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 from a decision of an impartial hearing officer (IHO) which denied, in part, the parents' request that respondent (the district) fund the costs of their daughter's home-based services for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which granted, in part, the parents' request for funding of the student's home-based program.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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, 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 received diagnoses of autism with intellectual disability and language impairment, level 3; generalized epilepsy, convulsive; and pica (Dist. Ex. 4 at pp. 3, 4).[1]  She has reportedly received a "home-based program" since 2009 (Parent Ex. A at p. 6).  For the 2022-23 school year the student was "homeschooled" and received applied behavior analysis (ABA) in the home setting based on a pendency order issued in a prior administrative proceeding (IHO Ex. I at pp. 6, 9).[2]

A CSE convened on May 2, 2023, determined that the student remained eligible to receive special education as a student with autism, and developed an IEP with a projected implementation date of May 16, 2023 (IHO Ex. I at pp. 1, 37).[3]  The May 2023 CSE recommended that the student attend an 8:1+2 special class in a State-approved nonpublic school and receive four 60-minute sessions per week of individual occupational therapy (OT); three 60-minute sessions per week of individual physical therapy (PT); five 60-minute sessions per week of individual speech-language therapy; and an individual Proloquo2go iPad for use at school and home, all on a 12-month basis (id. at pp. 29-30, 35).  The IEP reflected that the student's placement would be deferred to the district's central based support team (CBST) to locate a nonpublic school for the student "that focuse[d] on assisting children with Autism to achieve goals in academics, communication, social skills, self-help skills, adaptive behaviors as well as development of vocational skills, independent work habits and community integration" (id. at p. 7, 29).  The CSE also recommended that the student receive the following special transportation accommodations: transportation from the closest safe curb to the school and door-to-door transportation on a mini bus (id. at p. 34).  The May 2023 CSE noted that the student was "currently being homeschooled" and that the student's prior IESP "show[ed] a recommendation of [special education teacher support services (SETSS)] ten times per week, Speech-Language therapy five times per week, Physical Therapy three times per week, Occupational Therapy four times per week, and a Proloquo2go iPad daily for communication" (id. at p. 6).[4]  The CSE noted that "[u]pon completion of high school, [the student] will participate in a day habilitation program to learn essential vocational skills related to her vocational interest of food preparation" (id. at p. 16).

Following the May 2023 CSE, the student participated in a neuropsychological consultation on June 28, 2023 (see Dist. Ex. 4 at p. 1).[5]  On August 7, 2023, the CSE reconvened "to review [the] results of [the] independent neuropsychological evaluation and to determine appropriate educational placement" (Parent Ex. E at pp. 30, 32).  According to the student's mother, during both the May and August 2023 CSE meetings, a nonpublic school, EDEN II, was discussed as an option for the student although the school had not contacted her (Parent Ex. T ¶ 9).  The August 2023 CSE noted that "[b]ased on a review of new and previous testing as well as review of records, the continuation of the recommendation to defer [the student]'s case to CBST for a Day Program is being made" (Parent Ex. E at p. 7).  The August 2023 CSE documented that "[i]t should be noted that [the student]'s OT and PT services [we]re being removed because the Day Program incorporate[d] these services into the curriculum" (id.).  The August 2023 CSE recommended the student attend an 8:1+3 special class at a State-approved nonpublic school; five 60-minute sessions per week of speech-language therapy; and an individual Proloquo2go iPad for school and home (id. at pp. 24-25).

According to the student's mother, she disagreed with the CSE's decision to remove OT and PT from the student's IEP as she asserted the therapies "were eliminated to fit EDEN 2 as a placement" (Parent Ex. T ¶¶ 9-11).  She further reported that no alternative placement in a district specialized school or a nonpublic school was recommended for the student and therefore she continued to receive a home-based program for the 2023-24 school year (id. ¶¶ 15, 16).

The district's offer of a FAPE to the student for the 2023-24 school year was the subject of a prior impartial hearing (2023-24 proceeding), which resulted in an IHO decision dated May 20, 2024 (SRO Ex. I).[6]  The IHO in that matter found that the district did not demonstrate that it offered the student a FAPE for the 2023-24 school year and ordered the district to fund the following services based on "52 weeks, including holidays, vacations etc" at "enhanced rate[s]": 37 hours per week of individual ABA services; three hours per week of individual services "from a qualified ABA coordinator"; three 60-minute sessions per week of individual PT; five 60-minute sessions per week of individual OT; and five 60-minute sessions per week of individual speech-language therapy per week using the Prompts for Restructuring Oral Muscular Phonemic Targets (PROMPT) method (id. at pp. 14-15).

