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 a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Yeled v'Yalda (Yeled) for the 2024-25 school year.  The district cross-appeals from the IHO's pendency determination.  The appeal must be sustained in part.  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

According to the parent, the student received a diagnosis of autism at almost three years of age and presented with cognitive, social, and gross and fine motor delays and "attentional issues" (Parent Ex. I ¶ 3).

A Committee on Preschool Special Education (CPSE) reconvened on July 19, 2022 after meeting on January 4, 2022, continued to find the student eligible for special education and related services as a preschool student with a disability, and developed an IEP with a projected implementation date of September 6, 2022 (Parent Ex. D at pp. 1, 2, 3, 15).[1]  The July 2022 CPSE recommended that the student receive 12-month services consisting of 12 hours per week of direct 1:1 special education itinerant teacher (SEIT) services, one 60-minute session per week of indirect SEIT services, four 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual occupational therapy (OT), one 30-minute session per week of group OT, and two 30-minute sessions per week of individual physical therapy (PT), to be delivered at an early childhood program selected by the parent (id. at pp. 1, 15-16).[2]  The CPSE also recommended one 60-minute session per month of parent counseling and training to be delivered on a 10-month basis (id. at pp. 1, 15).

According to a December 25, 2023 progress report, the student attended a preschool early childhood center operated by Yeled (Dist. Ex. 5 at p. 1).  The student's mother described the student's program for the 2023-24 school year as "a mainstream preschool with significant support" (Parent Ex. I ¶¶ 3-4).  According to the parent, the student's SEIT services utilized the applied behavior analysis (ABA) methodology (Parent Ex. I ¶ 8).

The student was reevaluated by the district as part of the "Kindergarten IEP Process," which included a March 12, 2024 psychoeducational evaluation, a March 12, 2024 classroom observation, and a May 15, 2024 teacher survey (Dist. Exs. 1 at pp. 1, 4, 5; 4 at p. 1).

A CSE convened on May 23, 2024, determined the student was eligible for special education and related services as a student with autism, and developed an IEP for the student with a projected implementation date of September 2, 2024 (Dist. Ex. 1 at pp. 1, 30-31, 36).[3]  The May 2024 CSE recommended that the student receive 10-month services consisting of a 12:1+1 special class in a non-specialized school for 15 periods per week of English language arts (ELA), five periods per week of math, and two periods per week of social studies instruction, along with the related services of two 30-minute sessions per week of individual OT, one 30-minute session per week of group OT, two 30-minute sessions per week of individual PT, four 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group counseling services (id. at pp.  30-31, 36-37).  Additionally, the CSE recommended special transportation and one 60-minute session per month of group parent counseling and training (id. at pp. 30, 35-36, 37).

By prior written notice dated May 30, 2024, the district informed the parent of the May 2024 CSE's recommendations, which included the evaluative information considered, the other service and placement options considered, and a summary of the meeting discussions (Dist. Ex. 2 at pp. 1-4).  The May 30, 2024 prior written notice also indicated that a school location letter would be sent separately (id. at p. 2).  By prior written notice dated June 26, 2024, the district informed the parent of the public school site to which the student had been assigned for the 2024-25 school year (Dist. Ex. 3 at pp. 1-4).

By letter dated August 30, 2024, the parent provided the district with 10-day notice of her disagreement with the recommendations of the May 2024 CSE, and of her intention to unilaterally obtain 1:1 special education services and related services and to seek public funding for the costs of same (Parent Ex. B at pp. 1-2).[4]

On September 2, 2024, the parent entered into a contract with Yeled to provide the student with "[s]pecial [e]ducation and/or [r]elated [s]ervices" for the 2024-25 school year from September 1, 2025 through June 30, 2025 (Parent Ex. E; see Parent Ex. G).[5]  The terms of the contract specified that Yeled charged a rate of $205 per hour for special education services and a rate of $275 per hour for related services (Parent Ex. E).

The student attended a general education kindergarten class in a nonpublic school for the 2024-25 school year (Parent Ex. J ¶ 7).  The student received 12 hours per week of 1:1 special education support and one hour per week of indirect special education support (id.; see Parent Ex. F ¶ 2).  In addition, the student received related services consisting of four 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT (Parent Ex. J ¶ 8; see Parent Ex. F ¶ 2).

A. Due Process Complaint Notice

In a due process complaint notice dated September 13, 2024, the parent, through her attorney, alleged that the May 2024 IEP was procedurally and substantively invalid (Parent Ex. A at p. 1).  The parent alleged that the May 2024 CSE was invalidly composed, that the May 2024 IEP included insufficient goals and objectives and that the goals could not be reasonably obtained in the district's proposed program, that the process by which the May 2024 CSE was conducted failed to comply with appropriate procedure, and that the CSE failed to appropriately review and consider the evaluative data, which resulted in an IEP that failed to sufficiently describe the student and his level of need (id.).  The parent asserted that the May 2024 CSE's recommendation of a 12:1+1 special class in a community school was inappropriate and too restrictive, as the student had been receiving 12 hours per week of 1:1 special education support using ABA methodology, and an additional one hour of indirect special education support, which had been critical in allowing the student to "remain mainstreamed and make ongoing progress," and would have allowed the student to better develop his language and social skills if continued (id. at pp. 1-2).

