14 -1 26 1- cv(L)

Doe v . East Lyme B d. o f E duc.

UNITED STATES COURTOF APPEAL S FOR THE SE COND CIRCUIT August Term, 2014 (Argued: March 13, 2015 D ecided: June 26, 2015) Docket No. 14-1261- cv(L), 14-1638-cv(XAP)

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x JANE DOE, J OHN D OE, by and through h is paren t Jane Doe , Plaintiffs-AppelleesCros s-Appellants,

- v.- EAST LYME BOARD OF EDUC ATION,

Defe ndant-AppellantCros s-Appellee, DEPARTMENT OF EDUCATION, CO NNEC TICUT STATE, Defe ndant.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -xBefore : JACOBS and LOHIER, Circuit Judges, and SHARPE, District Judge. * The East Lyme Board of Education (the “Board”) app eals from the judgment of the Unit ed States D istrict Court for the District of Conn ecticut (Arterton, J.), h olding that the Board violated the stay-put provision of the Indivi duals with Disabilit ies Education Act (“I DEA”), 20 U.S.C . § 1415(j), and awarding reimbursement to Jane Doe an d her s on, John D oe. The D oes cr ossappeal from the amount of reimbursement and fr om the district cou rt’s rejection of their other IDEA claims. We affirm in most respects, but vacate and r emand for en try of judgment in favor of the Doe s for the fullvalue of services that the Boar d was required to fund under the stay-put provision, calcul ated from the date that Jane D oe initiated administrative proceedings, in part as r eimbursement and in remaining part as compens atory education. Affirmed in part, vacated in part, and remanded for further p rocee dings consistent with thi s opinion.

Chief Judge Gary L. Sh arpe, of the United States District Court for the * Norther n District of New York, s itt ing by designation. 2EILEEN M. HAGERTY, Kotin, Cr abtree & Strong, LLP, Boston, Massac husetts, for Plaintiffs-Appellees-Cr ossAppellants. SHELD ON D. MYERS, Kainen, Escaler a & McHale, P.C., Hartford, C onnecticut, for Defe ndant-Appellant-Cross -Appellee. DENN IS JACOBS, C ircuit Ju dge: John Doe (the “Student”) has autism and requires spe cial educati on services . He and his mother, Jan e Doe (the “Parent”), r eside within the East Lyme Publi c School District (the “District”) under the jurisdiction of the East Lyme Board of Education (the “Board”) . Up through the 2008-2009 sc hool year, the Board and the Parent agre ed on individual ized education plans (“IEP s”) setting forth special education services, cons isti ng of school placement and additi onal related services , that the Board would provide or fund. Foll owing disagreements over the IEP for 2009-2010, the Parent placed the Student in a private school outside the District, and continued to privatel y obtain some (but not all) of the re lated services pr eviously funded by the Board. The Board re fused to pay for the private school or any r elated services o n the ground

3that it

ceased to b e re sponsible for the Student once he was enr olled out side the District. The Parent br ought suit u nder the Indivi duals with Disabilit ies Education Act (“IDEA”), 20 U.S.C. § 1400 e t seq., all eging that the Board offer ed an inadequate I EP for 2009-2010 and failed to offer any IEP for 2010-2011 (and subse quent school years), ther eby den ying the Student a free appropr iate publi c education (“FAPE”), see 20 U.S.C . § 1412(a)(1). The district court dism issed these claim s. As to 2009-2010, the court r uled that the IEP provided the Student with a FAP E. As to 2010-2011 (and subse quent school years) , the court ruled that the Board violated the IDEA by faili ng to offer any IEPs, but that the Paren t was not entitl ed to relief becaus e the pr ivate school in which she enr olled the Student was an inappropriate placement. The court did award the Paren t some relief. Citing the stay-put provision of the IDEA, 20 U.S.C . § 1415(j), which provides for a child’s continuance in the “then-curr ent educational placem ent” during the pende ncy of proce edings (absen t agreement other wise), the court ruled that the Board was in viol ation for failing to fund the related se rvices des cribed in the 2008-2009 IEP once the par ties

4reache d an impasse. Accordingly, the court order ed the Boar d to reimburse the

Parent for an y such ser vices she actually paid for out of pocket. We affirm the judgment i n most respe cts, but vacate the award of reimbursement and r emand the case fo r further procee dings. We hold that the appropr iate equi table relief for a stay-put violation is reimbursement or compensatory education (or b oth) for the full valu e of ser vices that the educational agency was required to fund, not the (lesser ) value of services the Parent was able to afford . We further hold that an educationalagency’s obligati on to maint ain stay-put pl acement is triggered whenan admini strative due proce ss pr oceeding is init iated, not when an impasse is reache d.