On May 22, 2024, the student's mother emailed the district stating that she was going to visit EDEN II "to discuss the best steps" and that she wanted the recommended program for the student's "2024-25 school year" and was "looking forward to finding out how much OT, SLT, and ABA will be provided so [they] c[ould] determine whether home based services continue[d] to be necessary" (Parent Ex. H at pp. 2-3).  The next day, the parent emailed the district stating that EDEN II "indicated that they needed two weeks to confirm if they had a spot available for [the student]" and she would update the district as soon as she heard from EDEN II so the parties could meet to plan for the student's 2024-25 school year (id. at p. 2).

On June 11, 2024, the student's mother emailed the district to notify them that a representative from EDEN II had informed her "that they c[ould not] provide an appropriate placement to [the student] for her 24/25 SY" (Parent Ex. H at p. 1; see Parent Ex. G).  The mother inquired of the district as to "what other options the CSE [could] recommend for [the student]," indicated that she was "interested in looking into alternative placements that the district recommended," and wrote that "the 24/25 SY is starting very soon so we are anxious for your response" (Parent Ex. H at p. 1).

A. Due Process Complaint Notice

The parents filed a due process complaint notice on July 1, 2024 alleging that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A).  The parents alleged that the district denied the student a FAPE by failing to convene a CSE for the 2024-25 school year, and by the CSEs' continued failure to recommend individual instruction for the student, a 1:1 paraprofessional, ABA, or PROMPT-based speech language therapy services (id. at pp. 6-9).  The parents invoked the student's right to pendency, asserting that the student's pendency lay in the May 2024 IHO decision (id. at pp. 1-2).  As relief, the parents sought an order directing the department to fund the student's home-based special education program and related services for the 2024-25 school year (id. at p. 11).  The parents further sought an award directing the district to provide instruction and services for a 52-week period including weekends, holidays and vacations (id. at p. 12).

On July 30, 2024, the district executed a form agreeing that the student's stay put placement during the pendency of this matter consisted of the services ordered in the May 2024 unappealed IHO decision (Pendency Agreement).

Following an August 6, 2024 prehearing conference, on August 9, 2024, the parents filed an amended due process complaint which alleged that the home-based program was appropriate for the student and, as relief, additionally requested that the district be required to place the student in a nonpublic school with ABA, BCBA supervision, speech-language therapy, OT, and PT for a 12-month school year, and that the home-based program continue until the student was successfully enrolled in a nonpublic school (Parent Ex. B at pp. 11-12).[7]

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on October 10, 2024 (see Tr. pp. 25-105).  In a decision dated December 24, 2024, the IHO found that the district conceded it had not offered the student with a FAPE because it failed to conduct a CSE meeting to engage in educational planning for the student's 2024-25 school year (IHO Decision at pp. 4, 11).  The IHO held that under the Burlington/Carter standard, the parents met their burden "in part" to establish that the student's home-based program provided the student with appropriate instruction to meet her unique needs, but that the parents failed to demonstrate that the student required a 52-week educational program (id. at pp. 10, 12).  The IHO noted that the parents failed to establish "what portion of the ABA services [we]re academic in nature" and that "[a] significant part of the [student's] day [wa]s devoted to non-instructional matters and [wa]s determined by the [s]tudent" (id. at p. 13).  The IHO further found the ABA agency director's testimony was vague as related to the student's progress and that it failed to establish why the student would require a 52-week school year (id.).  The IHO noted that the student's speech-language provider had been working with the student since October 2019 on the same goals as the student had in October 2019 (id.).  In addition, the IHO held that the OT provider did not administer OT services in accordance with her own recommendations (id. at p. 14).  With respect to equitable considerations, the IHO found that the parent cooperated with the CSE but that the home-based program was intended to maximize the student's education (id. at p. 15).