The parent alleged that all of the information provided at the CSE meeting, both written and verbal, indicated that the student required a continuation of 1:1 special education support with ABA methodology (Parent Ex. A at p. 2).  The parent argued that the May 2024 CSE "copied" all of the student's provider reports, with the exception of the ultimate recommendations for a "continuation of [the student's] SEIT and related services," thereby making the proposed goals in the May 2024 IEP not realistic or obtainable (id.).  The parent alleged that it appeared that the CSE could not offer the same 1:1 program from the prior CPSE IEP due to the student's age and due to a policy requirement of the district's (id. at pp. 1-2).  The parent also asserted that the CSE "appear[ed] to have terminated [the student's] 12 month programming without any support for this change" (id. at p. 2).  The parent also alleged that she did not receive the June 26, 2024 school location letter until July 1, 2024, after schools had closed for the summer, and that the district did not respond to her attempts to schedule a visit until after the start of the 2024-25 school year (id.).  The parent contended that the proposed school location did not have appropriate peer grouping opportunities for the student, and that the location failed to provide any ABA support, which was necessary for the student (id.).

The parent alleged that she had no choice "but to seek to continue [the student's] 1:1 special education and related services at [district] expense" (Parent Ex. A at p. 2).  As relief, the parent invoked pendency based on the July 19, 2022 CPSE IEP and sought funding for 12 hours per week of direct 1:1 special education services, one hour per week of indirect 1:1 special education services each at a rate of $205 per hour, four 30-minute sessions per week of speech-language therapy, three 30-minute sessions per week of OT, two 30-minute sessions per week of PT, and parent counseling and training, all to be funded at an enhanced rate (id. at p. 2).

B. Impartial Hearing Officer Decisions

An IHO from the Office of Administrative Trials and Hearings (OATH) was appointed to preside over this matter on September 18, 2024, and the parties convened before the IHO for a prehearing conference on October 24, 2024 (Tr. pp. 1-12; IHO Decision at p. 3).

In a November 26, 2024 interim decision on pendency, the IHO determined that the student was entitled to pendency services based on the student's last agreed-upon program, which was a July 19, 2022 CPSE IEP (Nov. 26, 2024 Interim IHO Decision at p. 1).[6]  The IHO found that the student was entitled to 12-month services consisting of 12 hours per week of direct, 1:1 SEIT services, one hour per week of indirect SEIT services, four 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, one 30-minute sessions per week of OT in a group of two, two 30-minute sessions per week of PT in a group of two, and one 60-minute session per month of parent counseling and training to be delivered on a 10-month basis (id. at p. 1).  The IHO ordered the student's pendency services to be delivered by a provider of the parent's choosing and indicated that it would be retroactive to the date of filing of the due process complaint notice, and would end at the conclusion of due process proceedings (id. at p. 2).  The IHO initially noted that the district did not contest the student's pendency services, however, the IHO also noted that the district argued that the parent did not have the right to assert pendency and seek the provision of services in the provider of the parent's choosing (id. at p. 1). The IHO found that the district, despite its contentions, failed to recommend or provide the parent with a provider to implement pendency services, and that, as there was no dispute as to the student's entitlement to pendency services, the district could "not then restrict how [the p]arent [could] go about procuring the services that the district [did] not dispute [the s]tudent's entitlement to" (id. at pp. 1-2).

The parties convened for an impartial hearing on December 9, 2024, which concluded on the same day (Tr. pp. 13-83).  In a decision dated January 29, 2025, the IHO found that the student was not entitled to the preschool services the parent requested, as the student was school-aged, and also found that the student was not entitled to the services the parent requested because the student was enrolled in a private school, rendering him ineligible for services under the IDEA (IHO Decision at p. 3).[7]  With respect to the student's status as school-aged, the IHO found that students who were school-aged were no longer entitled to the services offered in "preschool IEP programs" (id. at p. 5 citing Educ. Law § 3202[1]).  The IHO found that, therefore, the student was no longer entitled to the services recommended in the prior CPSE IEP, despite the parent's requests (IHO Decision at p. 5).  With respect to the IHO's findings related to the student's enrollment at a private school, the IHO found that "students attending private schools [were] not entitled to relief under the IDEA, and school districts ha[d] no obligation to provide these [s]tudents with special education programs" (id. citing 34 CFR § 300.137[a]).  The IHO found that "this [was] not a case wherein [the p]arent ha[d] unilaterally placed [the s]tudent in a private school, seeking the implementation of a special education program offered by that school," but rather that a private agency, unrelated to the student's private school, was providing special education services (IHO Decision at p. 5).  The IHO found that the district had no obligation to provide the student with special education services, and that the parents had no basis for their requests otherwise (id. citing 34 CFR § 300.137[a]).  The IHO denied the parent's requested relief in its entirety (IHO Decision at pp. 3, 5).

