I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO) determining her son's pendency placement during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student for the 2025-26 school year.  The district cross-appeals from the IHO's interim decision, arguing that the IHO erred in identifying the student's stay-put placement.  The appeal must be sustained.  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

Due to the interlocutory nature of this appeal, the hearing record is limited with respect to information regarding the student's educational history and some of the background described herein is derived from prior IHO decisions and additional documents submitted by the parties with their appeal filings.[1]

A CSE convened on October 28, 2021, found the student eligible for special education as a student with autism, and created an IEP for the student with a projected implementation date of November 15, 2021 (Answer Ex. 1 at pp. 1, 33).  The CSE recommended that the student attend a 12:1+1 special class for English language arts (ELA), math, and sciences (id. at p. 26).  The October 2021 CSE further recommended that the student receive three periods per week of adapted physical education, one 30-minute session per week of group counseling, one 30-minute session per week of individual occupational therapy (OT), one 30-minute session per week of group OT, one 30-minute session per week of group physical therapy (PT), two 30-minute sessions per week of group speech-language therapy, and four sessions per year of parent counseling and training (id. at pp. 26-27).

On February 27, 2023, the parent filed a due process complaint notice alleging that the district denied the student a FAPE for the 2023-24 school year and seeking that an IHO (IHO 1) order a residential placement for the student as relief (Req. for Rev. Ex. A at p. 3).

The CSE reconvened on August 15, 2023 and developed an IEP for the student with a projected implementation date of September 5, 2023 (IHO Ex. VII at pp. 1, 30).  The August 2023 CSE found the student eligible for special education services as a student with an emotional disability and recommended that the student be placed in a 12:1+1 special class in a State-approved nonpublic residential school due to concerns about the student's "safety and social emotional issues" (id. at pp. 1, 11, 32).  The August 2023 CSE further recommended related services consisting of one 30-minute session per week of group counseling services, 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 group PT, and two 30-minute sessions per week of group speech-language therapy (id. at pp. 1, 23-24).

In September 2023, the district's central based support team (CBST) referred the student to a number of State-approved residential programs, but the student was not accepted at any of the State-approved nonpublic schools to which he was referred for placement (IHO Ex. VI at p. 9).

By decision dated September 21, 2023, IHO 1 rendered a final determination regarding the parent's February 2023 due process complaint that ordered the district to reconvene the CSE within seven days and recommend a residential placement for the student to be determined by the CBST (Req. for Rev. Ex. A at p. 15).

On April 22, 2024, the parent filed a due process complaint notice alleging that the district denied the student a FAPE for the 12-month 2023-24 and 2024-25 school years due to the district's failure to secure an appropriate residential placement for the student (IHO VI at p. 3). The parent identified a nonpublic residential school, Shrub Oak International School (Shrub Oak), and requested sought an order for the district to provide prospective direct funding for the cost of the student's residential placement at Shrub Oak (id.).[2]  In a decision dated October 15, 2024, an IHO (IHO 2) awarded tuition funding for the student's prospective placement at Shrub Oak for the extended 2024-25 school year (id. at pp. 19-20).

The student began attending Shrub Oak on November 7, 2024 (Req. for Rev. ¶ 15).

A. Due Process Complaint Notice

In another due process complaint notice dated July 1, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2025-26 school year by failing to offer the student an appropriate residential placement (IHO Ex. I at pp. 1-2).  Additionally, the parent asserted that the district failed to reconvene a CSE for the 2025-26 school year and had not provided an updated IEP, prior written notice, school location letter, or final notice of placement recommendation (id. at p. 2).  The parent advised that she had unilaterally placed the student at Shrub Oak for the 2025-26 school year (id.).  The parent requested that an IHO issue an interim decision finding that Shrub Oak constitutes the student's stay-put placement and also sought prospective tuition funding at Shrub Oak for the 12-month 2025-26 school year (id. at pp. 2-3).