Ultimately, the IHO ordered the district to place the student in an appropriate nonpublic school placement for the 2024-25 school year but ordered relief in the interim in the form of funding of a home-based program for the student to be provided until the student's placement and enrollment at the nonpublic school placement (IHO Decision at pp. 15-16).  The IHO provided that the interim programming would mirror the student's then-current home-based program but should be "administered during traditional school days (Monday to Friday) and traditional school hours" for a 42-week school year (id. at p. 15).  Further, the IHO held that, since the parents failed to establish why the speech-language and OT providers needed enhanced rates, the rates for the student's speech-language and OT providers would "be set by the [d]istrict's implementation unit" (id.).  Thus, the IHO ordered the district to fund the interim programming as follows: 27.5 hours per week of individual instructional services provided by a qualified ABA provider at the rate of $120 per hour; two and one half hours per week of individual coordination services from a qualified BCBA provider at a rate of not less than $150 per hour as paid to the student's then-current BCBA or similar providers paid by the district; three 60-minute sessions per week of individual PT to be provided through a related services authorization (RSA); four 60-minute sessions per week of individual OT at the rate of the student's then-current provider or similar providers paid by the district; five 60-minute sessions per week of individual speech-language therapy at the rate of the student's then-current provider or similar providers paid by the district (id. at p. 16).  The IHO noted that "[s]essions [we]re not to be provided on weekends or in the evenings" (id.).  The IHO dismissed any further claims (id. at p. 15).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in holding that the student was receiving services in excess of a FAPE and in awarding home-based programming based on a 42-week school year instead of 52 weeks with a reduction to the frequency of the student's home-based ABA, BCBA supervision, and OT, and without specifying that the student's speech-language therapy should be delivered using PROMT methodology.  The parents also allege that the IHO erred in ordering the home-based programming until the district identifies a nonpublic school for the student to attend, arguing that the order was insufficiently specific.  The parents assert that the student needs a full-time ABA nonpublic school with BCBA supervision, OT, PT, PROMPT-based speech-language therapy.

In an answer with cross-appeal, the district responds to the parents' allegations and argues that the IHO did not err in reducing the funding awarded.  As for its cross-appeal, the district asserts that the IHO's award directing the district to fund the parents' home-based program should be reversed because the parents failed to establish that they were under a financial obligation to pay for the home-based services.  Additionally, the district raises the defense that the parents' appeal was procedurally deficient.[8]

In a reply to the district's answer and cross-appeal, the parents assert that the district's claim that the parents' appeal was procedurally deficient was meritless.  Further, the parents assert that the district's argument that a 52-week program was not necessary for the student ignored the student's substantial regression.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, 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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; 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., 554 F.3d at 252).  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, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "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).

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., 694 F.3d at 184-85).

VI. Discussion

Initially, neither party has appealed the IHO's treatment of the relief sought by the parents as a request for funding under the Burlington/Carter framework; the IHO's findings that the district failed to offer the student a FAPE for the 2024-25 school year and that the parents met their burden to establish that the student's home-based programming provided the student with instruction specially designed to meet her needs for the 2024-25 school year; or the IHO's order that the district identify a nonpublic school for the student, except to the extent the parent seeks a more detailed order in this regard (see IHO Decision at pp. 11-12).[10]  Accordingly, these findings have 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]).  The only issues remaining relate to the weighing of equitable considerations and the relief ultimately awarded.

Before turning to the merits of the dispute, however, I note that the issues before me have, in essence, been rendered moot.  A dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]).  In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted (see, e.g., V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 [N.D.N.Y. 2013]; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 [E.D.N.Y. 2010]; Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4; but see A.A. v. Walled Lake Consol. Schs., 2017 WL 2591906, at *6-*9 [E.D. Mich. June 15, 2017] [considering the question of the "potential mootness of a claim for declaratory relief"]).  Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student (see Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 [5th Cir. 1989]; Application of a Child with a Disability, Appeal No. 07-139; Application of the Bd. of Educ., Appeal No. 07-028; Application of a Child with a Disability, Appeal No. 06-070; Application of a Child with a Disability, Appeal No. 04-007).

Here, as relief, the parents sought, in part, funding for continuation of the student's home-based programming consistent with that program ordered in the May 2024 IHO decision arising from the 2023-24 proceeding (Parent Ex. B at pp. 11-12; see SRO Ex. I at pp. 14-15).  There is no dispute that the district was required to fund the student's stay put placement from the date of the parents' original July 1, 2024 due process complaint notice through the pendency of these proceedings to include services based on "52 weeks, including holidays, vacations etc" at "enhanced rate[s]," including 37 hours per week of individual ABA services; three hours per week of individual services "from a qualified ABA coordinator"; three 60-minute sessions per week of individual PT; five 60-minute sessions per week of individual OT; and five 60-minute sessions per week of individual speech-language therapy per week using the Prompts for Restructuring Oral Muscular Phonemic Targets (PROMPT) method (SRO Ex. I at pp. 14-15; see Parent Ex. A; Pend. Agreement).[11] 

While a student is entitled to remain in his or her stay-put placement during the pendency of a proceeding, this statutory protection is similar to preliminary injunctive relief to protect the student while the proceedings are pending and is distinct from the ultimate relief available to a parent through the due process proceedings (20 U.S.C. § 1415 [j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]).  However, in this instance, the student received services under pendency for the entirety of the 12-month 2024-25 school year.  While the parent additionally sought relief in the form of requiring the district to place the student in a nonpublic school, given the conclusion of the school year, such relief would not be meaningful at this juncture.