BACKGROUND The Student was nine ye ars old at the beginning of the 2009-2010 sch ool year. Be cause of his autism, the Student exper iences difficulties with social interaction and commu nicati on, particularly, speech and r eading. He and the Parent both r eside within the District in East Lyme, Conne cticut

. The Student attended pub li c school in the District unti l December 2006, when the Boar d and the Paren t agreed on p ublicl y-funded placement at Hope

5Academy, a private school. In 2008, dissati sfied with the Student’s progr ess at

Hope Acade my, the Parent placed him at Sol omon Schechte r Academy (“Solomon”) in New London, Con necticut. Solom on is a private religious school that provides no spe ciali zed instruction to students with di sabilities. The Parent and the Board agr eed that the Pare nt would pay the tui tion at Solom on, while the Board would fund additi onal related services , such as spe ciali zed re ading instruction and speech the rapy, which would be delivered by pr ivate providers outside the classroom. Accordingly, the Board issued an IEP in December 2008 (the “2008-2009 IEP”), whi ch provided that the Paren t would pay for tui tion at Solom on, while the Board would pay for the following related services: Or ton-Gil li ngham reading instruction (5 hours/ week), spe ech ther apy (2.5 hours/ week), and occupational/physical therap y (1.5 hours/ week). In Febr uary, the parties amended the IEP to increase sp eech the rapy to 3 hours p er wee k. As discussed in greater de tailbelow, it i s this amended 2008-2009 IEP that furnishes the “thencurre nt educational pl acement” for stay-put purpos es. On June 17, 2009, the Par ent met with Board repre sentatives to discuss the 2009-2010 placement. Dr. C orinne Ber glund, the Board’s Dire ctor of Spe cial

6Education, advi sed the Pare nt that the Board would not pay for tuit ion at

Solomon and suggested that the Student be enrolled instead at Niantic Center School (“Niantic”), a publi c school in the District. The parties reac hed an impasse. A month lat er, the Bo ard issued an IEP (the “2009-2010 IEP”) placi ng the Student at Niantic or his localelementary school and offer ing a program that included: a case manager, “code e mphasis reading that incorporates O rtonGil li ngham principles” (50 mi nutes/day), s peech the rapy (2.5 hours /wee k), occupational therap y (1 hour/we ek), and physical therapy (20 minutes/wee k). The Parent r ejected the IEP, advised the Board that she would keep the Student at Solomon, and conveyed her expe ctation that the Board would continue paying for re lated services. The de mands for re lated services wer e base d on recommendations by the S tudent’s treating clinician, Dr. Rober t Kemper. The Student continued to attend Solomon during the 2009-2010 school year, and was regularly pull ed out of the classroom to rece ive special educati on services (which Solomon did not offer) from private providers . The Parent also arrange d for the S tudent to receive some instruction over the summer. The Parent absorbed all of these educational expens es.

7In August 2010, the Parent advised the Board that, unless sh e re ceived a

satisfactory IEP, she would conti nue the en rollm ent at Solomon for 2010-2011, and demanded r eimbursement of her expe nses. The Board re fused, on the ground that the Student’s e nrollment at Solom on terminated the Board’s obligati ons under the IDEA. On April 27, 2010, the Parent filed an admi nistrative due process complaint, which she temporar il y withdrew, but then re filed, i n Septe mber 2010. See 20 U.S.C. § 1415(f), ( i); Conn. Gen. Stat. § 10-76h. The Pare nt all eged that the Board failed to provide the Student with a FAPE and viol ated various proce dural requirements under the IDEA and Con necticut l aw. The Parent sought reimbursement of the tuition at Solom on and the costs o f the re lated services. 1 The admini strative hearing officer r uled in favor of the Board. The officer found (inter alia) thatthe Board had off ere d a FAPE during the relevant school years, an d that the lack of special educati on ser vices at Solomon made i t an inappropriate placement. Accordingly, the officer awarde d no reimburse ment.

The Parent did not seek r eimbursement of Solomon tuit ion for the 2008- 1 2009 school year, which the par ties had agreed she would pay. 8The Parent thensought judici al review in the United States District Court for the

District of Connec ticut

. See 20 U.S.C. § 1415(i)(2). 2 The parties cr oss-moved for s umm ary judgment on the basis of the admini strative recor d. The district court (Arterton, J.) ruled that as to 2009-2010, the Board offe red the S tudent a FAPE, and that though the Board failed to propose an IEP for 2010-2011 (and the subs equent school years), the Parent was not entitl ed to relief becaus e Solomon was an inappropr iate placement. 3 However , the court concluded that the Board violated the stay-put provision of the IDEA, 20 U.S.C . § 1415(j), by refusing to continue funding the related ser vices descr ibed in the amended 2008-2009 IEP once the par ties reache d an impasse. The court he ld that the Board’s obligati on to fund those se rvices triggered as of June 17, 2009 (when impasse was r eached), an d order ed the Boar d to reimburse the Par ent for r elated services s he funded s ince that date. Over the Parent’s objec tion that t he Board o wed more se rvices than sh e had be en able to

The Conn ecticut State Department of Education, ini tial ly named as a 2 defendan t, was voluntaril y dismi ssed. The motions were re ferr ed to Magistrate Judge Margolis, who issued two 3 recommended r uli ngs that the district court adopted with modifi cation. 9afford, the cour t li mit ed the amount of reimbursemen t to the Parent’s out-ofpocket expe nses. The parties cr oss-appe al. The Board argues ( inter alia) that the Student’s enrollment at Solom on terminated its obli gations under the IDEA altogether, that it prevailed on the FAPE clai m, and that l iabil ity for a stay-put vi olati on is conditionalon the Paren t’s prevailing on the FAPE clai m. The Parent argues (inter alia) that the Board failed to provide a FAPE, and that Solomon was an appropr iate placement. The parties also contest the award of r eimbursement on a number of gr ounds. Most significantly, the Board ar gues that the court improperly awarded re imbursement for se rvices re ndere d befor e the Pare nt initiated administrative due process procee dings, whil e the Pare nt argues that the court should have awarde d relief for the full valu e of the r elated services, n ot just the (lesser) value of se rvices she was able to afford.

DISCUSSION The Parent ass erts two conce ptuall y disti nct claim s: (I) a denial-of-FAPE claimbased onthe inadequacy of the 2009-2010 IEP, the Board’s failu re to issue IEPs for later school years, an d the approp riateness of Solomon as an educational

10placement, see 20 U.S .C. § 1412(a)(1); and (II) a stay-put claimbased onthe

Board’s r efusal to fund related ser vices descr ibed in the amended 2008-2009 IEP during the pende ncy of proce edings, see 20 U.S.C. § 1415(j). In conne ction wi th the stay-put clai m, on which the Parent pre vail ed below, both par ties contest the appropr iateness of the r elief fashioned by the district court, see 20 U.S .C. § 1415(i)(2)(C)(iii ). We re view de novo the district court’s rulings as to li abili ty under the IDEA. Lil lbask ex r el. Mauclai re v. S tate of Conn. D ep’t of Educ., 397 F.3d 77, 83 (2d Cir. 2005). We r eview for abuse of discretion the fashioning of relief under 20 U.S.C. § 1415(i)(2)(C )(iii ). See Florence C nty. Sch. Dist. Four v. C arter By & Through Car ter, 510 U.S. 7, 16 (1993); s ee also T.M. ex r el. A.M. v. Cornwall Cent. Sch. D ist., 752 F.3d 145, 170 (2d Cir. 2014).

I “Under the IDEA, feder al money is avai lable to assist state and local agencies in educating handicapped children, provided that the r ecipients of those funds comply wi th various provisions of the Act.” Bd. of Educ. of Pawli ng Cen t. Sch. D ist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002) (internal quotation marks

11omit ted). Through its state and local educati onal agencies, a participating state 4 must m ake “[a] fre e approp riate public educati on . . . availabl e to all chi ldren with di sabilities res idi ng in the State.” 20 U.S.C . § 1412(a)(1)(A). To achieve that end, educational agencies must issue indi vidual ized educational pl ans (“IEPs”) specifying “the educational needs of [the] han dicapped child and the speciall y designed instruction and related se rvices to be e mployed to m eet those n eeds.” Sch. C omm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S

. 359, 368 (1985); see 20 U.S .C. § 1414(d). The ter m “related services” e ncompasses “transpor tati on, and such de velopmental, corrective, and other s upportive services . . . as may be re qui red to ass ist a chil d with a di sability to benefit from special education.” 20 U.S.C. § 1401(26)(A). “If a state fail s in its obli gation to provide a free appr opriate public education to a handicapped child, the par ents may enroll the child i n a private school and see k retroactive re imbursement for the cos t of the private school from the state.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d C ir. 2006). Private placement i s reimbursab le only i f “such placement, rather than a In this case, “state educational agency” refer s to the Con necticut State 4 Depar tment of Educati on, see 20 U.S.C. § 1401(32), an d “local educati onal agency” re fers to the Board, se e 20 U.S.C . § 1401(19). 12propose d IEP, i s prope r under the Act.” Burlington, 471 U.S. at 369; see also 20

U.S.C. § 1412(a)(10) (C)(ii). 5 “We under take a three- step proc ess to dete rmine whether paren ts are entitl ed to tuit ion reimbursement.” T.Y. v. N.Y.C. D ep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009); se e also Cer ra v. Pawli ng Cen t. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). The first two steps conce rn the ade quacy of the IEP : “whether the

6 school district has compl ied with the IDEA’s pr ocedural requirements” and “whether the IEP i s reas onably calcul ated to enable the child to receive educational benefits.” T.Y., 584 F.3d at 417 (i nternal quotati on marks omitt ed). The third step conce rns the appropr iateness of the par ent’s placement: “whether the private schooling obtained by the par ents is approp riate to the child’s needs.” Id. (int ernal quotati on marks omitt ed). The par ent must prevail at al l three steps to receive r eimbursement.

A state or local educationalagency may also consent to publicly-fu nded 5 placement at a private school if such placement i s nece ssary to car ry out the requirements of the IDEA. 20 U.S.C . § 1412(a)(10)(B)(i). Our case s have so metim es collapsed the first and se cond steps into a single 6 inqu iry and, accordingly, characterized the an alysis as having two (not three ) steps. E.g., Gagliardo v. Arli ngton Cen t. Sch. Dist., 489 F.3d 105, 111-12 (2d Cir. 2007); M.C. ex rel. Mrs. C . v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000). This is a di ffere nce of en umeration, not of substance. 13A

The Parent ar gues that the Student was de nied a FAPE for the 2009-2010 school year b ecause the IEP i ssued b y the Board that year was deficient both procedur all y and substantively. We disagree. 1 The pre mise of the procedur al clai m is thatthe Parent was de prived of the right to partici pate in the development of the 2009-2010 IEP, because it was issued after the last meeting at which she was pre sent. Under the IDEA, the “IEP Team” responsible for de veloping an IEPmust include the chil d’s pare nts. 20 U.S.C. § 1414(d)(1) (B). In additi on, “[e]ach local 7 educational agency or State educational agency shall ensure that the par ents of each child with a disabili ty are members of any group that makes decisions on the educational placem ent of their child.” 20 U.S.C. § 1414(e); s ee also 34 C.F.R. § 300.501(b), (c); C onn. Gen. Stat. § 10-76d; Con n. Agencies Regs . § 10-76d-12. The IDEA thus confer s on pare nts a right of “participati on . . . throughout the development of the IEP.” Bd. of Educ. of Hendrick Hudson C ent. Sch. D ist.,

Under C onnecticut state law, the IEP Team i s called the “planning and 7 placement team” or “PPT.” See Conn. Age ncies Regs. § 10-76a-1(14). For consistency, we use the feder al statut ory term. 14Westches ter Cn ty. v. Rowl ey, 458 U.S. 176, 206 (1982). At the same time, the duty

to issue an IEP remains wi th the educational agency, see 20 U.S .C. § 1414(d)(2)(A), and a pare nt’s right of participati on is not a right to “veto” the agency’s pr oposed IEP, T.Y., 584 F.3d at 420. Parental di ssatisfaction is channeled through administrati ve and (if neces sary) judicialprocee dings. M.C. ex r el. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 62 (2d Cir. 2000); se e 20 U.S.C

. § 1415(i). The Parent’s r ight of partici pation was not viol ated. She fully participated in the June 17, 2009 meeting of the IEP Team at which the 2009-2010 placement was discussed. Nothing in the re cord sugges ts that the IEP T eam ever met withouther p rese nce. The argument comes down to whethe r the Boar d could, after the meeting, issue an IEP wi thout the Parent being physically present. We conclude that it could. The right of partici pation encompasses the right to offer input and to have that input considered; it does not entail a right to be physically present throughout the agency’s owndecisional process. S ee 34 C .F.R. § 300.501(b)(3) (participati on right does not re qui re par ental prese nce at “informal or unscheduled conve rsations involvi ng public agency perso nnel” or “pr eparator y

