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, among other things, denied in part her request that respondent (the district) pay Upgrade Resources LLC ("Upgrade") for private special education services delivered to her son for the 2023-24 school year.  The district cross-appeals that potion of the IHO decision that ordered compensatory education and reimbursement relief for the 2023-24 school year.  The appeal must be dismissed.  The cross-appeal must be sustained in part.  The matter is remanded to the IHO for further proceedings.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational 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

The student has a diagnosis of spina bifida and has been found eligible for special education as a student with an orthopedic impairment (Parent Exs. B at p. 1; L at ¶ 17).[1]  When the student was in fourth grade, a CSE convened on December 11, 2020 and created an IESP for the student with a projected implementation date of December 29, 2020 (Parent Ex. B at pp. 1-2).[2]  The December 2020 CSE recommended that the student receive 15 periods per week of group special education teacher support services (SETSS), three 30-minute sessions per week of individual speech-language therapy, three 45-minute sessions per week of individual occupational therapy (OT), five 45-minute sessions per week of individual physical therapy (PT), and an individual, full-time health paraprofessional for health and ambulation (id. at pp. 1, 6-7).[3]  The December 2020 CSE noted that the student's mother "was not able to find providers for OT and PT services for [the student]" (id. at p. 2).

The parent filed a due process complaint notice related to the 2021-22 school year and, in a January 18, 2022 decision (2022 decision), the IHO in that proceeding ordered the district to "fund 15 hours of SETSS per week . . . for the entirety of the 2021-2022 school year," paid to the student's then-current "SETSS provider, Yes I Can Services, or any qualified substitute SETSS provider," and fund 90 hours of compensatory individual OT services and 150 hours of compensatory individual PT (Parent Ex. C at pp. 7-8).[4]

On March 3, 2022, a CSE convened to review and revise the student's IESP and recommended that the student receive: 10 periods per week of group SETSS, two 30-minute sessions per week of group counseling services, three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual PT, two 30-minute sessions per week of individual OT; and an individual, full-time paraprofessional for health and ambulation (Parent Ex. E at pp. 1, 9-10).[5]  The March 2022 IESP noted the "[c]lassroom teacher report[ed] that for most subjects, [the student] [wa]s taken out by the SETSS provider" and that the student "ha[d] a hard time with the other students, as he d[id] things that may bother the other boys" (id. at p. 1).  As with the prior IESP, the March 2022 IESP documented that the student's parent "was not able to find providers for OT and PT services" and was "still looking for related service providers" (id. at p. 3).  The March 2022 IESP indicated that "[w]ith the provision of SETSS, Speech, Counseling, OT, and PT," the student would be "able to participate in the general education curriculum" (id. at p. 4).

In a letter on district letterhead signed by the parent on May 10, 2023, the parent notified the district that she was parentally placing the student in a nonpublic school and was requesting that special education services continue to be provided to the student for the 2023-24 school year (Parent Ex. F at p. 2).

On July 6, 2023, a CSE convened to review and revise the student's IESP (Dist. Ex. 2 at p. 1).[6]  The July 2023 CSE continued to recommended the programming set forth in the March 2022 IESP including: 10 periods per week of group SETSS; two 30-minute sessions per week of group counseling services; three 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual PT; two 30-minute sessions per week of individual OT; and an individual, full-time paraprofessional for health and ambulation (compare Dist. Ex. 2 at pp. 1, 7-8, with Parent Ex. E at pp. 9-10).[7]

On August 31, 2023, the parent signed a contract with Upgrade for the provision of special education services for the 2023-24 school year (see Parent Ex. G).  The contract specified a fee structure for the following services at the following rates: SETSS at the rate of $195 per hour; speech-language therapy at the rate of $300 per hour; OT at the rate of $300 per hour; PT at the rate of $300 per hour; counseling at the rate of $300 per hour; and paraprofessional services at the rate of $85 per hour (id. at pp. 1-2).  The contract stated that "[p]arent confirm[ed] that an IEP/IESP Program (the 'Program') was developed by [the district] for the [s]tudent," that the district did not offer any "suitable providers," and that the parent requested that Upgrade implement the IESP services (id. at p. 1).  Upgrade provided the student with 10 hours per week of SETSS, paraprofessional services, three 30-minute sessions per week of speech-language therapy, and either two 30-minute sessions or three 45-minute sessions per week of OT for the 2023-24 school year (see Parent Exs. I, J, K, L ¶ 12; M ¶ 10).[8]  According to the parent, the student did not receive any PT services during the 2023-24 school year (Parent Ex. M ¶ 15).