However, a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318-23 [1988]; Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040).  The exception applies only in limited situations (City of Los Angeles v. Lyons, 461 U.S. 95, 109 [1983]), and is severely circumscribed (Knaust v. City of Kingston, 157 F.3d 86, 88 [2d Cir. 1998]).  It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration" (Murphy v. Hunt, 455 U.S. 478, 482 [1982]; see Knaust, 157 F.3d at 88).  Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process (see Lillbask, 397 F.3d at 85).  Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again (Weinstein v. Bradford, 423 U.S. 147, 149 [1975]; Toth, 720 Fed. App'x at 51; see Hearst Corp., 50 N.Y.2d at 714-15).  To create a reasonable expectation of recurrence, repetition must be more than theoretically possible (Murphy, 455 U.S. at 482; Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 [2d Cir. 2001]).  Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence (Russman, 260 F.3d at 120; but see A.A., 2017 WL 2591906, at *7-*9 [finding that the controversy as to "whether and to what extent the [s]tudent can be mainstreamed" constituted a "recurring controversy [that] will evade review during the effective period of each IEP for the [s]tudent"]; see also Toth, 720 Fed. App'x at 51 [finding that a new IEP that did not include the service requested by the parent established that the parent's concern that the prior IEP would be repeated was not speculative and the "capable of repetition, yet evading review" exception to the mootness doctrine applied]).

Some courts have taken a dim view of dismissing a Burlington/Carter reimbursement case as moot because all of the relief has been obtained through pendency (New York City Dep't of Educ. v. S.A., 2012 WL 6028938, at *2 [S.D.N.Y. Dec. 4, 2012]; New York City Dep't of Educ. v. V.S., 2011 WL 3273922, at *9-*10 [E.D.N.Y. Jul. 29, 2011]), while others have found it an acceptable manner of addressing matters in which the relief has already been realized through pendency (see V.M., 954 F. Supp. 2d at 119-20 [explaining that claims seeking changes to the student's IEP/educational programing for school years that have since expired are moot, especially if updated evaluations may alter the scrutiny of the issue]; Thomas W. v. Hawaii, 2012 WL 6651884, at *1, *3 [D. Haw. Dec. 20, 2012] [holding that once a requested tuition reimbursement remedy has been funded pursuant to pendency, substantive issues regarding reimbursement become moot, without discussing the exception to the mootness doctrine]; F.O., 899 F. Supp. 2d at 254-55; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *9 [S.D.N.Y. Dec. 16, 2011]; M.S., 734 F. Supp. 2d at 280-81 [finding that the exception to the mootness doctrine did not apply to a tuition reimbursement case and that the issue of reimbursement for a particular school year "is not capable of repetition because each year a new determination is made based on [the student]'s continuing development, requiring a new assessment under the IDEA"]).

Initially, review of the district court decision in V.S., shows that matter was determined not to be moot because a decision as to the adequacy of the proposed IEP in that matter would have supplanted the student's then-current pendency placement and established a new educational placement for the student (V.S., 2011 WL 3273922, at *10).  However, in this matter, neither party has appealed from the IHO's determination that the district failed to offer the student a FAPE for the 2024-25 school year.  Accordingly, there can be no pendency changing determination in this proceeding and there is no further relief that could be addressed in this matter that is ongoing and remediable.

Additionally, the capable of repetition yet evading review exception to mootness would not apply because the conduct complained of—the district's failure to offer the student a FAPE—is no longer at issue in this proceeding.  Rather, the parties' dispute centers around the particular home-based services the parents obtained as self-help to remedy the district's denial of a FAPE to the student.  As the FAPE determination has already been addressed and the only issues in this matter relate to the weighing of equitable considerations, any parental concern that the district would continue to recommend the same program is not addressable at this level of the proceeding and cannot be used to justify a finding that the matter is "capable of repetition, yet evading review."  While the Second Circuit has noted that "IEP disputes likely satisfy the first factor for avoiding mootness dismissals" because "judicial review of an IEP is 'ponderous'" (Lillbask, 397 F.3d at 87), this does not seem to be a concern in this matter as the IEP dispute has been removed.  Without an IEP dispute, the question of equitable considerations could be made in a much shorter time frame.  More pertinently, however, because there is no longer a dispute as to the student's educational programming, there is no district action "capable of repetition, yet evading review."  As such, the issue of whether equitable considerations support relief, unlike FAPE, does not fit into the mootness exception as it is not capable of repetition yet evading review.

