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 failed to order special education itinerant teacher (SEIT) services for the student for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision which found The Learning Experience (Learning Experience) and the parents' unilaterally-obtained services were appropriate.  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]).  Similarly, when a preschool student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, an individual who can interpret the instructional implications of evaluation results, and a chairperson that falls within statutory criteria (Educ. Law § 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.1[mm], 200.3, 200.4[d][2], 200.16; see also 34 CFR 300.804).  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 has received diagnoses of a genetic neurodevelopmental syndrome, autism spectrum disorder, global developmental delays, motor dyspraxia, and speech-language disorder (Parent Exs. E-F; J at p. 1; X ¶ 7; Z ¶ 5).

The student received early intervention (EI) services which consisted of individual applied behavior analysis (ABA) in school and after school, occupational therapy (OT), physical therapy (PT), speech-language therapy; in addition, the student received SEIT services, as well as private speech-language therapy services (Parent Ex. J at p. 2; L at p. 1; Z ¶ 6).  Thereafter, the student was found eligible for special education services as a preschool student with a disability and attended a general education preschool (Parent Exs. I; L at p. 1).  During preschool, the student received SEIT services, speech-language therapy, OT, and PT (Parent Exs. I; J at p. 2; Z ¶ 8).[1]

On May 22, 2024, the CSE convened and found the student eligible for special education as a student with autism (see generally Dist. Ex. 1).  It was noted that the student had attended preschool at Learning Experience since September 2023 (Dist. Ex. 1 at p. 1).  The May 2024 CSE recommended the student receive five periods per week of integrated co-teaching (ICT) services in math, 10 periods per week of ICT services in English language arts (ELA), and three periods per week of ICT services in social studies (id. at p. 16).  The May 2024 CSE also recommended the student receive related services of one 30-minute session per week of individual OT, one 30-minute session per week of group OT, one 30-minute session per week of individual PT, one 30-minute session per week of group PT, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and that the parents receive two 30-minute sessions per year of group parent counseling and training (id. at pp. 16-17, 22-23).  By prior written notice dated May 29, 2024, the district notified the parent of the May 2024 CSE recommendations (see Dist. Ex. 2). 

On June 14, 2024, the parents notified the district of their disagreement with the May 2024 IEP and of their intent to unilaterally place the student at Learning Experience for the 2024-25 school year (see Parent Ex. C).[2]  In addition, the parents stated that if the district did not offer an appropriate program and placement for the student, they would also seek costs for up to 25 hours of individual SEIT, ABA instruction, and/or direct instruction; four sessions of speech-language therapy per week; two sessions of OT per week; two sessions of PT per week; and the costs associated with the student's attendance at Learning Experience (Parent Ex. C at p. 3).

By prior written notice dated June 26, 2024, the district notified the parents of the public school site to which the student had been assigned for the 2024-25 school year (see Dist. Ex. 3).[3]

For the 2024-25 school year, the student attended an additional year of preschool at Learning Experience and did not attend kindergarten (Parent Ex. Y ¶ 3).

A. Due Process Complaint Notice

In an amended due process complaint notice dated September 25, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see generally Parent Ex. B).[4]  The parents invoked the student's right to pendency and asserted that the student's pendency services were based on an unappealed August 28, 2024 IHO decision, which consisted of 12-month services at Learning Experience, three 45-minute sessions per week of speech-language therapy, two 45-minute sessions per week of OT, two 45-minute sessions per week of PT, 10 hours per week of SEIT services, 12 hours per week of 1:1 ABA instruction, two hours per week of Board Certified Behavior Analyst (BCBA) supervision, and four 60-minute sessions per year of parent counseling and training (id. at p. 2).

The parents alleged that the May 2024 CSE failed to offer the student a FAPE for the 2024-25 school year (Parent Ex. B at p. 6).  Specifically, the parents alleged that the IEP developed by the May 2024 CSE did not offer a FAPE for the 2024-25 school year, that the May 2024 CSE was not properly composed, that the May 2024 IEP was "not sufficiently individualized," that the May 2024 CSE failed to properly evaluate the student, that the CSE failed to reconvene to address the parents' concerns, that the May 2024 IEP included errors and omissions, that the recommended class size ratio was not appropriate, that the May 2024 IEP lacked a recommendation for 1:1 instruction, that the recommended related services, annual goals and short term objectives were inadequate, that the May 2024 CSE failed to recommend 12-month services or extended school day services, that the May 2024 CSE failed to recommend a program in the student's least restrictive environment (LRE), that the May 2024 CSE failed to consider or develop a functional behavioral assessment (FBA) or behavior intervention plan (BIP), that the May 2024 CSE failed to recommend an appropriate placement and failed to recommend special transportation (id. at pp. 6-15).  Next, the parents alleged that the unilateral placement was "reasonably calculated" to provide the student with educational benefits and that equitable considerations weighed in their favor (id. at p. 15).

