the location of the SEIT services or how the enhanced OT services were to be delivered (compare Interim IHO Decision, with Parent Ex. E).  However, the parents appeal from the interim decision in this matter asserting that the IHO should have used the exact language as contained within the November 2019 IHO decision, which specifically noted that the 40 hours per week of SEIT services were "to be provided in a general location (at home/at school)" and that the seven hours per week of enhanced OT services "incorporate[ed] Astronaut Training and Therapeutic Listening (Integrated Listening System)" (see Parent Ex. F at p. 4).  Therefore, the first issue for determination is whether the IHO erred in failing to include those specific provisions in the interim decision on pendency.

In making this determination, one must be cognizant of the fact that the IDEA's pendency provision only guarantees the student the right to remain in his "current educational placement," unless the state or local educational agency and the parents agree otherwise, until any dispute over his placement is resolved (see T.M., 752 F.3d at 170), and that the term "'educational placement' refers only to the general type of educational program in which the child is placed" (id. at 171, citing Concerned Parents, 629 F.2d at 753).

In seeking to include the location of SEIT services and a specialized form of enhanced OT services in the interim order on pendency, the parents appear to be forgetting that the pendency provision guarantees only the same general level and type of services that the disabled student was receiving (T.M., 752 F.3d at 171) and attempting instead to dictate the manner in which the student's educational program is implemented, without giving the district, or whoever ultimately provides the student's services, the opportunity to so implement the general program.  To the extent that the parent is attempting to direct the manner in which the district implements pendency, the Second Circuit has held that the district has "preexisting and independent authority to determine how to provide the most-recently-agreed-upon educational program" and it is up to the district and not the parent to decide how a student's pendency program is implemented, provided that the district does so in good faith (Ventura de Paulino, 959 F.3d at 534; see T.M., 752 F.3d at 171).

This issue is similar in concept to an issue that was addressed by the Second Circuit, where the Second Circuit overturned a decision which ordered the district to make numerous "minor alterations and additions" to the educational programs of disabled students who were transferred to other schools in the district due to a finding that a school closing constituted a change in educational placement (Concerned Parents, 629 F.2d at 755).  The Second Circuit determined that such an interpretation "would virtually cripple the [district's] ability to make even minor discretionary changes within the educational programs provided for its student's" and would not provide any "workable standard" for assessing whether a particular change would constitute a change in placement (id.).  Accordingly, the Second Circuit defined the term "educational placement" as referring "only to the general educational program in which [a student] is placed and not to all the various adjustments in that program that the educational agency, in the traditional exercise of its discretion, may determine to be necessary" (id. at p. 756).

In this instance, the parents' request that pendency include provisions specifying that the student's SEIT services must be provided in a general location, at home or at school, and that his enhanced OT services should incorporate astronaut training and therapeutic listening with an integrated listening system go beyond the "general" type of educational program in which the student is placed and, therefore, the IHO did not err by not including these specific details in the interim decision on pendency.  Additionally, it is worth noting that these specific details go more toward directing the manner in which the student's educational program might be implemented by the district.  To the extent that the parents have exercised a self-help remedy and have gone out and gotten the student services under pendency, the IHO's decision does not limit the manner in which the services are delivered to the student such that delivery of SEIT services at home and in school or the incorporation of astronaut training or therapeutic listening as part of the enhanced OT services would prevent the parents for recovering the cost of those services from the district.  However, although the parents request reimbursement "for any expenses incurred in maintaining [the student's] pendency services during the pendency of this matter," the hearing record did not address how services were delivered to the student during the pendency of this proceeding.

In contrast, to the above requests for changes to how the student's pendency services would be delivered, the parents also request that the IHO's interim decision be modified to reflect an error in that it did not include three 45-minute sessions per week of regular individual OT.  Review of the November 2019 IHO decision, on which pendency is based, shows that the IHO found the student was entitled to three 45-minute sessions per week of individual OT, in addition to the seven hours per week of enhanced OT (Parent Ex. F at p. 4).  Accordingly, the parents are correct and the IHO's decision on pendency shall be modified to reflect the additional three 45-minute sessions per week of individual OT services.