Based on the foregoing, the matter is moot as there is no further relief that may be granted.  Nevertheless, out of an abundance of caution, I will address the crux of the parties' dispute in alternative findings.

A. Equitable Considerations

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.  Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.  Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]).  With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

1. Excessive Services

Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]).  An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100).  More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA.  To the contrary, "[r]eimbursement 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).  Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act.  Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).

The IHO reduced the requested relief as excessive based on the weeks in the school year, and further reduced the frequency of the ABA services from the 37 hours per week to 27.5 hours, ABA coordinator services from three hours to two and a half hours per week, and OT services from five to four sessions to reflect the "weekly number of hours of a high school student" and to take into account that some portion of the ABA services focused on non-instructional matters and were determined by the student (IHO Decision at pp. 13, 15-16).[12]

The founder/director (director) of Learners' Compass, the agency providing ABA services to the student, testified via affidavit that the agency provided the student "with 40 hours of 1:1 ABA service per week," three of which were "provided by a coordinator" (Parent Ex. M ¶ 10).  According to the student's daily schedule, the student's day lasted seven hours three days a week and seven and a half hours two days a week, not including the delivery of related services, amounting to a total of 36 hours (Parent Ex. K).  The daily schedule indicated that the student received 5.25 hours of instruction each day in the areas of leisure, academics, verbal behavior, and self-management (id.).  Further, the daily schedule indicated that within these blocks of instruction the student "select[ed] [her] own schedule/order of programs from [a] list provided by instructors" (id.).  The daily schedule indicated that the remaining schedule (either 1.75 or 2.25 hours depending on the day) consisted of other activities such as morning schedule, lunch (with instructor), free time (with instructor), exercise, or independent activities (id.).

The hearing record is not clear when the student received the 13 hours per week of related services; as noted, they were not listed on the student's daily schedule as occurring on Monday through Friday between the hours of 8:00 am and 3:00 or 3:30 pm (see Parent Ex. K).  The student's occupational therapist testified during the hearing that she provided services to the student on Mondays, Tuesdays, and Thursdays, for two hours per day on two of the days and one hour on the third day (Tr. p. 85).  The occupational therapist testified that she chose to see the student three days a week as opposed to five because "it t[ook] a while for [the student] to adapt and adjust to the routine" as well as that "the therapy [was] extensive" and she had "to incorporate everything that [she] need[ed] to do within the two hours" (id.).  The student's speech-language therapist indicated she worked with the student "in the evenings" (Parent Ex. O ¶ 19).  The hearing record is silent as to the timing of the student's PT services.

With respect to the weeks in the school year, in the May and August 2023 IEPs, the district recommended a 12-month school year for the student and there is no dispute that the student experienced substantial regression such that an extended school year was appropriate (see IHO Ex. I at p. 30; Parent Ex. E at p. 25).[13]  However the parent's unilaterally obtained programming was delivered over a 52-week school year, which is not reflective of how educational services are generally delivered.  For most students, a school year spans 10 months (36 weeks), or for students receiving 12-month services, an additional period of services during the summer (see Schneps v. Nyquist, 58 A.D.2d 151, 153 [3d Dep't 1977]).[14]  In addition, the student's services amount to at least 50 hours per week including hours with the ABA and related service providers, whereas, State regulation specifies that for state aid purposes, a school day shall be five hours for students in kindergarten through grade 6 (i.e., 25 hours per week) and 5.5 hours for students in grades 7 through 12 (i.e., 27.5 hours per week) (see 8 NYCRR 175.5[j]).

However, in order to receive a FAPE, a student with a disability may, under certain circumstances, require "necessary services during times when other children, both disabled and nondisabled, normally would not be served," which could include "summer months" as in the case of typical extended school year services, or "before and after regular school hours or during school vacations" (Extended School Year Services, 71 Fed. Reg. 46,582 [Aug. 14, 2006]).  Accordingly, the issue to be determines is whether the student required the level of services provided in order to receive a FAPE.  In their memorandum of law, the parents argue that the student's need for a 52-week program at the frequencies delivered was documented by testimony and a neuropsychological note, went uncontroverted by the district, and that the program was not for the purpose of maximization (Parent Mem. of Law at p. 5).

The hearing record includes a May 2024 "Analytics Report" from "the online version of the Assessment of Basic Language and Learning Skills-Revised (ABLLS-R)" (Parent Ex. J at p. 1).  According to the document, it was "a comprehensive review of . . . skills . . . that most typically-developing children acquire prior to entering kindergarten" (id.).  In her affidavit, the Learners' Compass director indicated that they used the results of this assessment to "develop[] [the student's] programming" (Parent Ex. M ¶ 16).  While the analytics report did not include an analysis of the collected data, the founder testified in her affidavit that it, along with the student's ABA Toolbox, "show[ed] that [the student] require[d] a dense schedule of maintenance to retain newly acquired skills" and that the student "exhibit[ed] developmental delays" in the various skills assessed (id.).

