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 the decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their daughter's private services delivered by Hebrew Academy for Special Children (HASC) for the 2024-25 school year.  The 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 parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail.

Briefly, the student presents with global neurodevelopmental impairments and significant medical needs (Parent Ex. E at p. 5; Dist. Ex. 7 at p. 5).  She is "nonverbal, non-ambulatory and reliant on full assistance for daily activities" Dist. Ex. 4 at p. 1).

A CSE convened on May 30, 2024 and finding that the student continued to be eligible to receive special education as a student with multiple disabilities developed an IEP for the student with an implementation date of June 13, 2024 (Dist. Ex. 7 at pp. 1, 27).  The CSE recommended the student receive five two-hour sessions per week of individual special class home instruction (homebound instruction), five 45-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), and seven 60-minute sessions per week of individual speech-language therapy (Dist. Ex. 7 at pp. 1, 20-21).[1], [2]  The May 2024 CSE also recommended that the student receive assistive technology devices, including a dynamic display speech generating device and switches to be provided in the student's home (id. at p. 21).

The parents signed a tuition agreement dated July 30, 2024 with HASC, to provide 20 hours per week of services by a special education teacher to the student for the 12-month 2024-25 school year (Parent Ex. F).[3]

A. Due Process Complaint Notice

In an amended due process complaint notice dated July 16, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. B).[4]  Initially, the parents indicated that the student has been receiving the same educational program since the 2011-12 school year and requested that, pursuant to pendency, the district continue funding the student's educational program consisting of four hours per day of special education instruction as well as related services (id. at pp. 2-3).  Next, the parents rejected the May 2024 CSE's recommendation of individual homebound instruction two hours per day, five days per week, arguing that the student needed at least four hours per day of instruction from a one-to-one special education teacher to make educational progress and prevent substantial regression (id. at p. 3).  The parents further alleged that they were denied an opportunity to meaningfully participate in the IEP process because the CSE determined the student's program based on what was available for homebound instruction in the district rather than the student's individual needs and the CSE failed to adequately consider the information provided by the parents or consider their concerns about the student's need for an individually tailored program that provided significant language support (id.).

Regarding the May 2024 IEP, the parents argued that the annual goals and short-term objectives were generic, vague, and did not contain a baseline from which to work, and the May 2024 IEP failed to properly identify the student's present levels of performance or identify management needs for the student (Parent Ex. B at p. 4).

As relief, the parents requested that the district maintain and fund the student's home program for the 2024-25 school year, which consisted of 20 hours per week of individual special education teacher support, seven 60-minute sessions per week of individual speech-language therapy, five 45-minute sessions per week of individual OT, and five 60-minute sessions per week of individual PT for the 12-month school year (Parent Ex. B at p. 5).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on October 30, 2024, and concluded on December 3, 2024 after two days of hearings (Tr. pp. 1-148).[5] During the hearing, the parents withdrew all claims for related services indicating that they were "resolved" and the sole remaining issue was the instructional support the student was receiving (Tr. pp. 10-11).

In a decision dated February 5, 2025, the IHO found that the district denied the student a FAPE for the 2024-25 school year (IHO Decision at pp. 17-18).  More specifically, the IHO found that that the district witnesses conceded the student required more than 10 hours per week of instruction but decided not to put a recommendation for 15 hours per week of instruction on the student's IEP because the district witness believed the student was not available for more than six and a half hours per week of instruction (id.at p. 17).  The IHO determined that the parents' indication the student would not be available for more hours did not preclude the district from recommending an appropriate program for the student (id.).  The IHO noted that the district recognized the student's need for additional homebound instruction and began providing the student with 14 hours per week of homebound instruction beginning in October 2024 (id. at p. 17).  The IHO stated that State regulations provided that when a student is unable to attend school because of an illness or injury, the district may provide up to 15 hours of services at the secondary school level (id.).[6]  The IHO found that the testimony of the district home-instruction teacher  and the district special education teacher regarding the number of hours of homebound instruction required by the student demonstrated that the recommendations made by the May 2024 CSE were inappropriate, rising to the level of a deprivation of a FAPE for the student for the 2024-25 school year (id. at p. 18).

Regarding the appropriateness of the unilaterally obtained special education teacher support services, the IHO found that the district was willing to provide the student with 15 hours per week of homebound instruction, but the parents wanted the instruction to be provided by the same provider the student had been receiving services from for the past eight years (IHO Decision at pp. 19-20).  According to the IHO, the parents' preferences did not deprive the district of its right to assign the home instructors it chooses, outside a showing of wrongdoing or incompetency by any of the district instructors (id. at p. 20).  The IHO further noted that homebound instruction was interrupted at times and the IHO conveyed to the parties the importance of cooperating with scheduling sessions so that there is no overlap or waiting time by instructors and that the providers have adequate time with the student (id.).  The IHO found that the special education teacher worked on many of the same issues being addressed by the related services providers (id. at p. 21).  Considering this, the IHO indicated that when the CSE next convenes it should consider if home instruction hours should be decreased and related services hours increased and if services by a special education teacher were required and for how many hours (id.).