IV. Appeal for State-Level Review

The parent appeals, alleging, among other things, that the IHO erred in finding that the student was not entitled to relief as a student enrolled in a private school.  Specifically, the parent contends that she could seek relief under the IDEA because the CSE created an IEP for the student in May 2024.  The parent argues that the student was not enrolled in a private school until the district offered an inappropriate program and failed to offer the student a FAPE.  The parent further contends that the IHO's interpretation of regulations were in direct contradiction to established judicial precedent, and that she was also not required to seek an IESP or tuition reimbursement in order to properly seek relief.  The parent also contends that merely because the student's special education services were provided by a private agency, rather than the private school itself, it should not have affected a determination on what equitable remedy would have been appropriate.  The parent makes an additional related contention when discussing equitable considerations, in that she contends that a 2023-24 progress report offered by the district as district exhibit 5 in the hearing record was mistakenly labeled as "Unilateral Placement Progress Report" by the IHO in the decision's exhibit list, and that, the IHO made an error of fact as he was under the wrong impression as to which type of school the student attended for the 2023-24 school year.  The parent, therefore, contends that the student should not be treated as a parentally placed child.   The parent additionally contends that it was error for the IHO to not issue a finding on whether the district offered a FAPE to the student, and that the district did not sufficiently support its contention that it offered the student a FAPE for the 2024-25 school year.[8]  The parent alleges that the district did not call any witnesses or experts to meet its burden, but rather the district relied on documentary evidence that was insufficient.  The parent further contends that the May 2024 IEP lacked any specific analysis to support the recommendation for a 12:1+1 special class, rather than a general education classroom with 1:1 assistance.  The parent also contends that the district failed to demonstrate that the recommended 12:1+1 special class constituted the student's least restrictive environment (LRE).  The parent also alleges that the IHO erred in not issuing findings on the appropriateness of the unilateral placement and on equitable considerations.[9]  The parent requests declaratory relief consisting of findings that the district did not offer the student a FAPE, that the student's educational plan of 1:1 special education services with ABA methodology and related services at the private school are appropriate, and that equitable considerations warrant an award of full funding for the parent's unilaterally obtained services.  As additional relief, the parent requests direct funding of the 1:1 special education services and related services of speech-language therapy, OT, PT, and parent counseling and training.

In an answer and cross-appeal, the district argues that the parent failed to meet her burden to demonstrate that her unilaterally obtained services were appropriate.  The district further contends that there is no evidence in the hearing record to demonstrate that the placement of the student in a general education classroom with special education services was appropriate to meet the student's needs.  Finally, the district asserts that the IHO erred in his pendency determinations and requests that the interim decision on pendency be annulled.  Specifically, the district objects to the provisions permitting the parent to obtain pendency services from providers of her choosing.  The district asserts that it has the right to implement the student's pendency services.  The district also contends that, as the parent unilaterally placed the student, the parent rejected the program contained in the CPSE IEP, which formed the basis for the student's pendency services.[10]

In an answer to the cross-appeal, the parent argues that the district's request for annulment of the IHO's interim decision on pendency be denied.  The parent alleges that under certain circumstances the district may determine how and where to implement pendency, however, in this matter, the district has failed to make any attempt to implement pendency services and should not be permitted to do so.  The parent also argues in support of the contentions raised in her request for review.

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 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]).[11]

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

A. Preliminary Matters

I first turn to standing as a preliminary matter.  For the reasons set forth below, I find that the IHO incorrectly dismissed the parent's due process complaint notice by improperly finding that she was ineligible to seek relief through due process proceedings.

The IHO found that the student was not entitled to the services the parent requested because the services were "preschool based services" and the student was school-aged, enrolled in a private school and, therefore, not entitled to services under the IDEA (IHO Decision at p. 3).  In analyzing the parent's claims, the IHO determined that the parent sought to implement a July 2022 CPSE IEP (id. at p. 5).  As a result, the IHO did not address any of the parent's claims raised in her due process complaint notice that challenged the appropriateness of the May 2024 IEP for the student for the 2024-25 school year, nor did the IHO address whether the unilaterally obtained services were appropriate for the student.  Although not termed as standing, such a dismissal prior to addressing the merits of the parent's claims, is essentially a determination that the parent lacks standing to bring the claim.

Under the IDEA and State law, a parent is entitled to an impartial hearing regarding "any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child" (20 U.S.C. § 1415[b][6][A]; Educ. Law § 4404[1]; Winkelman, 550 U.S. at 531). The parent was therefore entitled to file a due process complaint notice asserting that the district had failed to offer the student a FAPE on the basis that the May 2024 CSE had not complied with the procedural requirements set forth in the IDEA, or that that the May 2024 IEP was substantively inadequate and not reasonably calculated to enable the student to receive appropriate educational benefits (see Winkelman, 550 U.S. at 531, 533; 34 CFR 507[a]; 8 NYCRR 200.5[i]).

Although courts have disagreed on what is sufficient to confer standing on a parent to bring a claim under the IDEA, the only courts to have addressed this issue in New York have found that the denial of a FAPE or of a procedural right created by the IDEA is sufficient to satisfy the "injury in fact" requirement of standing (S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 358-59 [S.D.N.Y.2009] [finding that a denial of a FAPE constituted an injury in fact which was redressable by public payment of the costs of student's tuition]; see E.M. v. New York City Dep't of Educ., 2011 WL 1044905, at *6 [S.D.N.Y. March 14, 2011] [finding a denial of a FAPE or a procedural right under the IDEA was a statutorily created injury in fact sufficient to satisfy standing requirements]; see also Heldman v. Sobol, 962 F.2d 148, 154-56 [2d Cir. 1992] [holding that the IDEA created statutory rights, the violations of which may constitute injuries in fact]; Fetto v. Sergi, 181 F. Supp. 2d 53, 66 n.22 [D. Conn. 2001] [finding a denial of a FAPE was a statutorily created injury in fact]; but see Malone v. Nielson, 474 F.3d 934, 937 [7th Cir. 2007] [holding that parents lacked standing on claim for reimbursement for services where student's estate, rather than parents, had actually expended resources]; Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 [4th Cir. 2005] [finding a denial of a FAPE as an injury in fact was not redressable by tuition reimbursement, as the student's education had already been paid for by the parent's insurance carrier]; Piedmont Behavioral Health Ctr. LLC v. Stewart, 413 F. Supp. 2d 746, 755-56 [S.D. W.Va. 2006] [finding that the student and parent lacked an injury in fact because the private school had paid for education of student rather than student or parent]).