By letter dated September 11, 2023, the parent, through her attorney, provided the district with a written notice of her rejection of the district's March 2022 IESP recommendations and her intention to provide the student "with the prior recommended services" and to seek reimbursement or direct payment from the district for the student's special education program and related services (see Parent Ex. D).

A. Due Process Complaint Notice

In a due process complaint notice dated September 11, 2023, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  The parent asserted that the student's pendency placement was established in the 2022 decision, which ordered the student's services pursuant to the December 2020 IESP (id. at p. 2).  The parent alleged that the March 2022 IESP was not appropriate for the student based on the CSE's recommendation of a reduced number of hours of SETSS and related services (id.).  The parent asserted that she was also "concerned regarding the delay in convening a new IEP meeting to recommend FAPE or services" and argued that "[t]he most recent IESP was never agreed-to or implemented," and was then "outdated and expired" (id.).  Regarding services awarded by the 2022 decision, the parent alleged that the district had "failed to implement the program that [the student] [wa]s entitled to under pendency" and the parent had been "unable to locate a provider" (id. at p. 3).  The parent requested funding for "the recommendations on the [2022 decision] . . . at a reasonable market rate for the 2023-24 school year" along with an award of compensatory education for missed services (id. at pp. 3-4).

B. Impartial Hearing Officer Decision

An impartial hearing convened on May 31, 2024 and concluded on October 28, 2024 after six days of proceedings inclusive of prehearing/status conferences (Tr. pp. 1-72).[9]  In a decision dated November 27, 2024, the IHO found that the district failed to establish that it provided the student with a FAPE for the 2023-24 school year and that the student was entitled to a bank of 200 hours of SETSS and 120 hours of PT "at reasonable and customary rates" as compensatory education to make up for unimplemented SETSS and PT services (IHO Decision at pp. 2-3).  The IHO also ordered the district to "reimburse the parents for all speech therapy, occupational therapy, and paraprofessional services that were paid for during the 2023-2024 school year" (id. at p. 3).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in failing to address the student's right to pendency.  The parent asserts that the student is entitled to the services set forth in the December 2020 IESP as pendency "at the Provider's contracted rates."  The parent also asserts that the IHO erred in failing to order direct funding of the 10 periods of SETSS that the parent obtained for the student for the 2023-24 school year.  Finally, the parent argues that the IHO erred in ordering reimbursement, rather than direct funding, for the related services delivered to the student "despite the fact that the Provider directly funded the services."

In an answer and cross-appeal, the district argues that the parent's request for pendency for the student should be denied because the parent "abandoned" her pendency request by not pursuing it during the impartial hearing.  In the alternative, the district alleges that the student's pendency placement lay in the 2022 decision, which did not order all of the services set forth in the December 2020 IESP.  Further, the district asserts that, because the parent unilaterally changed the provider delivering the student's services, she cannot recover the costs of services from the district under a pendency argument.

As for its cross-appeal, the district argues that the IHO erred in not applying the Burlington/Carter analysis in considering the parent's requested relief, and further that the parent did not meet her burden to prove that the services she unilaterally obtained for the student were appropriate to meet the student's unique needs.  The district further asserts that the IHO erred in awarding compensatory education for missed SETSS because the parent privately contracted for 10 hours per week of SETSS instead of 15 hours per week and should not be permitted to seek compensatory education to make up for gaps in the privately obtained program.  In addition, the district asserts that the hearing record does not support the parent's claim that the student required 15 hours per week of SETSS.