When considering the totality of the circumstances, the IHO determined that the program being sought by the parents may assist them in caring for the student, but it was not clear that the program was necessary for the student to make progress (IHO Decision at pp. 21-22).  The IHO found that the parents did not show how an extended school day or how 20 hours per week of special education teacher services were responsible for the student's progress (id.).  In considering the parent's requested relief, the IHO indicated that the parent was requesting the 15 hours per week of home instruction offered by the district plus 20 hours per week of privately obtained special education instruction, along with the resolved related services, with all services totaling 50 hours and 45 minutes per week (id. at p. 22).  Considering this, the IHO awarded the parents 15 hours per week of homebound instruction plus five hours per week of privately obtained special education services by the parents' chosen provider (id.).  Additionally, because the district was only providing 10 hours per week of homebound instruction during July and August of 2024, the IHO awarded the parents funding for 10 hours of privately obtained services during that period of time (id.).

Regarding equitable considerations, the IHO awarded the parents funding for an additional five hours per week of private special education services, for a total of 10 hours per week of private special education services, in addition to the already resolved related services and the 15 hours per week of home instruction offered by the district (IHO Decision at p. 23).

The IHO ordered the district to provide the student with three hours, five days per week of homebound instruction for the 12-month 2024-25 school year; to continue providing the student with  five 45-minute sessions per week of OT, five 60-minute sessions per week of PT, and seven 60-minute sessions per week of speech-language therapy for the 12-month 2024-25 school year; and to fund 10 hours per week of special education teacher services at a rate of $125 per hour by the provider of the parents' choosing for the 12-month 2024-25 school year (IHO Decision at p. 24).

IV. Appeal for State-Level Review

The parents appeal, alleging that the IHO erred in failing to order the district to fund 20 hours per week of private special education services for the student.  More specifically, the parents argue that the IHO erred by conflating the appropriateness of the requested 20 hours per week of special education instruction with the regulatory minimum of 15 hours per week of homebound instruction.  The parents argue that the IHO erred by aggregating the hours of homebound instruction and special education services.  The parents allege that the record demonstrates the student's need for 20 hours per week of special education services.  According to the parents, the special education services were appropriate under the totality of the circumstances, met the student's unique needs, and the student made progress because of the special education services.  The parents also argue that equitable considerations favor full relief for the parents.

In an answer to the parents' request for review, the district argues that the IHO's decision should be affirmed because the hearing record shows that the parents failed to demonstrate the appropriateness of the privately-obtained special education services, and the hearing record does not reflect that the student made any educational progress in the unilaterally obtained program during the 2024-25 school year.  The district argues that the private special education teacher repeated exercises that were provided during the student's OT, PT, and speech-language therapy sessions.  The district also argues that equitable considerations do not support an award of 20 hours per week of special education services because the parents failed to provide the district with a 10-day notice of their intention to reject the district's program and obtain services unilaterally at district expense.  Finally, the district argues that the IHO's award of special education services should be directed as an in-person service to be provided within the traditional school day.

In a reply to the district's answer, the parents argue that there should not be a reduction to district funding of the unilaterally obtained services based on the absence of a 10-day notice because there was no discussion of the lack of a 10-day notice during the impartial hearing process and this issue is being presented for the first time on appeal.  Finally, the parents argue that they were not required to provide a 10-day notice because the student was not removed from her public school placement, rather the parents sought additional services.

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]).[7]

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

The parties do not dispute the IHO's finding that the district denied the student a FAPE for the 2024-25 school year.  Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Here, the parents seek funding for 20 hours per week of privately-obtained, home-based "one-to-one special education teacher support" (Req. for Rev. at p. 10; Parent Ex. B at pp. 1, 5).  The IHO awarded the parents a total of ten hours per week of private special education services, declining to grant the full amount of the parents' requested relief because the IHO found the parents failed to meet their burden of proof in this matter as they did not provide sufficient evidence that the program was necessary for the student to make progress during the 2024-25 school year (IHO Decision at pp. 21-22).[8]  Based on the facts of this case and the length of time it took to reach this point in the proceeding, I find that it is unnecessary to reach a conclusion on whether the IHO correctly determined the appropriateness of the unilaterally obtained special education services or whether equitable considerations warrant a reduction in relief because the parents have obtained all of the relief they sought pursuant to pendency.  In other words, there is no longer a live controversy.

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).

There is no dispute that the district was required to fund 20 hours per week of "one-to-one special education teacher support" services for the 12-month 2024-25 school year pursuant the parties' pendency agreement (IHO Ex. II; IHO Decision at p. 3).[9]  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 and past the projected date for annual review for developing a new IEP for the student in May 2025, and the parents' due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (Parent Exs. A at pp 1-2; B at pp. 1-2).  During the hearing, counsel for the parents and the district indicated that the student's pendency program was in place (Tr. pp. 114, 146-47); further, during the appeal, counsel for the parents represented, in correspondence to this office requesting an extension, that the student was receiving services pursuant to pendency.  Accordingly, the parents have received all the relief sought in this proceeding.

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 (Answer ¶ 3).  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 how many hours of privately obtained home-based services the student is entitled to funding for, services which, at this point, have all been paid for by the district through pendency.  As the FAPE determination has already been addressed and the only issues in this matter relates to the funding of additional "one-to-one special education teacher support," 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 the privately obtained "one-to-one special education teacher support" delivered to the student 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 additional "one-to-one special education teacher support" is appropriate, 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.

VII. Conclusion

Having determined that there is no further relief that may be granted, the necessary inquiry is at an end.

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

THE APPEAL IS DISMISSED.