I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals, pursuant to section 8 NYCRR 279.10(d) of the Regulations of the Commissioner of Education, from an interim decision of an impartial hearing officer (IHO), determining her son's pendency placement during a due process proceeding challenging the appropriateness of respondent's (the district's) recommended educational program for the student for the 2021-22, 2022-23 and 2023-24 school years.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

In an amended due process complaint notice, dated November 8, 2023, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2021-22, 2022-23 and 2023-24 school years (see generally Amended Due Proc. Compl. Not.).[1]  The parent requested pendency for the student based on a September 22, 2022 IEP which recommended 7.5 hours per week of direct special education itinerant teacher (SEIT) services, one 30-minute session per week of direct individual speech language therapy, one 30-minute session per week of direct speech language therapy in a group of two, two 30-minute sessions per week of direct individual occupational therapy (OT), and one 30-minute session per week of direct individual physical therapy (PT) (Amended Due Proc. Compl. Not. ¶ 87).

After a prehearing conference was held on October 19, 2023, the parties convened on November 6, 2023 before the Office of Administrative Trials and Hearings (OATH) for a hearing date devoted to addressing the student's pendency placement (Tr. pp. 1-61).  During the November 6, 2023 hearing date, the district agreed with the parent that the student's pendency arose from the September 2022 IEP but argued that the student's pendency services should include special education teacher support services (SETSS) rather than SEIT services given that the student was then school-aged and because SEIT services were intended for preschool students with disabilities (Tr. pp. 29-31).  The parent argued that SEIT services addressed a student's social, emotional, and behavioral needs, whereas SETSS generally addressed academics; the parent requested that, if the IHO would not order SEIT services as part of pendency that, in the alternative, the pendency services be described neutrally as one-to-one special education teacher services (Tr. p. 29).  The IHO clarified on the record that the parties agreed that the September 2022 IEP was the basis of the student's pendency and that the only issue for him to address with regard to pendency was whether the 7.5 hours of services per week should be SEIT services or SETSS (Tr. p. 43).

In an interim decision dated November 13, 2023, the IHO granted pendency, retroactive to September 11, 2023, the date of the filing of the original due process complaint notice, based on the September 2022 IEP, but ordered 7.5 hours of individual SETSS rather than SEIT services in addition to: one 30-minute session per week of individual speech language therapy, one 30-minute session per week of speech language therapy in a group of two, two 30-minute sessions per week of individual OT, and one 30-minute session per week of individual PT (Interim IHO Decision at p. 1).

IV. Appeal for State-Level Review

The parent appeals, arguing the IHO erred in ordering SETSS rather than SEIT services for the student's pendency program.

In an answer, the district avers that it does not contest the parent's allegation that the IHO erred in ordering SETSS rather than SEIT services for the student's pendency program.  Further, the district asserts that it has taken steps to implement the student's pendency program as requested by the parent and that the matter has been resolved.  The district requests the parent's appeal be dismissed as moot.

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]).[2]   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. 46709 [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 ([emphasis added]; 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

The parent only appeals the IHO's interim decision on pendency insofar as the IHO replaced SEIT services with SETSS and requests as relief that an SRO change the student's pendency from SEIT services to SETSS.[3]  The district requests that the parent's appeal be dismissed as moot because it "no longer contests the Parent's request for SEIT services and has taken steps to implement the Student's pendency program as requested by the Parent" (Answer ¶ 6).  The district submits additional evidence to support its argument that the matter has been resolved and there is no longer a live controversy.  The district's additional evidence consists of a "Pendency Implementation Form" that indicates that it was submitted by the parent's attorney and signed by the district's attorney on February 9, 2024 (see SRO Ex. 1).[4]  The district further submits a "Declaration of Implementation of Pendency" by its attorney, indicating that the district agrees that the student's pendency includes 7.5 hours per week of SEIT services.

Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).[5]  Here, I will accept the "Pendency Implementation Form" dated February 9, 2024, which reflects that the basis for the student's pendency program is an "[a]greement between the parties" that the student's pendency includes 1:1 SEIT services 7.5 hours per week effective as of the date of the filing of the due process complaint notice, September 11, 2023 (see SRO Ex. 1).

Turning to the district's argument that the parent's appeal is now moot, the 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. New York City Dep't of Educ., 720 Fed. App'x 48, 51 [2d Cir. 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]).  However, a claim may not be moot, 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).

Based on the additional evidence that the district submits with its answer, the parties now agree that the student's pendency program consists of 7.5 hours of individual SEIT services, one 30-minute session per week of individual speech language therapy, one 30-minute session per week of speech language therapy in a group of two, two 30-minute sessions per week of individual OT, and one 30-minute session per week of individual PT (SRO Ex. 1).  Additionally, the district agrees that the pendency program began on the date the parent's original due process complaint notice was filed on September 11, 2023 (id.).  The attorney for the district also submitted a declaration of implementation of pendency which indicates the district submitted the pendency implementation form to the Impartial Hearing Office on February 9, 2024.  The parent has not submitted a reply or otherwise challenged the district's representation that the parties now agree that the student's pendency program includes 1:1 SEIT services.  It is well-established that a student remains at his current educational placement during the pendency of an administrative proceeding unless the State or local educational agency and the parents or guardian otherwise agree (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]).  Given the undisputed representation that the district and parent have reached an agreement that the student's pendency program includes 1:1 SEIT services, there is no longer a live controversy requiring SRO intervention.  The parent only challenges the IHO's replacement of SEIT services with SETSS and the district now agrees to the relief sought by the parent in her request for review (i.e., the district agrees that SEIT services are part of the student's pendency) (see Req. for Review).  There are no other remaining live issues between the parties with respect to pendency.  When parties settle all their claims, a case generally becomes moot (see Hammond Clock Co. v. Schiff, 293 U.S. 529 [1934]).  This is not one of those exceptional situations where the matter is "capable of repetition, yet evading review."  Accordingly, the matter is moot as there is no live controversy between the parties and no further relief that may be granted.

VI. Conclusion

Given the parties' agreement that the student's pendency program includes 1:1 SEIT services and having determined that there is no further relief that may be granted, the necessary inquiry is at an end and no further analysis of issues is required.

THE APPEAL IS DISMISSED.