In an answer to the cross-appeal, the parent responds to the district's arguments and reiterates her request for pendency, an award of funding for SETSS delivered to the student by Upgrade, and direct funding to the providers for the costs of related services delivered to the student during the 2023-24 school year.

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]).[10]  "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.).[11]  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

Neither party has challenged the IHO's finding that the district failed to provide the student with a FAPE for the 2023-24 school year (see IHO Decision at p. 2).  Therefore, that determination 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 Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S. et al., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Pendency

Turning to the parties dispute regarding the student's stay put placement, during the pendency of any proceedings relating to the identification, evaluation or placement of the student, 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 (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. 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]).[12]  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 to "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 Cent. Sch. Dist. Bd. of Educ., 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).

Initially, with respect to the district's argument that the parent waived pendency, review of the hearing record shows that the issue of pendency was raised by the parent in the due process complaint notice (Parent Ex. A at p. 2).  It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906).  Indeed, the student's right to pendency arises as of the filing of the due process complaint notice even if a request for pendency is not included in the due process complaint notice or made "at any particular point in the proceedings" (Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 701 [S.D.N.Y. 2006]; see E. Lyme, 790 F.3d at 455; M.R. v. Ridley Sch. Dist., 744 F.3d 112, 123-25 [3d Cir. 2014]; Murphy v. Arlington Central School District Board of Education, 297 F.3d 195, 199-200 [2d Cir. 2002]).  Instead, it is the district's responsibility upon the filing of the due process complaint notice to implement the "then current educational placement" in accordance with 20 U.S.C. § 1415(j), and the parties should thereafter notify the IHO if there is a dispute over which services constitute that educational placement so that the IHO can ensure that arrangements are made for the submission of any necessary evidence on the issue and the matter is decided.[13]  To be sure, there is no further discussion of pendency on the record, but in light of the parent's request for pendency in the due process complaint notice, I find the issue was sufficiently before the IHO.

Therefore, the next issue to be determined is what constitutes the student's pendency placement.  The parent and the district appear to agree that the student's pendency lay in the 2022 decision except that the parent interprets the 2022 decision to be "based upon" the December 2020 IESP whereas the district looks to the 2022 decision on its own terms (compare Req. for Rev. at pp. 1-2, and Parent Ex. A at pp. 2, 5, with Answer ¶¶ 6-7).  The 2022 decision found that the parent was entitled to an order of district funding of 15 hours per week of group SETSS unilaterally obtained by the parent from Yes I Can Services "or any qualified substitute SETSS provider" for the 2021-22 school year and compensatory OT and PT services (Parent Ex. C at pp. 7-8).[14]  The December 2020 IESP provided for 15 periods per week of group SETSS, three 30-minute sessions per week of individual speech-language therapy, three 45-minute sessions per week of individual OT, five 45-minute sessions per week of individual PT, and an individual, full-time health paraprofessional (Parent Ex. B at pp. 6-7).

Neither interpretation of the student's pendency—i.e., the 2022 decision independent from or based on the December 2020 IESP—entitles the parent to the relief sought in this matter.  With regard to the provision of services to the student for the 2023-24 school year, the hearing record indicates that Upgrade provided the student with 10 hours per week of SETSS, along with speech-language therapy, OT, and a full-time paraprofessional (Parent Exs. I; J; K; L ¶ 12; M ¶ 10).