In this instance, review of the hearing record indicates that prior to the May 2024 CSE meeting, the district had last convened a CPSE in July 2022 to develop an IEP for the student (Parent Ex. D at pp. 1-18; Dist. Ex. 1 at pp. 1-39).  The hearing record reflects that for the 2023-24 school year, the parent continued to enroll the student at an early childhood center and obtained the services recommended in the July 2022 CPSE IEP (Dist. Ex. 5 at p. 1).  For the 2024-25 school year—the student's turning five year—the district conducted a reevaluation and developed an IEP on May 23, 2024 with an implementation date of September 2, 2024 (Dist. Ex. 1 at pp. 1-16).  The parent notified the district of her disagreement with the recommendations of the May 2024 CSE in a 10-day notice letter dated August 30, 2024.  The parent also indicated that if the district did not develop an appropriate program for the 2024-25 school year, she would continue to obtain 1:1 special education services and related services and seek public funding (Parent Ex. B at pp. 1-2).  The parent entered into a contract to obtain those services from Yeled on September 2, 2024 (Parent Ex. E at p. 1).

Consistent with the court's determinations in S.W. and E.M., the parent's request for public funding of the costs of the student's private special education and related services would redress the denial of a FAPE to the student in circumstances where Yeled has provided such services to the student and those services are found to be appropriate (see S.W., 646 F. Supp. 2d at 359; E.M., 2011 WL 1044905 at *6).  Accordingly, any inquiry regarding standing ends there (S.W., 646 F. Supp. 2d at 359; E.M., 2011 WL 1044905 at *6).  The IHO should have addressed the parent's allegations related to the May 2024 IEP and, if the IHO found that the district did not offer the student a FAPE, the IHO should have then determined whether the services delivered to the student at the nonpublic school were appropriate to meet the student's needs.

In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement.  Instead, the parent alleged that, as a self-help remedy, she unilaterally obtained private services for the student from Yeled without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student 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 parent's claim (Carter, 510 U.S. 7; 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. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).  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 v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "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 IHO erred in failing to apply a Burlington/Carter analysis to the parent's claims and erred by failing to determine whether or not the May 2024 IEP offered the student a FAPE.  The IHO's determination that the student was not entitled to a FAPE must be reversed.

B. May 2024 IEP

In her request for review, the parent argues that the district did nothing to demonstrate that a 12:1+1 special class was appropriate for the student.  More specifically, the parent alleges that the district never identified why a 12:1+1 special class was more appropriate than a general education classroom with 1:1 assistance, never identified how such a classroom was the LRE for the student and further, the district offered no explanation as to why it recommended an educational plan that was "different and inferior to the plan that had been prove[n] to work and was less restrictive" (Req. for Rev. at p. 6).  The parent further asserts that the district offered only documentary evidence and did not call any witnesses in support of the May 2024 CSE's recommendations.  As a result, the parent contends that the district did not meet its burden to establish that it offered a FAPE to the student for the 2024-25 school year.

The burden of production and persuasion has been shifted under State law to a district to show that it offered a student a FAPE (Educ. Law § 4404[1][c]).[12]  In Endrew F., the Supreme Court held that the "reviewing court may fairly expect [school] authorities . . .  to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances"(580 U.S. at 404).  However, neither the IDEA, State Law, nor case law provides that a district fails to meet its burden of proof simply because the evidence produced does not consist of witness testimony and instead, each party has the right to "[p]resent evidence and confront, cross-examine, and compel the attendance of witnesses" (34 CFR 300.512 [a][2]).  Because there is a right to present documentary evidence, the documentary evidence must be discussed as it relates to the disputed issues because a district could prevail on some or all of the disputed issues related to a FAPE for a student by producing evidence consisting of documentary evidence.  An IHO is required to conduct a fact-specific analysis in order to determine whether a district offered the student a FAPE and a district must ensure that the hearing record includes evidence addressing the particular issues raised by the parents in their due process complaint notice.  The sufficiency of the evidence presented should be determined after weighing the relative strengths and weaknesses of the parties' evidence in light of the allegations and the relevant legal standards.  To be clear, there is no procedural requirement that a district call witnesses at the impartial hearing in order to address the parent's due process complaint notice, especially if the district submits the extensive documentation that is required under the procedures of the IDEA itself.[13]  Thus, while documentary evidence alone may be sufficient for the district to meet its burden, that evidence must adequately provide a cogent and responsive explanation for the recommendations in the IEP in the context of the disputed issues related to a FAPE for a student.

Turning to the parent's claims that the district failed to provide a cogent explanation for its program recommendations, specifically that the district did not offer the student a FAPE in the LRE, review of the hearing record supports the parent's contention.