A September 2024 progress report indicated the student received "37 hours of 1:1 ABA interventions per week" that addressed the student's "behavior management, functional communication training, self-management skills, leisure activities, academics, pre-vocational skills, and verbal behavior" (Parent Ex. L at p. 2).  The September 2024 progress report indicated the student "create[d] her own schedule" daily based on "activities from her current and mastered programming" (id.).  The September 2024 progress report included that the "self-scheduling . . . greatly reduced eloping behaviors" and that the student had "the autonomy to arrange the schedule herself by adding and removing programs throughout the session" (id.).  According to the September 2024 progress report, the student's Pica-related behavior "require[d] constant monitoring" although the student's "attempts to ingest hand soap when supervision [was] faded in the restroom ha[d] been reduced" (id.).  The September 2024 progress report indicated that "[m]aintenance of previously mastered programs [was] presented daily" (id. at p. 3).

The September 2024 progress report included various strategies used with the student to address behavior such as "[m]and training, [f]unctional communication training, [n]on-contingent reinforcement, [and] frequent preference assessments" (Parent Ex. L at p. 4).  Echoing the phrasing used by the Learners' Compass director, the September 2024 progress report indicated that the student "require[d] a dense schedule of maintenance to retain newly acquired skills" (id. at p. 6; see Parent Ex. M ¶ 16).  The September 2024 progress report reviewed the lessons the student was taught, some of which were introduced as early as 2020 (Parent Ex. L at pp. 7-25).  According to the September 2024 progress report, the student's current goals were labeled as "emerging," "progressing inconsistently," "progressing satisfactorily," or "progressing gradually" (id. at pp. 7-19).[15]  In addition to the student's current goals, the September 2024 progress report included the student's "mastered goals" from 2022 and 2023 as well as "discontinued goals" (id. at pp. 20-25).[16]

Similar to an April 2023 speech-language therapy progress report, a September 2024 speech-language therapy progress report indicated the student demonstrated "significantly decreased receptive, expressive, and pragmatic language . . . as well as poor intelligibility of speech" (compare Parent Ex. N at p. 1, with Dist. Ex. 6 at pp. 1-2).  The September 2024 progress report stated that the student had "difficulty implementing executive functioning skills" and "difficulties in the areas of perception, focusing, sustained attention, engagement, shifting attention, working memory[,] and inhibition" (Parent Ex. N at p. 1).  The September 2024 speech-language therapy progress report included that the student's "weak executive functioning . . . impact[ed] her ability to sustain attention and process oral and written language" (id. at p. 1).

The September 2024 speech-language therapy progress report indicated that the student exhibited "sensory[-]seeking behaviors" that were "especially frequent when novel or undesirable tasks [were] presented" (Parent Ex. N at p. 2).  According to the September 2024 speech-language therapy progress report, "the therapist use[d] visual and verbal schedules, clear instructions with detailed steps or planning" that "reduce[d] [the student's] levels of frustration and decrease[d] stimulatory behaviors" (id.).  The September 2024 speech-language therapy progress report included that the student was "often . . . unaware of social cues" and sometimes "appear[ed] to be oblivious and/or confused" during some opportunities for communication (id.).

According to the September 2024 speech-language therapy progress report, the student "demonstrate[d] poor carryover and generaliz[ation] skills" and "significant difficulties transferring acquired skills into everyday communication" (Parent Ex. N at p. 4).  The September 2024 speech-language therapy progress report also indicated that the student became "easily frustrated, oppositional, and unmanageable when she c[ould ]not communicate her basic needs and wants" (id.). 

The student's speech-language therapist provided an affidavit in which she indicated she had worked with the student "since October 2019" (Parent Ex. O ¶ 6).  According to the speech-language therapist, the student was "not intentionally connected to her environment" and could not "inhibit her impulses" (id. ¶ 7).  The speech-language therapist testified that, during periods of the student's "dysregulat[ion], she demonstrate[d] no receptive abilities and [was] entirely consumed by self-directed behavior" (id. ¶ 8).  The speech-language therapist included in her affidavit that the student required "repetition and visuals" as well as "frequent prompts[] and movement breaks to engage during . . . session[s]" (id. ¶¶ 8, 15).