The dispute between the parties, as it arises in the pendency context, is: whether the district was required fund the services from Upgrade as pendency.  The substance of this inquiry was addressed by the Second Circuit; the Court found that the district had the authority "to determine how to provide the most-recently-agreed-upon educational program" (Ventura de Paulino, 959 F.3d at 534).  More specifically, the Second Circuit held that if a parent disagrees with a district's decision on how to provide a student's educational program, the parent could either argue that the district's decision unilaterally modifies the student's pendency placement and invoke the stay-put provision, seek to persuade the district to agree to pay for the student's program in the parent's chosen school placement, or enroll the student in the new school and seek retroactive reimbursement from the district after the IEP dispute is resolved (id.).  According to the Court, "what 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" (id. [emphasis added]).[15]

Thus in this case, whether the parent can recover the costs of services from the district under a pendency argument turns on whether the student continued to receive the programming that constitutes the pendency placement.  However, here, the December 2020 IESP contemplated that the district would deliver services rather than the parent, and the 2022 decision made no assessment of the appropriateness of unilaterally obtained services delivered by Upgrade given that, for the school year at issue in that matter, the parent had obtained services from a different company, Yes I Can Services (Parent Ex. C at pp. 6, 7-8).  On August 31, 2023, when the parent signed a contract with Upgrade for the provision of the student's SETSS for the 2023-23 school year, she effectively unilaterally modified the student's pendency placement (see Parent Ex. G).

Because the parent chose to unilaterally employ a provider to deliver services to the student that had not been approved under the last agreed-upon placement, the parent cannot claim pendency lies with Upgrade for the provision of the student's special education programming.  Thus, when the parent contracted with Upgrade, the parent rejected the pendency placement.  Therefore, the district is not required to fund the program provided by Upgrade through pendency.  Accordingly, the parent's request for an award of an order of pendency is denied.

B. Legal Standard

The IHO held that because the district failed to implement the special education and related services for the student's 2023-24 school year "compensatory education is the remedy" (IHO Decision at p. 2).  The IHO then went on to award some compensatory education, as well as reimbursement for some of the services the parent obtained from Upgrade, but without conducting any analysis of the appropriateness of the unilaterally obtained services (see id. at pp. 1-3).  The district asserts that the IHO erred in reviewing the parent's request for relief under a compensatory education approach rather than the Burlington/Carter framework.  Specifically, the district argues that the IHO "glossed over the [p]arent's request for funding for the privately obtained services" and that the parent did not meet her burden of proof under the Burlington/Carter analysis in demonstrating the appropriateness of the services provided by Upgrade (Answer & Cr.-App. ¶¶ 11, 16-17).

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that the district failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino, 959 F.3d at 526 [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[16]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Although use of the Burlington/Carter framework, for a matter involving an IESP developed pursuant to State Education Law § 3602-c rather than an IEP developed pursuant to the IDEA, is not based on direct authority from the courts, there is also no authority as to what other, more analogous framework might be appropriate when a parent privately obtains special education services that a school district failed to provide and then retroactively seeks to recover the costs of such services from the school district.  I also note that IHOs have not approached the question with consistency.  While the IHO may disagree with the use of the Burlington/Carter standard, I find the alternative approaches adopted by some IHOs insufficient to address the factual circumstances in these cases.  I address some of the reasons for this below.

With respect to the IHO's reference to the matter being an implementation dispute, rather than an IEP design dispute, the distinction is of little consequence.  A district's delivery of a placement and/or services 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 (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. v. New York City Dep't of Educ., 584 F.3d 412, 419-20 [2d Cir. 2009]; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]).  Thus, a deficient IEP is not the only mechanism for concluding that a school district has failed to provide appropriate programming to a student and thereby also failed to provide a FAPE.  Such a finding may also be premised upon a standard described by the courts as a "material deviation" or a "material failure" to deliver the services called for by the public programming (see L.J.B. v. N. Rockland Cent. Sch. Dist., 660 F. Supp. 3d 235, 263 [S.D.N.Y. 2023]; Y.F. v. New York City Dep't of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015], aff'd, 659 Fed. App'x 3 [2d Cir. Aug. 24, 2016]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010] [deviation from IEP was not material failure]; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 273 [S.D.N.Y. 2012]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011] ["[E]ven where a district fails to adhere strictly to an IEP, courts must consider whether the deviations constitute a material failure to implement the IEP and therefore deny the student a FAPE"]).  The courts do not employ a different framework in reimbursement cases because the parents raise a "material failure" to implement argument rather than a program design argument, and instead they employ the Burlington/Carter approach (R.C., 906 F. Supp. 2d at 273; A.L., 812 F. Supp. 2d at 501; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 232 [D. Conn. 2008], aff'd, 370 Fed. App'x 202).