Turning to the parents' request that the pendency order be modified to include the provider's prevailing rates, pendency in the first instance is a matter of identifying "the general type of educational program in which the child is placed," and does not guarantee a particular provider or, by extension, a particular rate (Concerned Parents, 629 F.2d at 753, 756; see T.M., 752 F.3d at 171).  Review of the November 2019 IHO decision does not offer sufficient clarity regarding rates to find that the IHO erred in not awarding a specific rate for services as pendency in this matter.  In particular, the November 2019 IHO decision directed a specific educational program the student was entitled to receive during the 2018-19 school year (Parent Ex. F); however, the decision did not explicitly identify how that educational program was provided to the student during that school year or whether going forward it was expected that the district would implement services for the student or that the parent took on responsibility for arranging for services on her own, as a form of self-help (id.).  With respect to rates for services, the IHO decision merely stated that "[p]roviders . . . [we]re to be paid for all services provided in pendency at prevailing rates (including at a rate of up to $150 per hour for SEIT and at a rate of up to $150 per hour for enhanced OT services)" (id. at p. 4).

Additionally, as noted above, the hearing record in this matter does not indicate how services were delivered to the student during the pendency of this proceeding.  To include a rate  for services would go beyond describing the educational program the student is entitled to as pendency during this proceeding and would venture more into delineating the contours of a self-help remedy for missed pendency services, which is not the purview of an appeal of an interim decision on pendency.  The parents must await the final decision regarding rates or seek enforcement through the courts.  If the district delays in meeting its agreed upon pendency obligations, the parents are entitled to seek enforcement in a court of competent jurisdiction (see M.F. v. New York City Dep't of Educ., 2024 WL 729208, at *2 [S.D.N.Y. Feb. 22, 2024]).

As for implementation of the interim decision on pendency, "[i]t is up to the school district to decide how to provide that educational program, at least as long as the decision is made in good faith" (T.M., 752 F.3d at 171, citing Concerned Parents, 629 F.2d at 756).  It is therefore the district's responsibility to implement the pendency program.  As the IHO's decision did not indicate that the district is required to implement the student's pendency services, the undersigned will direct that the school district implement the student's pendency services for the entire pendency period, retroactive to the date of the filing of the due process complaint notice.

As a final note, in this matter the parents have alleged in their due process complaint notice that the district has not implemented the student's educational programming for the 2022-23 school year; accordingly, if the parents' allegations are true, there would be reason for the parents to question whether the district could follow through on its obligation to deliver the same services through pendency.  However, in the event that happens, the parent may seek compensatory education for any services missed during the pendency of this proceeding, as they are doing in this proceeding with respect to the 2022-23 school year.  The Second Circuit has held that where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy (E. Lyme, 790 F.3d at 456 [directing full reimbursement for unimplemented pendency services awarded because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"]; see Student X, 2008 WL 4890440, at *25, *26 [ordering services that the district failed to implement under pendency awarded as compensatory education services where district "disregarded the 'automatic injunction' and 'absolute rule in favor of the status quo' mandated by the [IDEA] and wrongfully terminated [the student's] at-home services"] [internal citations omitted]).

VII. Conclusion

As discussed above, the IHO's interim decision will be amended to reflect that in addition to the services already included as part of the student's pendency program, the student's education program during the pendency of this proceeding also includes three 45-minute sessions per week of individual OT on a 12-month basis.  Additionally, the district is responsible for implementation of all services during the pendency of this proceeding.

I have considered the parties' remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the interim IHO decision, dated November 12, 2024, is modified to include three 45-minute sessions per week of individual OT on a 12-month basis; and

IT IS FURTHER ORDERED that the district shall provide the student with the identified pendency services throughout the pendency of this matter until its conclusion, unless modified further by agreement or order, retroactive to the filing of the due process complaint notice.