According to the hearing record, the participants in the May 2024 CSE meeting included a related service provider/special education teacher, a school psychologist who also served as the district representative, a preschool regular education teacher, a SEIT provider, a Yeled special education supervisor, a SEIT supervisor, and both parents (Dist. Ex. 1 at p. 39).  A review of the May 2024 IEP shows that the CSE considered and incorporated information from a December 2023 SEIT progress report, a January 2024 OT progress report, a March 2024 PT progress report, a March 2024 speech-language therapy progress report, a March 2024 classroom observation, a March 2024 psychoeducational evaluation, a May 2024 social history update, and a May 2024 teacher survey, as well as recorded parent concerns that were expressed during the CSE meeting (Dist. Ex. 1 at pp. 1-14; see Dist. Exs. 4; 5).[14]  The May 2024 IEP also incorporated then-current evaluative information considered by the CSE, which reflected many developmental areas and described the student's skills and needs (see Dist. Ex. 1 at pp. 1-14).  Additionally, the May 2024 IEP indicated that the student's "testing, teacher reports and data were reviewed" by the CSE (id. at p. 10).

In addition to incorporating the evaluative information about the student, the May 2024 IEP included 14 single spaced pages of present levels of performance information about the student's cognitive, academic, behavioral, social, and physical performance and needs, that were primarily based on recent information obtained about the student from December 2023 through May 2024 (see  Dist. Ex. 1at pp. 1-14).  Overall, a review of the May 2024 IEP present levels of educational performance shows that they were reflective of the evaluative information available to the CSE and provided sufficient information regarding the student's skills and needs to develop his annual goals and program recommendations (id.).  Notably, the parties do not dispute the adequacy of the evaluative information before the CSE or the description of the student's present levels of performance as of the May 2024 CSE meeting, rather the parent contests the conclusions that the CSE should have drawn from the available information.

Teacher reports reflected in the May 2024 IEP indicated that the student required support in the general education classroom (see Dist. Ex. 1 at pp. 10-11).  For example, the teacher stated that the student "participate[d] in classroom activities, but many times need[ed] prompting and modeling to help him share, to work in a group, or to create a plan" and that he "need[ed] support in helping work with his friends" (Dist. Ex. 1 at p. 10).  When asked whether the student could function in a general education classroom, the classroom teacher replied that "[h]e would probably need a[]lot of support to navigate a regular classroom at this time, because he c[ould] get super focused on an unrelated thought or issue in the class and without intervention it would be difficult for him to return his focus to the task or lesson on hand" (id. at p. 11).  Additionally, the teacher reported that the student "like[d] to talk to his friends and be around them, but need[ed] prompting and modeling to navigate social relationships successfully" and he "need[ed] assistance in staying focused during learning time as he [wa]s easily distracted" (id.).

However, according to the December 2023 SEIT progress report reflected in the May 2024 IEP, while in a general education setting with 1:1 support, the student demonstrated pre-academic skills such as counting by rote and with 1:1 correspondence up to 10, identifying alphabet letters, writing his name, and completing independent tasks with minimal prompting (Dist. Ex. 1 at p. 5).  By May 2024, the student was able to match, sort, and name colors and shapes, understand quantitative and positional concepts, name numbers 0-10, count by rote up to 80, match upper and lowercase letters, recognize all upper case and many lowercase letters, identify a number of beginning consonant sounds, read his own name and the names of others, and recite days of the week/months of the year (see id.).

The student had made progress in his ability to listen to a story during circle time, stay focused on the circle time lessons with minimal prompting, "place objects in correct prepositional positions," and engage in activities that he found frustrating without struggling as much (Dist. Ex. 1 at pp. 5-6, 12-13).  The IEP indicated that the student had made "moderate progress" in his receptive language, articulation and speech intelligibility, and social pragmatic skills (id. at p. 8).  Additionally, the student's progress in the area of expressive language included improved ability to communicate in complete sentences and phrases with adults and peers, ask and answer questions, request and reject items, and comment on events and things in his environment and in different settings (id.).  Socially, the IEP reflected that the student had made progress in his ability to play games with rules, and demonstrated the ability to respond and greet others, ask for help when needed, and attend to and complete a simple task (id. at p. 11).[15]

A classroom observation included in the May 2024 IEP reflected that the student used those skills in the classroom; mainly, that he was observed to respond appropriately to a statement made by a peer, respond to his SEIT provider's greeting and ask her a question about his schedule, put toys away upon request from the classroom teacher, follow most of the teacher's directions during group circle time, and display appropriate actions following verbal cues and reminders from his teacher (Dist. Ex. 1 at p. 4).  Of note, the student initiated verbal interactions with a peer during breakfast, initiated a greeting with a peer who had entered the classroom, ceased a behavior when a peer asked him too, and attempted to join in conversations with peers by stating "excuse me I want to tell you something" (id. at pp. 4-5).

Additionally, review of the May 2024 IEP shows that the CSE developed approximately 15 annual goals addressing the student's academic, receptive and expressive language, phonemic awareness, phonological processing, conversation, self-regulation, frustration tolerance, graphomotor, fine motor, and gross motor skill deficits and balance needs as identified in the present levels of performance (compare Dist. Ex. 1 at pp. 18-29, with Dist. Ex. 1 at pp. 1-14).  The annual goals included criteria to determine if the goal had been achieved (e.g. 80 percent accuracy in consecutive trials, 75 percent in three out of five consecutive trials), methods of how progress would be measured (e.g. class activities, teacher observations, performance assessments), and the schedule when progress would be measured (e.g. one time per month, one time per quarter) (Dist. Ex. 1 at pp. 18-29).