According to the speech-language therapist's affidavit, the student "made steady progress since the start of the 2024-2025 school year" and that while the student's "attention [was] still highly variable," she was "more responsive to cues to re-engage and [was] better able to identify when she need[ed] a movement break" (Parent Ex. O ¶ 18).  The speech-language therapist indicated that the student needed services "over a 12-month school year" because "she require[d] constant reinforcement and modeling in order to make progress" (id. ¶ 22).  Further, the speech-language therapist stated that, "[w]hen there [were] short gaps in [the student's] services, [she] quickly regresse[d]" (id.).  The speech-language therapist testified that the student "require[d] a highly structured and repetitive program due to her inability to self-monitor" and that "[e]ven if she learn[ed] a skills, she ha[d] difficulty using it independently without this degree of structure and repetition" (id.).

In her affidavit, the student's occupational therapist offered that she had worked with the student "since December 30, 2023" and "found that [the student] had significant sensory processing difficulties" (Parent Ex. S ¶¶ 7, 9).  According to the occupational therapist, the student "ha[d] moderate-severe body awareness delays" and "[s]he frequently elope[d] from an environment and exhibit[ed] self-stimulatory behaviors" (id. ¶ 10).  The occupational therapist testified in her affidavit that she "work[ed]" with the student to "increas[e] her attention skills as she [was] distracted because she [was] extremely sensory-driven" (id.).

The occupational therapist reported that she created a sensory diet for the student which "consist[ed] of a listening program, proprioceptive input, vestibular input, movement, and visual scanning and tracking activities" (Parent Ex. S ¶ 14).  According to the occupational therapist, the student demonstrated "improved" auditory processing skills, "but . . . still need[ed] to be paired with visuals for her to comprehend" (id. ¶ 15).  According to the occupational therapist, the student demonstrated a reduction in "verbal stimming" and was "more in control of stimulatory behaviors" (id.).  The occupational therapist reported that the student previously "le[ft] the room 3-4 times" but no longer did so (id.).  Additionally, the occupational therapist stated that the student "exhibit[ed] a more organized state," "tolerate[d] 25-30 minutes of on-task activity," and was "calmer, organized, and underst[ood] routine" (id. ¶ 16).

During the hearing, the occupational therapist testified that the student was "an extremely sensory-craving adolescent" and that "[s]he exhibit[ed] . . . visual stims, verbal stims, [and] physical stims" (Tr. p. 84).  The occupational therapist further testified that "this all impact[ed] [the student's] ability to focus and attend, to calm, to organize, [and] to be . . . functional within her environment" (id.).  The occupational therapist testified that "the sensory approach" allowed the student "to exhibit some progress" (id.).

Throughout the hearing record, the student was described as an individual who required "a dense schedule of maintenance" and significant repetition to learn and progress (Parent Exs. E at pp. 6, 10; L at p. 6; M ¶¶ 16, 18, 33; O ¶¶ 8, 15, 22; T ¶ 20).  The Learners' Compass director offered in her affidavit that the student "ha[d] very poor retention skills and required all previously taught skills to be repeated to maintain the skill" (Parent Ex. M ¶ 17).  Because of this, the director testified that the student's "academic program [was] focused on maintaining previously taught skills and slowly adding steps to develop new skills" (id. ¶¶ 17, 20).  The director offered that the student "ha[d] made gradual, but steady progress" in the ABA program (id. ¶ 28).  The parent also testified in her affidavit that the student "made very steady progress" in her program, though "[i]t [was] difficult for [the student] to gain new skills" (Parent Ex. T ¶. 24).

In her affidavit, the student's mother testified that the student required "a 12-month school year because she regresse[d] very quickly if she d[id] not receive services for even short periods" (Parent Ex. T ¶. 20).  According to the mother's affidavit, the student "need[ed] constant repetition to maintain previously mastered skills, or she . . . quickly forg[ot] them" (id.).  According to the Learners' Compass director's affidavit, the student required the ABA program "over the course of a 12-month (52-week[)] school year[] because her retention of previously learned concepts [was] severely low and she require[d] constant repetition and maintenance, or she w[ould] quickly lose these skills" (Parent Ex. M ¶ 29).  The director testified in her affidavit that the student was "at risk of regression or of only making trivial progress" without a "highly cohesive" ABA program (Parent Ex. M ¶ 32).  The speech-language therapist indicated in her affidavit that the student needed services "over a 12-month school year" because "she require[d] constant reinforcement and modeling in order to make progress" (Parent Ex. O ¶ 22).  Further, the speech-language therapist included in her affidavit that "[w]hen there [were] short gaps in [the student's] services, [she] quickly regresse[d]" (id.).