B. Impartial Hearing Officer Interim Order on Pendency

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH).  The IHO (IHO 3) accepted briefs from both parties regarding the student's pendency placement (see IHO Exs. II, III).

The parent sought an interim order finding that the student's then current educational placement for purposes of stay-put should be based upon IHO 2's unappealed decision dated October 15, 2024 (IHO Ex. II at p. 2).  The parent argued that although IHO 2 framed her decision as compensatory relief, IHO 2 nevertheless made findings on the merits and considered the evidence regarding the appropriateness of Shrub Oak as a unilateral placement (id. at pp. 7-8).  Additionally, the parent noted that the student would lack a placement if his current residential placement at Shrub Oak was not continued (id. at p. 10).

The district objected to the IHO issuing an interim order that based the student's pendency placement on IHO 2's October 2024 decision (IHO Ex. III at p. 1).  The district argued that because the student had not yet been enrolled at Shrub Oak at the time of issuance of the October 2024 IHO 2 decision, Shrub Oak could not be considered the student's then current placement (id. at p. 2).  The district also noted that Shrub Oak's tuition costs had changed, and urged IHO 3 to address whether the changing costs rendered Shrub Oak to be a different placement (id. at p. 4).  The district did not identify an alternative setting that would constitute the student's pendency placement (see id. at pp. 1-4).

In an interim decision dated August 12, 2025, IHO 3 found that pendency was located in the August 2023 IEP and ordered that the student's pendency program consisted of placement in a 12:1+1 special class in a State-approved nonpublic residential school with related services consisting of  one 30-minute session per week of group counseling services, 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 group PT, and two 30-minute sessions per week of group speech-language therapy (Interim IHO Decision at p. 8).  IHO 3 determined that the October 2024 IHO 2 decision could not serve as the basis for pendency because its analysis of Shrub Oak in the context of compensatory relief was conducted under a different legal standard and was not a determination of appropriateness on the merits that would imply an agreement under the Burlington/Carter standard (id. at pp. 4-5).  According to IHO 3, because the October 2024 IHO 2 decision addressed a prospective placement for the student, it lacked sufficient detail about the specific contours of the student's program at Shrub Oak such that a thorough determination of appropriateness could not be reached (id. at pp. 6-7).

IV. Appeal for State-Level Review

The parent appeals, alleging that IHO 3 erred in locating the student's pendency placement in the August 2023 IEP instead of the October 2024 IHO 2 decision.  The parent argues that issues such as the specifics of the student's program at Shrub Oak should be considered at the impartial hearing but are irrelevant for purposes of pendency.  Disputing IHO 3's characterization of the October 2024 IHO 2 decision, the parent argues that IHO 2 made significant findings regarding the appropriateness of the student's placement at Shrub Oak.  The parent also notes that the August 2023 IEP was never implemented and therefore, the parent contends that the August 2023 IEP cannot be used as the basis for a pendency order.

For relief, the parent seeks reversal of IHO 3's interim decision and a determination allowing the student to remain at Shrub Oak for the pendency of the proceedings.  The parent also requests remand to a different IHO because she believes that IHO 3 exhibited bias against her and the student by declining to grant the interim relief they sought.

In an answer and cross-appeal, the district also contests IHO 3's interim order on pendency, arguing that the student's last agreed-upon program for purposes of pendency is his October 2021 IEP.  The district agrees with the parent that the August 2023 IEP cannot constitute pendency because its recommendations were never implemented.  However, the district argues that the October 2024 IHO 2 decision cannot form the basis of the student's pendency program because a compensatory award does not constitute an agreement between the parties for purposes of pendency.  Accordingly, in the district's view, the student's last agreed-upon program was the October 2021 IEP.

In an answer to the district's cross-appeal, the parent argues that the August 2023 IEP cannot serve as the basis for the student's pendency program because that IEP was superseded by subsequent IEPs and IHO decisions.  The parent reiterates her position that the October 2024 decision by IHO 2 should form the basis for the student's pendency programming.

V. Applicable Standards

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[3]  Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).  The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).  A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]).  The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906).  Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).  Furthermore, the Second Circuit has stated that educational placement means "the general type of  educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171).  However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]).  Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).

VI. Discussion

Many of the underlying facts are not in dispute.  The parent and the district both agree that the student requires a residential placement (Req. for Rev. ¶ 2; Answer ¶¶ 4-7).  It is undisputed that the unappealed IHO 1's decision dated September 21, 2023 ordered the district to reconvene the CSE to recommend a residential placement and defer the case to the CBST for immediate placement (Req. for Rev. Ex. A at p. 15).  It is also undisputed that the district had convened a CSE meeting in August 2023, recommending a State-approved nonpublic school, and deferred placement to the CBST to identify a residential nonpublic school for the student (IHO Ex. VII).  The CBST was unable to secure a residential nonpublic school placement (IHO Ex. VI).  The district is required to implement a residential placement for the student, but has failed to do so.  In the absence of a residential placement secured by the district, the parent has demonstrated that the student has been attending Shrub Oak since November 7, 2024 (Req. for Rev. ¶ 15; see IHO Ex. II).

IHO 2 was faced with the predicament of trying to address the district's long-term failure to successfully follow the State's placement process for securing an approved residential school for the student, ideally within the State for LRE purposes and, failing that, then an approved school outside of the State.   In the October 15, 2024 decision, IHO 2 noted that the student had not yet attended Shrub Oak and indicated that it was not appropriate to rely on the Burlington/Carter standard but ordered the district to fund the costs of  Shrub Oak for the extended 2024-25 school year as prospective equitable relief, because the private placement had not yet occurred (IHO Ex. VI).  However, IHO 2 nevertheless utilized elements of the Burlington/Carter standard when determining whether to order prospective placement at Shrub Oak, finding that Shrub Oak was, under the totality of the circumstances, reasonably calculated to enable the student to receive educational benefits.

Faced with IHO 2's unappealed decision and largely the same situation for the next proceeding, IHO 3 appropriately realized that unappealed final decisions by IHOs awarding compensatory education much more often than not do not serve as a basis for pendency on a going forward basis.   In the context of compensatory education under the IDEA, a nuanced distinction exists between a decision that prospectively grants an entire program or placement and a decision that provides a finite 'bank' of services. When the dispute involves whether to rely on an unappealed IHO decision, compensatory relief resulting in a fully redesigned educational setting, rather than a limited bank of services, is more likely to be considered a pendency placement in the subsequent decision. One downside that must be weighed when an IHO crafts such broad prospective relief as a redesigned program as prospective relief instead of allowing the parties to collaboratively revise programming through the CSE process is that the district cannot be later faulted for implementing the IHO's decision ordering the prospective private placement, especially if matters then go poorly for the student when the prospective placement is realized.

Conversely, compensatory education ordered in an IHO decision in fixed banks of limited duration or quantity that does not contemplate the entirety of the student's educational programming going forward and merely supplements and stands alongside the programming designs of future IEP(s) by providing additional services to address past deficiencies is unlikely to serve as a basis for determining pendency or stay put in a subsequent proceeding (see Application of a Student with a Disability, Appeal No. 25-051; Application of a Student with a Disability, Appeal No. 20-197; Application of a Student with a Disability, Appeal No. 11-091). This type of compensatory education relief functions as a catch-up remedial measure only rather than a replacement of the statutory framework, thereby maintaining the integrity of the IEP process going forward.[4] It is crucial to recognize that not all compensatory education awards automatically confer pendency entitlements; each case must be evaluated on its specific facts and circumstances to determine the appropriate legal implications.

In this case, IHO 2 formulated the former, far broader type of compensatory education relief by ordering a prospective placement in an unapproved private residential school, Shrub Oak, for the entire 2024-25 school year, and this directive had neither the restricted qualities such a limited quantity of services or  a short duration, nor was the compensatory education merely an  extra portion of services to be provided along with a broader array services though an IEP to be delivered by public school teachers and related services providers (IHO Ex. VI). The one-year period specified by IHO 2 had the effect of suspending the implementation of any CSE-designed programs during the 2024-25 school year, and this entire revised arrangement was created by and endorsed by IHO 2 (id.).  When this decision went unchallenged by the district and the student attended Shrub Oak at district expense during the 2024-25 school year, it became the new status quo for stay-put purposes.  These events, taken together, could be relied on as the basis for the student's pendency placement when the parent filed for a due process proceeding on July 1, 2025, for the 2025-26 school year.  Although IHO 3 discussed many of the relevant details, not the least of which is that at the time of IHO 2's decision the student had not even attended Shrub Oak, IHO 3's reliance on cases involving limited compensatory education banks do not overcome the effect of the broader, all-encompassing change in placement that was effectuated by IHO 2's decision and the year-long placement of the student in that setting thereafter.

The resolution of the parent's challenge to the IHO's interim decision also resolves the district's cross-appeal, which is without merit.[5]

A. IHO Bias

With respect to the parent's allegation of IHO bias, the parent's contention on appeal in this respect are not within the scope of a permissible interlocutory appeal and, at this juncture, is outside the scope of my review.  State regulations governing the practice of appeals from the decisions of IHOs related to matters concerning the provision of a FAPE to a student with a disability limit appeals from an IHO's interim determination to those involving pendency (stay-put) disputes (8 NYCRR 279.10[d]; see Educ. Law § 4404[4]). To the extent that the parent appeals from IHO 3's interim decision, State regulation does not allow for an interlocutory appeal on issues other than the pendency dispute, the parent's appeal must be dismissed as premature (see Application of a Student with a Disability, Appeal No. 24-475; Application of a Student with a Disability, Appeal No. 24-385; Application of a Student with a Disability, Appeal No. 22-120; Application of a Student with a Disability, Appeal No. 18-075).

Here, the parent points to IHO 3's interim order on pendency to support her claim of IHO bias.  Specifically, the parent asserts that because IHO 3 was not inclined to grant the parent's requested interim relief, IHO 3 would not be inclined to grant the parent any final relief.  For this reason, the parent seeks to have this case remanded to a different IHO.  However, even if the appeal of this issue was permissible, it would fail.  The parent cannot point to anything in the record beyond IHO 3's interim decision on pendency to support her claim of bias.  Without additional information, the parent's request that this case be remanded to a different IHO seeks merely to avoid potential prejudice.  Such a speculative claim is insufficient to support a finding that IHO 3 exhibited bias in this matter.  Therefore, the parent's request that this matter be remanded to a different IHO is denied (see, e.g., Application of a Student with a Disability, Appeal No. 25-287 [denying the parent's request to remand the case to a different IHO where the parent alleged prejudice based on that the "'IHO's continued refusal to adhere to the SRO's guidelines"']; Application of a Student with a Disability, Appeal No. 25-131 [rejecting the parent's claim of IHO bias where "the parent did not identify any conduct of the IHO's that was related to the instant matter beyond unfavorable rulings").  If, as the merits phase of the proceeding continues, the parent continues to have concerns with the IHO 3's competence, impartiality, or professional conduct, the parent's attorney should address such concerns directly with the IHO on the record.  

VII. Conclusion

Having found that the district must fund the student's pendency placement at Shrub Oak as pendency and that the remainder of the parent's appeal is an impermissible interlocutory appeal the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's interim decision dated August 12, 2025, is modified by reversing that portion which denied stay-put funding for Shrub Oak; and

IT IS FURTHER ORDERED that the district shall fund the student's placement at Shrub Oak during the pendency of the proceedings.