The most defining factor that has arisen in these matters for determining the appropriate category of relief and the standards attendant thereto is whether the parent engaged in self-help and obtained relief contemporaneous with the violation and then sought redress through a due process proceeding (i.e., the Burlington/Carter scenario) or whether the relief is prospective in nature with the purpose to remedy a past harm (i.e., compensatory education).  In the former, the parent has already made decisions unilaterally, without input from the district, and, therefore, must bear a burden of proof regarding those services.  For prospective compensatory education ordered to remedy past harms, relief may be crafted to be delivered in the future with protections to avoid abuse and to promote appropriate delivery of services.  While some courts have fashioned compensatory education to include reimbursement or direct payment for educational expenses incurred in the past, those cases are in jurisdictions that place the burden of proof on all issues at the hearing on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App'x 874, 878-79 [7th Cir. 2015]; Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022]).  In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F., 746 F.3d at 76; R.E., 694 F.3d at 184-85).  Treating the requested relief as compensatory education is problematic in that it places the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider, obtained the services, and is the party in whose custody and control the evidence necessary to establish appropriateness resides.

Based on the foregoing, I find that the IHO did not apply the appropriate legal standard to assess whether the parent was entitled to the relief sought.

When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).

The parent argues that the IHO's treatment of the relief as compensatory education was "harmless error" given that the parent presented evidence to support the unilaterally obtained services and "the IHO's determination would have been the same had the Burlington-Carter analysis been applied" (Answer to Cr.-Appl at pp. 3-4).  However, the parent's position is speculative as the IHO did not offer any analysis in his decision as to the appropriateness of the services delivered by Upgrade (see IHO Decision at pp. 1-3).  Because the IHO failed to examine whether the services provided by Upgrade were appropriate to meet the student's unique needs taking into account the totality of the circumstances and failed to assess the appropriateness of an award of compensatory education in light of the parent's act of engaging in self-help for only a portion of the services desired, the IHO's decision on this issues must be vacated and the matter remanded to the IHO for further proceedings.[17]^, [18]  On remand, the IHO shall assess the appropriateness of the parent's unilaterally obtained services using the Burlington/Carter standard.  If the IHO finds the parent met her burden to demonstrate the appropriateness of the services delivered by Upgrade, the IHO shall consider whether equitable considerations support an award of reimbursement of direct funding for the costs of the services provided by Upgrade.  The IHO should further reconsider the parent's request for compensatory education taking into account the circumstances surrounding the parent's arrangement of some, but not all, of the services that the parent believed the student required in order to receive educational benefit.  I will leave it to the IHO's sound discretion regarding adequate development of the hearing record on those topics and whether to provide the parent an opportunity to present additional evidence regarding the student's programming and progress at STEP and a concomitant opportunity for the district to respond.  Additionally, the IHO may find it appropriate to schedule a prehearing conference with the parties to, among other things, simplify and clarify the issues left to be resolved at the hearing (see 8 NYCRR 200.5[j][3][xi][a]).

VII. Conclusion

Having reached the decision to remand this matter, the IHO is directed to conduct an analysis of the evidence submitted by the parties during the impartial hearing using the Burlington/Carter standard to determine whether the unilaterally-obtained services the parent secured from Upgrade were, under the totality of the circumstances, appropriate to address the student's needs and, if so, whether equitable considerations favor the parent including any defenses raised by the district.  The IHO is further directed to reconsider the parent's request for compensatory education consistent with the discussion above.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated November 27, 2024 is modified by vacating that portion that awarded relief, including compensatory education and reimbursement for all speech-language therapy, OT and paraprofessional services that were paid for the 2023-24 school year;

IT IS FURTHER ORDERED that the matter is remanded to the IHO for further proceedings in accordance with the body of this decision; and

IT IS FURTHER ORDERED that in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed.