I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which determined her son was not entitled to funding for private services under pendency for the 2022-23 school year.  The district cross-appeals.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has been the subject of a prior State-level administrative appeal, which related to the 2022-23 school year (Application of a Student with a Disability, Appeal No. 23-112).  The parties' familiarity with that matter is presumed, and, therefore, the student's educational history leading up to that matter will not be recited here in detail.

Briefly, a CSE convened on December 21, 2021, and developed an IESP for the student with a projected implementation date of January 13, 2022 (Parent Ex. B at p. 1).  At the time of the December 2021 CSE meeting, the student was parentally placed at a nonpublic school (id. at p. 12).  The December 2021 CSE found the student eligible for special education and related services as a student with a speech or language impairment (id. at p. 1).  The December 2021 CSE recommended that the student receive three periods per week of direct, group special education teacher support services (SETSS) in Yiddish, two 30-minute sessions per week of individual occupational therapy (OT) in English, and three 30-minute sessions per week of individual speech-language therapy in Yiddish (id. at p. 9).[1]^, [2]

A CSE also convened on November 17, 2022, to develop an IESP for the student with a projected implementation date of December 1, 2022 (Parent Ex. C at p. 1).  The November 2022 CSE continued to find the student eligible for special education and related services as a student with a speech or language impairment and recommended that he receive three periods per week of direct, group SETSS in Yiddish, two 30-minute sessions per week of individual OT in English, two 30-minute sessions per week of individual speech-language therapy in Yiddish, and one 30-minute session per week of group speech-language therapy in Yiddish (id. at p. 10).

During the 2022-23 school year, the student was parentally placed at a nonpublic school and received 1:1 special education services from Succeed Educational Support Services (Succeed) (Parent Exs. A at p. 1; G at pp. 1, 3).[3]

As noted above, the parent initiated an impartial hearing relating to the 2022-23 school year by filing a due process complaint notice on September 6, 2022 and a subsequent amended due process complaint notice on January 30, 2023 (Parent Exs. A at pp. 2-3; G at pp. 3-4).  According to the January 2023 amended due process complaint notice, the parent alleged that the district denied the student a free appropriate public education (FAPE) by failing to implement the special education and related services it recommended for the student for the 2022-23 school year and she was unable to find providers willing to accept the district's published rates (Parent Exs. E at pp. 2-3; G at pp. 3-4).  The parent invoked pendency based on the December 2021 and November 2022 IESPs (Parent Exs. E at p. 2; G at p. 4).  For relief, the parent requested district funding for the costs of the student's private services at the providers' prevailing rates and funding for "a bank of compensatory periods of SETSS and related services for the entire 2022-23 school year-or the parts of which were not serviced" (Parent Ex. E at p. 3).

The IHO in that matter (prior IHO) issued a final decision on May 9, 2023, which determined that the district denied the student a FAPE for the 2022-23 school year by failing to implement the services recommended in the December 2021 IESP but that there were questions as to the appropriateness of the unilaterally obtained SETSS and related services purportedly provided to the student by Succeed (Parent Ex. F at pp. 6-8).  Nevertheless, the prior IHO found that the parent was entitled to funding for the services recommended in the student's IESP for the 2022-23 school year and awarded district funding of services provided by Succeed albeit at rates that were reduced compared to the rates charged by the private providers; specifically, the IHO ordered district funding of SETSS at the rate of $105 per hour and OT and speech-language therapy services at a rate of $90 per hour (id. at pp. 6, 9).  The prior IHO did not address the parent's requests for pendency, stating that she had "reviewed [the p]arent's other requests and claims and f[ou]nd them either to be without merit, not supported by the record, not within [her] jurisdiction or beyond the scope of [her] authority" (id.).

The parent and the district appealed the May 2023 IHO decision (Parent Ex. G at p. 5).  The crux of the arguments on appeal was whether the IHO correctly awarded funding for the parent's unilaterally obtained services based on the parent's contractual obligation with Succeed, and whether the IHO correctly reduced the parent's requested rates of funding for her unilaterally obtained services (id.).  In Application of a Student with a Disability, Appeal No. 23-112, the SRO remanded the matter for further determinations because the prior IHO had failed to apply a Burlington/Carter analysis to the parent's claims and the ordered relief was not consistent with her other findings (Parent Ex. G at p. 6).  The SRO ordered the IHO on remand to "fully develop the hearing record on each issue that must be ruled upon" (id. at p. 11).  The SRO also noted that during the impartial hearing, the IHO determined it was unnecessary for her to issue a pendency order since the district was not contesting the parent's position on pendency (id. at p. 7).  The IHO's finding in this regard was not raised as an issue on appeal in Application of a Student with a Disability, Appeal No. 23-112.

The prior IHO issued a final determination after remand on November 10, 2023 (Parent Ex. H).  The prior IHO determined the private occupational therapy (OT) services reasonably served the student's needs but that the parent failed to show that the private SETSS and speech-language therapy services were appropriate under the Burlington/Carter and Frank G. analysis (id. at p. 9).  The prior IHO also determined that equitable considerations supported the parent's requested relief and ordered the district to fund the OT services delivered to the student during the 2022-23 school year at a rate of $350 per hour (id. at pp. 10-12).  Neither party appealed from the November 2023 IHO decision and the time to initiate an appeal has lapsed.[4]

A. Due Process Complaint Notice

In a due process complaint notice dated November 29, 2024, the parent alleged that the issue related to the student's pendency placement during the prior proceeding involving the 2022-23 school year remained "outstanding" (see Parent Ex. A).  Specifically, the parent alleged that pendency was separate and distinct from the underlying merits of her prior case involving the 2022-23 school year and that she was not prohibited from seeking relief stemming from her automatic right to pendency regardless of whether she prevailed on the underlying merits (id. at p. 5).  Accordingly, the parent requested an order "stating clearly" that the student was entitled to pendency for the period starting September 6, 2022 and ending June 30, 2023, consisting of district funding for three 60-minute periods per week of SETSS, three 30-minute sessions per week of speech-language therapy, and two 30-minute sessions per week of OT for the 2022-23 school year (id.).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 22, 2025 and concluded on February 25, 2025 after two days of proceedings including a prehearing conference (see Tr. pp. 1-8).[5]  In a decision dated March 21, 2025, the IHO noted that a student's automatic right to pendency attaches when there is an underlying due process claim but found that there was no such claim in this matter (IHO Decision at p. 4).  The IHO found that the parent was solely seeking an order on pendency but that "[t]he proper channel" for the parent to implement pendency would have been to appeal the prior IHO's November 2023 decision that did not address pendency (id. at p. 4).  The IHO determined she had no authority "to issue a sole pendency order" and that the student was not entitled to pendency in the underlying case (id. at pp. 4-5).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in determining the student was not entitled to district funding for private services provided to the student from September 6, 2022 to November 10, 2023 by virtue of the district's pendency obligation.  The parent requests an order directing the district to find the student's SETSS, speech-language therapy, and OT services at the contracted rates during the period of time in which he was entitled to pendency.[6]

The district in an answer with cross-appeal argues that the IHO correctly determined that the student was not entitled to a pendency order for the 2022-23 school year.  As for a cross-appeal, the district argues the IHO erred by not dismissing the student's due process complaint notice with prejudice.

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]).[7]  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

Here, as correctly determined by the IHO, there is no underlying proceedings relating to the identification, evaluation or placement of the student as the parent already adjudicated such claims and received a final decision on the merits that went unappealed by both parties (see Parent Ex. H).

In the prior matter, the issue of identifying the student's pendency placement was before the IHO and the parent did not appeal from the IHO's ruling or failure to rule on the issue in that matter (8 NYCRR 279.4[a]).  According to the prior IHO, the district did not disagree with the parent that the student's pendency program was based on the December 2021 and November 2022 IESPs which recommended similar programs (Parent Exs. E at p. 2; G at pp. 4, 7; see Parent Exs. B; C).  Therefore, the prior IHO did not find further orders on pendency to be necessary.  As noted above, the parent did not appeal from the prior IHO's ruling or failure to rule on pendency in the underlying matter related to the 2022-23 school year.  Any attempt at this juncture to challenge the prior IHO's decisions, issued before or after remand, greatly exceeds the 40-day timeframe for commencing an appeal in State regulations and is therefore not properly before me (see 8 NYCRR 279.4[a]).  Thus, to the extent the parent alleges that the prior IHO "did not address Pendency" on remand despite the SRO's directive to "address all claims" (see Req. for Rev. at p. 2), such a claim was not timely stated in an appeal from the prior IHO's decision.  Accordingly, any claim directed at the identification of the student's stay put placement is not properly before me.[8]

Although the parent attempts to frame the issue in this matter as related to the district's failure to implement the student's pendency placement during the prior proceeding, upon closer review, the parent's arguments go to identifying the pendency placement and, therefore, are not properly raised outside of the prior matter.[9]  In this appeal, the parent asserts that "there is no question that the last agreed upon program lies in the above-referenced IESP[s]," namely the December 2021 and November 2022 IESPs, and that the student "was entitled to funding for all services pursuant to his automatic right to pendency" (see Req. for Rev. at p. 3).  However, the position that the student was entitled to district funding of private services does not flow from the statement that the student's IESPs formed the basis of pendency.

Rather, the Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35).  The Court observed that:

If a parent disagrees with a school district's decision on how to provide a child's educational program, the parent has at least three options under the IDEA: (1) The parent can argue that the school district's decision unilaterally modifies the student's pendency placement and the parent could invoke the stay-put provision to prevent the school district from doing so; (2) The parent can determine that the agreed-upon educational program would be better provided somewhere else and thus seek to persuade the school district to pay for the program's new services on a pendency basis; or (3) The parent can determine that the program would be better provided somewhere else, enroll the child in a new school, and then seek retroactive reimbursement from the school district after the IEP dispute is resolved

(id. at 534).

Here, it appears that the parent elected the equivalent of the third option when she unilaterally obtained private services at her own financial risk without the consent of the school district.  Ultimately, after a decision on the merits, the parent did not prevail on all relief sought.  However, even if the parent claimed some agreement with the district that it fund private services delivered to the student by Succeed pursuant to pendency, i.e., per the second option above, the time to assert such a position was in the prior matter in which the substance of the parent's claims were at issue.  As it stands, the prior IHO acknowledged agreement between the parties that the student's pendency placement lay in the IESPs (Parent Exs. E at p. 2; G at p. 7), the IESPs contemplated the district's provision of the services, and the parent did not appeal the pendency issue in the prior matter.  Accordingly, I find no basis to disturb the IHO's decision in this matter.

As a final matter, the district argues that the IHO erred by not dismissing the parent's due process complaint with prejudice; however, the IHO's decision specifically denied the parent's request for relief and made no mention of the matter being disposed of without prejudice or to any future avenue for the parent to purse the same relief through another due process proceeding (see IHO Decision).  As I do not find that the district was aggrieved by the IHO's decision, the district's cross-appeal in this regard is dismissed.

VII. Conclusion

Having found that the request for review must be dismissed because the parents failed to timely initiate an appeal of the prior IHO's ruling or failure to rule on pendency in the proceeding that gave rise to pendency, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.