While the hearing record indicates that the student exhibited regression warranting a 12-month school year, there was no data in the hearing record to support a 52-week program as opposed to a 42-week program or for the frequency of services delivered.  The March 2023 treatment plan indicated that data was collected and graphed daily, and the founder of the ABA agency testified that she had "access to all" of the student's "data" and that the agency had an "internal database" that "include[d] all data from [the student's] discrete trial programs, but no such data was included in the hearing record that might have demonstrated the need for a 52-week program or for the number of hours of ABA and OT (Parent Ex. M ¶¶ 11, 16; Dist. Ex. 9 at p. 28).

Based on the lack of data and the other factors weighed by the IHO related to the substance of the student's nonacademic instruction during times allotted for ABA services, there is insufficient grounds to disturb the IHO's discretionary reduction in the award of district funding for the student's services on equitable grounds.  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

2. Financial Obligation

The district's cross-appeal asserts that the IHO's award of funding for the student's home-based program should be reversed as there is no evidence in the hearing record that the parents were financially obligated to pay for the home-based program.  Specifically, the district alleges that the hearing record does not contain contracts between the agencies providing the home-based services and the parents nor any "invoices, sessions notes, or attendance records" and therefore the parents failed to prove that they are financially responsible for any of the student's home-based services.  The district is correct in that the hearing record contains no evidence of the parents' financial risk or their legal obligation to pay for the student's home-based services.

With that said, the parents were not necessarily required to show a financial obligation for the period of time when the district was required to fund the services pursuant to pendency (see Application of a Student with a Disability, Appeal No. 22-164; Application of a Student with a Disability, Appeal No. 22-177; Application of a Student with a Disability, Appeal No. 21-245; Application of a Student with a Disability, Appeal No. 20-042).  Indeed, from the date of the parents' due process complaint notice, July 1, 2024 (see Parent Ex. A), through the date of this decision—which encompasses the entirety of the 2024-25 school year—the district has been obligated to fund the student's home-based program under pendency (see July 30, 2024 Pendency Implementation Form).  Thus, the issue of whether the parents incurred a legal obligation to pay for the services is moot and it is unnecessary to address the question further (Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 [2d Cir. 2005]; see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. Jan. 2, 2018]; F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 [S.D.N.Y. 2012]; Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 [E.D.N.Y. Oct. 30, 2008]; J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 [W.D.N.Y. Sept. 30, 2008]; see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 [2012]; Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980]).  The district's cross-appeal will be dismissed.

B. Other Relief

The parents appeal the IHO's failure to specify that the student's speech-language services were to be provided by a speech-language therapist with PROMPT-based credentials.  The IHO ordered that the district fund the student's home-based program which included five 60-minute "one-to-one sessions per week (as stipulated and agreed to as between the parties), at the rate paid to the provider currently servicing the [s]tudent, or similar providers by the [d]istrict's implementation unit within the last six months from the date of this order" (IHO Decision at p. 16).[17]

The hearing record establishes that the speech-language provider who served the student for the 2024-25 school year was employed by Chatterbox SLP Therapy, P.C., was PROMPT-trained and that she and the student "follow[ed] the hierarchy of goals set out in the PROMPT program" (Parent Ex. O ¶¶ 3, 4, 5, 11).  The speech-language report reflects that the speech language therapist used both PROMPT-modeling and DTTC methods during speech-language therapy sessions with the student (Parent Ex. N at p. 2).

Accordingly, although the IHO's award did not specify that the funded speech-language therapy be provided by a provider with training in PROMPT methodology, the award requires the district to fund the services delivered to the student during the 2024-25 school year, which the record reflects were delivered using PROMPT.  Thus, the parent is not aggrieved by this portion of the IHO's decision and, therefore, it is unnecessary to further discuss the issue.

As a final matter, the parent also alleges that the IHO's order requiring the district to identify a nonpublic school for the student was insufficiently specific and that the IHO should have specifically ordered that the district identify a nonpublic school that provides 12-month school year program, ABA and BCBA services, PROMPT-based speech-language therapy, OT, and PT.  However, as noted above, as the 2024-25 school year has now concluded, I find that any relief relating to the student's program and placement for the 2024-25 school is, at this juncture, moot.  With that said, if the district has not yet completed its educational planning for the 2025-26 school year, it is encouraged to consider the parent's specific request and, if the CSE continues to believe that the student should attend a State-approved nonpublic school, to engage in a diligent search for an appropriate nonpublic school for the student to attend.

VII. Conclusion

As set forth above, the parties dispute is, at this juncture, moot.  Even if the matter was not moot, however, there would be insufficient basis to disturb the IHO's discretionary determination that the equitable considerations warranted a reduction of hours for the student's home-based program and a 42-week extended school year.

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations above.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.