To address the student's needs, the May 2024 CSE recommended that the student receive 10-month services consisting of a 12:1+1 special class in a non-specialized school for 15 periods per week of English language arts (ELA), five periods per week of math, and two periods per week of social studies instruction, along with the related services of two 30-minute sessions per week of individual OT, one 30-minute session per week of group OT, two 30-minute sessions per week of individual PT, four 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of group counseling services (Dist. Ex. 1 at pp.  30-31, 36-37).  Additionally, the CSE recommended special transportation and one 60-minute session per month of group parent counseling and training (id. at pp. 30, 35-36, 37).

State regulation provides that "the maximum class size for special classes containing students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students, shall not exceed 12 students, with one or more supplementary school personnel assigned to each class during periods of instruction" (8 NYCRR 200.6[h][4][i]).[16]  The parent argues that the student had been successful in a general education classroom with 1:1 support and that the district's recommendation for  a 12:1+1 special class was not the student's LRE.[17]

In describing the effect of the student's needs on his involvement and progress in the general education curriculum, the May 2024 CSE determined that the student "benefit[ted] from a smaller classroom environment in order to help provide him with the individualized attention which help[ed] him succeed," and that "[w]ith modifications and accommodations, he c[ould] access the general education curriculum" (Dist. Ex. 1 at p. 16).  Due to the student's academic, communication, social skills and behavioral needs, the CSE determined that the student required a 12:1+1 special class placement with related services (id.).

The May 2024 IEP also indicated that the student would be able to access the general education curriculum with the support of a 12:1+1 special class, speech-language therapy, OT, PT and counseling (Dist. Ex. 1 at p. 35).  According to the IEP, the CSE considered other programming options for the student, including general education, related services only, SETSS, and integrated co-teaching (ICT) services, which were "ultimately rejected as [the student] ha[d] a diagnosis of Autism Spectrum and as such need[ed] [s]pecial education setting (12:1:1) in order to support him with his academics," noting that he "benefit[ted] from a smaller classroom environment in order to help provide him with the individualized attention which help[ed] him succeed academically" (id. at p. 38).  The prior written notice indicated that "[i]n a[n] ICT class or SETSS class, there would be too many students and would not be supportive enough for [the student] at this time" (Dist. Ex. 2 at p. 3).

Notably absent from the hearing record and the May 2024 IEP, however, is an explanation as to what extent the May 2024 CSE considered additional supports that could have been offered to the student in a general education class where ICT and/or SETSS were delivered—classrooms that would have had a special education teacher in addition to the regular education teacher—such as paraprofessional services and 1:1 instruction (see Dist. Exs. 1; 2; 6).  This absence is especially apparent given the parent's expressed concerns at the time of the CSE meeting regarding the restrictiveness of the recommended placement, and given the evidence in the hearing record that the student previously progressed in a general education setting with 1:1 support.

Upon review, the May 2024 IEP did not describe the student's opportunities to interact with nondisabled peers.  Among the parents' concerns expressed during the CSE meeting were the student's struggles with having proper conversations and with appropriate peer interactions (Dist. Ex. 1 at pp. 12, 38).  In her August 30, 2024 10-day notice, the parent asserted that a 12:1+1 special class was too restrictive for the student and further argued that "when provided appropriate 1:1 support, [the student wa]s able to handle a mainstream class and benefit from mainstream role models" (Parent Ex. B at p. 1).  The parent also stressed that "[a]s a student with Autism, social opportunities and mainstream peers [we]re crucial to helping [the student] to develop his language and social skills" (id.).  During the impartial hearing, the parent testified that she did not object to the number of students in the classroom, but rather whether the classroom offered an environment where the student had "models" and in which he could "grow" (Tr. pp. 68-69).  The parent testified that the student had been in a "class with mainstream students" where he received "one to one special education help, and with that help, he was able to be part of that classroom and he was able to model after his peers, peers modeled for him" (Tr. pp. 63-64).  She continued that the student was "able to interact with them and talk with them and that was helping his growth . . . he was improving and he was growing in that environment" (Tr. p. 64; see Tr. pp. 67-68).

By solely presenting documentary evidence in this matter, the district did not refute the parent's reasons for rejecting the recommendation for a 12:1+1 special class.  Specifically, the district's evidence did not indicate whether or how the student would have had access to typical peer models.  As such, the district did not meet its burden to demonstrate that its recommended program offered the student a FAPE in the LRE.  The hearing record supports the parent's position that given the student's cognitive functioning and emerging academic skills, he required typical peer models in the classroom.

Here, while a 12:1+1 special class recommendation was not unreasonable in light of the student's deficits, it is unclear to what extent the May 2024 CSE considered whether the student could attend a general education classroom with additional support, in order for the student to be educated with his nondisabled peers to the maximum extent possible.  The district did not put forth a sufficient explanation during the impartial hearing as to why a general education placement was rejected, nor was a sufficient explanation given as to why other supports were not considered by the May 2024 CSE that could have supplemented or supported the student in a general education setting, especially in light of the student's prior progress in a general education classroom with 1:1 support.  Thus, as the district failed to adequately support the May 2024 CSE's recommendation for a 12:1+1 special class placement as the student's LRE, the district has failed to meet its burden to establish that it offered the student a FAPE for the 2024-25 school year.

C. Mootness

As it has been determined that the district failed to offer the student a FAPE for the 2024-25 school year, typically the next inquiries would revolve around the appropriateness of the unilateral placement and equitable considerations.  However, at this point in the proceeding those issues have been rendered moot.

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

Here, the parent seeks an order granting the relief sought in the due process complaint notice, "specifically the direct funding of the 1:1 special education services utilizing ABA methodology" which included 12 hours per week of direct 1:1 special education services and one hour per week of indirect 1:1 special education services, as well as funding for the following related services: four 30-minute sessions of direct 1:1 speech-language therapy per week, two 30-minute sessions of direct 1:1 OT per week, one 30-minute session per week of direct 2:1 OT per week, two 30-minute sessions of direct 2:1 PT per week, and one hour of parent counseling per month (Req. for Review at p. 10; see Parent Exs. A at p. 2, D at p. 1).

The district was required to fund the student's stay put placement from the date of the parent's September 13, 2024 due process complaint notice through the pendency of these proceedings by virtue of the IHO's amended November 26, 2024 interim decision on pendency (Nov. 26, 2024  Interim IHO Decision).[18]  The IHO awarded the parent with pendency services based on the July 2022 CPSE IEP, and the award essentially mirrors the parent's requests for relief on appeal (compare Parent Ex A. at p. 2, with  Nov. 26, 2024 Interim IHO Decision at p. 1, and Parent Ex. D at p. 2).  Additionally, after the filing of the request for review, the parties, through letters to this office, made requests for extensions to serve and file responsive pleadings in this matter, in which they indicated that the student was receiving services pursuant to pendency.  This has been reiterated by the parent in her answer to the cross-appeal when addressing the district's contentions related to pendency (Answer to Cross-Appeal at p. 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 parent continued the student's preschool services, through pendency, for the 2024-25 school year (Parent Ex. I ¶ 19).  According to the parent, the student's "pendency program . . . remains appropriate to meet his needs" (id.).

Based on the above, the parent obtained all of the relief she sought in this proceeding through pendency and, therefore, there is no further relief that may be granted and the matter no longer presents a live controversy except to the extent that the parties dispute pendency, which is discussed below.

Additionally, 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 cases 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, as it has been determined that the district failed to offer the student a FAPE for the 2024-25 school year and the parent asserts that the student's pendency program is the same as her unilateral placement, there can be no further pendency changing determinations 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—has been discussed and determined.  Rather, the parties' remaining dispute centers around the private special education and related services the parent obtained as self-help to remedy the district's denial of a FAPE to the student.  As the FAPE determination has already been addressed and the only issues in this matter concerning the parent's requested relief relates to the funding of the private special education and related services sought by the parent, and 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 determined.  Without an outstanding IEP dispute, the questions of the privately obtained special education and related services delivered to the student, and equitable considerations, could be made in a much shorter time frame.  Pertinently, however, because there is no longer an outstanding 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 the special education and related services delivered by Yeled are appropriate, and whether equitable considerations favor relief to the parent, unlike FAPE, do not fit into the mootness exception as they are not capable of repetition yet evading review.

Based on the foregoing, the questions of whether the services provided by Yeled were appropriate and whether equitable considerations favor relief for the parent are moot as there is no further relief that may be granted.

D. Pendency

I now turn to the district's arguments regarding pendency.  The district asserts in its cross-appeal that the IHO's November 26, 2024 interim decision on pendency should be "annulled" because the IHO improperly ordered that pendency services would be administered by a provider of the parent's choosing, and because "by enrolling the [s]tudent in a unilateral placement, the [p]aren't rejected, wholesale, the program included in the August 19, 2022 CPSE IEP . . . which served as the last agreed-upon program" (Answer and Cross-Appeal at p. 10).  As noted above, the only CPSE IEP in the hearing record is from July 2022 (see Parent Ex. D).  Notwithstanding the district's likely error in the date of the CPSE IEP, I am not persuaded by the district's arguments in its cross-appeal.

The student's entitlement to a pendency placement in this matter began with the filing of the due process complaint notice on September 13, 2024 (see Parent Ex. A).  It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906).

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]).[19]  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).

It is undisputed by the parties that the student's last agreed-upon program was the July 2022 CPSE IEP.  Despite this, the district contends that "[p]endency is a matter of identifying the general type of educational program in which the child is placed and does not guarantee a particular provider," and, as such, it was error for the IHO to order that pendency services would be administered by a provider of the parent's choosing (Answer and Cross-Appeal at p. 10 [internal citations and quotation marks omitted]).  It could also be construed, notwithstanding the potential typographical discrepancy noted above, that the district is essentially asserting that by unilaterally obtaining private special education services for the student, the parent has elected to relinquish her right for the student to receive the services recommended in the July 2022 CPSE IEP.

Although State regulations do not require that a student who had previously been identified as a preschool student with a disability remain in a preschool program for which he or she is no longer eligible by reason of age (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]), SROs have long noted that the IDEA makes no distinction between preschool and school-age children and consequently, if a student is no longer eligible to remain in a particular preschool program, the district remains obligated to provide the student with "comparable special education services during the pendency of an appeal from the CSE's recommendation for [the student's] first year of education as a school age child" (Application of a Child with a Handicapping Condition, Appeal No. 91-25; see Henry v. Sch. Admin. Unit No. 29, 70 F. Supp. 2d 52, 61 [D.N.H. 1999] [holding that when a student has aged out of a particular program, the district "must fulfill its stay-put obligation by placing a disabled student at a comparable facility"]; Application of a Student with a Disability, Appeal No. 16-020; see also Makiko D. v. Hawaii, 2007 WL 1153811, at *10 [D. Haw. Apr. 17, 2007]; Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 65-66 [D.D.C. 2005]; Letter to Harris, 20 IDELR 1225 [OSEP 1993]).

As noted above, pendency is not based on a particular location but is focused on the general level and type of services (see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents., 629 F.2d at 753, 756).  Thus, notwithstanding that the student "aged out" of the programs available at the preschool location, the July 2022 CPSE IEP remained the student's pendency IEP (see L.B. v. New York City Dep't of Educ., 2022 WL 220085, at *3 [S.D.N.Y. Jan. 25, 2022]).

Accordingly, in this instance, beginning with the filing of the due process complaint notice, the student was entitled to receive comparable special education services to the services recommended in the July 2022 CPSE IEP, which included 12-month programming consisting of 12 hours per week of direct 1:1 SEIT services, one 60-minute session per week of indirect SEIT services, four 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, one 30-minute session per week of group OT, and two 30-minute sessions per week of individual PT, to be delivered at an early childhood program selected by the parent (Parent Ex. D at pp. 1, 15-16).  In a proceeding such as this where SEIT services are at issue for a school-aged student, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program. Accordingly, the 12 hours per week of direct SEIT services and one hour per week of indirect SEIT services recommended in the July 2022 CPSE IEP for purposes of implementation would nonetheless appropriately consist of the provision of 1:1 special education teacher support for the student regardless of the terminology used to describe that support.

Additionally, of note, the special education programs and services recommended in the July 2022 CPSE IEP were itinerant services intended to be provided in an "[e]arly childhood program selected by the parent" (see Parent Ex. D at p. 15).  However, as with the SEIT services, "early childhood programs" are specific to preschool students and pendency does not operate to allow or require a student who is school age to remain in a preschool program (8 NYCRR 200.16[h][3][i]; see 8 NYCRR 200.5[m]).  Accordingly, it would not be expected for the services to continue to be provided in an early childhood program selected by the parent.  Once a student becomes school age, the student is entitled to attend the public schools in the district at no cost (Educ. Law § 3202[1]) and the pendency provision does not deprive the student of a free education as a school-aged student (see Application of the Dep't of Educ., Appeal No. 20-163 [finding a notation in an IEP that itinerant services were to be provided in an early childhood program was not part of the student's educational program for purposes of pendency and the district was required to implement the itinerant services in a location determined by the district]).  However, just because a student is entitled to attend the public schools in the district does not mean that the student is required to attend the public schools and the district has not presented a justifiable argument for ending a student's right to itinerant pendency services solely because the student has been placed by the parent at a nonpublic school.

Based on the above and on the IHO's November 26, 2024 interim decision on pendency, the district was required to provide the student with 12 hours of direct and one hour of indirect special education support, along with the related services recommended by the July 2022 CPSE for the 2024-25 school year during the pendency of this proceeding.  Further, while the district is correct that, ordinarily, it would be permitted to decide how to implement pendency services for the student, as pendency does not guarantee a particular provider, site, or location, in this instance, the parent appears to have continued the student's services using the same agency that delivered those same services during the prior school year—although the student moved from preschool to school aged services and, as noted above, the agency has not been approved as a school or agency with which school districts may contract to instruct school-aged students with disabilities (see Parent Exs. E; I ¶19; Dist. Ex. 4 at p. 1).  Additionally, the hearing record is devoid of any indication that the district attempted to implement pendency services for the student, for which he was automatically entitled, through providers of the district's choosing.   Indeed, as the IHO noted in the November 26, 2024 interim decision on pendency, the district "failed to provide [pendency] services for [the] student, failed to recommend or provide [the p]arent with a provider capable of providing the penden[cy] services to [the s]tudent, and there is no dispute that [the s]tudent's 07/19/2022 CPSE IEP [was the s]tudent's last agreed upon" program (Nov. 26, 2024 Interim IHO Decision at p. 1).  As there is no indication in the hearing record of the district attempting to implement pendency services to which the student was entitled prior to the IHO's determinations on pendency, there is insufficient basis presented on appeal to depart from the IHO's findings.

VII. Conclusion

In summary, the IHO erred in finding that the student was not entitled to a FAPE for the 2024-25 school year.  In addition, the hearing record supports finding that the district failed to offer the student a FAPE for the 2024-25 school year.  However, any determination as to whether or not the parent's unilaterally obtained services, already delivered to the student and funded by the district, were appropriate or whether equitable considerations warranted an award of full funding to the parent because these issues have been rendered moot.  Lastly, the IHO's pendency determination is affirmed.

I have considered the parties' remaining contentions and find the necessary inquiry at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated January 30, 2025, is modified by reversing those portions which found that the student was not entitled to a FAPE for the 2024-25 school year; and

IT IS FURTHER ORDERED that the IHO's decision dated January 30, 2025, is modified to reflect that the district failed to offer the student a FAPE for the 2024-25 school year.