As relief, the parents sought reimbursement and/or direct funding of the costs of the student's attendance at Learning Experience, up to 25 hours per week of 1:1 SEIT/ABA instruction, up to four sessions per week of speech-language therapy, up to two sessions per week of OT, up to two sessions per week of PT, and up to four sessions per year of parent counseling and training (Parent Ex. B at p. 15).[5]

B. Impartial Hearing Officer Decision

The parties convened for an impartial hearing before an IHO from the Office of Administrative Trials and Hearings (OATH) on October 28, 2024 and concluded on January 22, 2025, after three days of proceedings (Tr. pp. 1-79).[6]  On November 18, 2024, the IHO issued an interim decision on pendency, finding that the student's pendency services were based on an unappealed July 1, 2024 IHO decision (Nov. 18, 2024 Interim IHO Decision at p. 1).  The IHO determined that the student's pendency services consisted of 12-month services, which included the student's enrollment at Learning Experience, 10 hours per week of individual SEIT services, two 45-minute sessions per week of individual PT, two 45-minute sessions per week of individual OT, three 45-minute sessions per week of individual speech-language therapy, 12 hours per week of 1:1 ABA instruction, two hours per week of BCBA supervision, and four 60-minute sessions per year of parent counseling and training (id.).

In a decision dated February 7, 2025, the IHO found that the district failed to meet its burden of showing that it offered a FAPE to the student for the 2024-25 school year; that the unilateral placement was appropriate; that the unilaterally-obtained speech-language therapy, OT, 1:1 ABA, BCBA supervision, and SEIT services were appropriate; and that equitable considerations favored the parents (IHO Decision at pp. 8-12).

Specifically, in connection with the district's burden, the IHO found that the district did not present testimony to explain the CSE's recommendations (IHO Decision at p. 8).  The IHO found that although the district was not required to consider a specific methodology for the student, the "undisputed evidence establishe[d] that [the] [s]tudent required 1:1 support" and the district failed to explain why individual support was not considered for the student (id.).

In connection with the parents' burden with respect to the appropriateness of the unilaterally-obtained services, the IHO found that the speech-language therapy and OT services were appropriate, as well as the providers selected by the parents (IHO Decision at p. 10).  Next, the IHO found that 12 hours per week of 1:1 ABA, two hours per week of BCBA supervision, and 10 hours per week of SEIT were appropriate and were specially designed to meet the student's needs (id. at pp. 10-11).  With respect to equitable considerations, the IHO found that the parents provided the district with a 10-day notice letter and there were no arguments advanced regarding the costs of the unilateral placement or unilaterally-obtained services (id. at pp. 11-12).

As relief, the IHO ordered the district to reimburse the parents for 12-month services consisting of three 45-minute sessions per week of speech-language therapy at a rate not to exceed $225 per hour; two 45-minute sessions per week of OT at a rate not to exceed $240 per hour; 12 hours per week of in-school ABA services and two hours per week of in-school BCBA supervision, at a reasonable market rate to be determined by district's implementation unit; and reimbursement of the tuition paid to Learning Experience not to exceed $2,650 per month (IHO Decision at pp. 13-14).

IV. Appeal for State-Level Review

The parents appeal on a limited basis alleging that the IHO erred when she "inadvertently omitted" the SEIT services from the ordering clause of the decision.  The parents explicitly state that they are not appealing any other aspects of the IHO's decision.[7]  In their appeal, the parents express that the student had a "complex learning and medical profile" resulting in "significant delays in all areas of development" and therefore, required a "robust educational program" that included individual SEIT services and ABA instruction, BCBA supervision, related services, and parent counseling and training (Req. for Rev. at pp. 2-3).  The parents argue that the IHO found that the evidence in the hearing record supported the parents' request for 10 hours per week of SEIT services, but that the specific relief of SEIT services was left out of the ordering clause.  Accordingly, the parents request a "corrected order" to include 10 hours per week of SEIT services (id. at p. 5).

In an answer and cross-appeal, the district generally denies the material allegations contained in the request for review.  As its cross-appeal, the district argues that the IHO erred in finding that Learning Experience was an appropriate unilateral placement and that the SEIT services and ABA services were appropriate for the student.  The district argues that there was a lack of evidence in the hearing record about the student's program or general education curriculum at Learning Experience.  In connection with the ABA services, the district argues that the services "were supplemental" to Learning Experience's program and there was no evidence in the hearing record as to how the ABA services in the classroom helped the student "access the general education curriculum" (Answer & Cr.-App. ¶ 8).  Similarly with respect to the SEIT services, the district asserts that there was no evidence of how the SEIT services allowed the student to access the general education curriculum at Learning Experience.  The district seeks a reversal of the IHO's awarded relief.

In an answer to the district's cross-appeal, the parents argue that the IHO correctly found that Learning Experience, SEIT services, ABA services, and BCBA supervision were appropriate for the student for the 2024-25 school year.  The parents also assert that the district should be estopped from arguing that Learning Experience and the parents' unilaterally-obtained 1:1 SEIT services were not appropriate, when the district had funded the same program in a prior school year.  In addition, the answer to the cross-appeal included the following additional evidence: SRO Ex. B – Learning Experience program description; SRO Ex. C – Learning Experience curriculum for preschoolers; SRO Ex. D – overview of Learning Experience; and SRO Ex. E – Learning Experience general information.[8]

In a reply to the parents' answer to the cross-appeal, the district requests that the additional evidence submitted by the parents be excluded from the hearing record.  The district also argues in its reply that the district has the right to cross-appeal the IHO's finding that Learning Experience was an appropriate unilateral placement.

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, it is noted that neither party has appealed from the IHO's determinations that the district denied the student a FAPE for the 2024-25 school year; that the district be required to reimburse the parents for three 45-minute sessions per week of speech-language therapy for the 12-month, 2024-25 school year at a rate not to exceed $225 per hour; that the district reimburse the parents for two 45-minute sessions per week of OT for the 12-month, 2024-25 school year at a rate not to exceed $240 per hour; or that equitable considerations did not warrant a reduction in an award of the parents' requested funding.  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]).

Turning to the remaining issues before me, 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]).  "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Chaperon v. Banks, 2025 WL 2207908, at *6-7 [S.D.N.Y. Aug. 4, 2025] [quoting Martin-Trigona v. Shiff, 702 F.2d 380, 386 [2d Cir. 1983]].  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).

Furthermore, in IDEA cases "courts have dismissed as moot claims brought under the IDEA where an IHO or SRO has granted the plaintiff's requested relief prior to the court's adjudication” (Chaperon, 2025 WL 2207908 at *6-7; citing Ramos v. New York City Dep't of Educ., 447 F. Supp. 3d 153, 157 [S.D.N.Y. 2020]).  "Similarly, pendency claims are routinely determined to be moot where the [district] has fully funded a student's tuition" (id.; see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 362 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]].

Here, for the 12-month, 2024-25 school year, the parents request funding for tuition at  Learning Experience, 10 hours per week of 1:1 SEIT services, 12 hours per week of 1:1 ABA instruction, and two hours per week of BCBA supervision.  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 as to whether the IHO erred in finding that the Learning Experience as well as the unilaterally obtained ABA, BCBA, and SEIT services were appropriate or whether equitable considerations bar 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.

Pursuant to the IHO's interim decision on pendency dated November 18, 2024, it is undisputed that the district was required to fund Learning Experience tuition, 10 hours per week of individual SEIT services, two 45-minute sessions per week of individual PT, two 45-minute sessions per week of individual OT, three 45-minute sessions per week of individual speech-language therapy, 12 hours per week of individual ABA, two hours per week of BCBA supervision, and four 60-minute sessions per year of parent counseling and training, for the student for the 12-month, 2024-25 school year (Nov. 18, 2024 Interim IHO Decision at p. 1).  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 time for developing a new IEP for the student in May 2025, and the parents' due process complaint notice and amended due process complaint notice requested the same services for both pendency and the ultimate relief as part of the hearing (see Parent Exs. A at pp. 2, 10; B at pp. 2, 15).  Further, during the appeal, both counsel for the parents and counsel for the district represented, in correspondence to this office requesting extensions, that the student was receiving services pursuant to pendency.  Accordingly, the parents have received all of 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, a 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 proceeding 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 12-month, 2024-25 school year (see IHO Decision at p. 8).  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 unilateral placement and unilaterally-obtained services the parents provided to the student 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 appropriateness of the unilateral placement and unilaterally-obtained services and 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 the appropriateness of unilaterally-obtained services 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 a unilateral placement 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 to be granted, the necessary inquiry is at an end.

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.