15activi ties that publi c agency per sonnel engage in to develop a proposal”). So

long as a parent has a meaningful opportunity to offer input, parental rights to be part of the IEP Team, 20 U.S.C. § 1414(d)(1)(B), and to par tici pate in “any group that makes decisions on the educational placement of [the] chil d,” 20 U.S.C. § 1414(e), have b een r espe cted. See Cer ra, 427 F.3d at 193-94 (finding no procedur al vi olati on wher e final IEPwas issued over two months after IEP Team meeting at whi ch pare nt “actively ” participated). 2 The Parent’s s ubstantive challenge to the adequacy of the 2009-2010 IEP i s li kewise rejec ted. To be subs tantivel y adequate, an IEP must be “re asonably calcul ated to enable the child to receive educational benef its”; whil e an IEP need not “furnish ever y special service nec essar y to maxim ize each handicapped child’s potential,” it m ust be “likely t o produce pr ogress ” that is m ore than “trivialadvancement.” Ce rra, 427 F.3d at 194-95 (internal quotati on marks and bracke ts omit ted). On this question, substantialdefer ence is owed to the judgments of state administrative officers. Id. at 191. “[C]ourts lack the specialized knowledge and exper ience nece ssary to r esolve per sistent and difficu lt q

uestions of educational poli cy.” Rowley, 458 U.S. at 208 (internal

16quotation marks omi tted); see also Gagli ardo v. Arlington Cent. Sc h. Dist., 489

F.3d 105, 112 (2d Cir. 2007); Ce rra, 427 F.3d at 195. The 2009-2010 IEP offered placement at a public school (Nianti c) staffed with a special educati on teacher, as well as: a case manager, “code emphasis reading that incorporates Orton-Gill ingham principl es” (50 minutes/day), spe ech therapy (2.5 hour s/we ek), occupational therapy (1 hour/ week), and ph ysical therapy (20 minutes/wee k). The admini strative hearing officer con cluded that this combinati on of placement and ser vices was substantively adequate. We see no basis in the re cord to reject that conclusi on. * * * For the for egoing reason s, the Board p rovided the Student with a FAPE for the 2009-2010 school year

. B The Board r efused to pr opose an IEP for the 2010-2011 s chool year or an y of the subs equent school years. The district court concluded that this amounted 8

The parties and the district court focused on the 2010-2011 school year , but 8 the same analysis applies to lat er sc hool years, for which the Board also declined to offer IEPs. 17to a denial of a FAP E, but that in any event the Parent was e ntitl ed to no re li ef

because the Student’s e nrollment at Solom on was itself inappropriate. We agre e. 1 The Board was r equired to offer the S tudent an IEP for 2010-2011 and each of the followi ng school years . The IDEA requires that “[a]t the be ginning of each school year, each local educationalagency, State educational agency, or other State agency . . . shall have in effect, for e ach child wi th a disabil ity in the agency’s jurisdiction , an indivi duali zed education program.” 20 U.S.C . § 1414(d)(2)(A) (emphases added); see also 34 C.F.R. § 300.323. It i s undisputed that the Student was, at allrelevant times, resident in East Lyme and within the Board’s jurisdict ion. The Board ther efore viol ated the IDEA by failing t o offer IEPs for these s chool years, and the se violati ons depr ived the Student of a FAPE. “[W]hen a child requires spe cial-educati on ser vices, a school district’s fail ure to propose an IEP of any kind i s at least as ser ious a viol ation of it s res ponsibili ties under IDEA as a failu re to pr ovide an adequate IEP .” Forest Grove S ch. Dist. v. T.A., 557 U.S. 230, 238-39 (2009). The Board ar gues that the Student’s e nrollment at Solom on, outside of the District’s borde rs, ter minat ed any obligati ons it owed under the ID EA. That is

18incorrect. A local educationalagency’s duty to provide a FAPE is not ended by

enrollment of a resident child in a private school outsi de the district. True, the educational agency in the juri sdiction where the pr ivate school is l ocated may have its own obligati ons, most notably, the obligati on to conduct “child find.” See 34 C.F.R. § 300.131(a) (“Each [local educationalagency] must locate, identi fy, and evaluate allchildren with di sabilities who are e nrolled by their pare nts in private . . . schools located in the school district served by the [ agency].”). But the duty to offer a FAPE remains with the agency where the child resides; and a FAPE cannot be offer ed unless an IEP is issued. See 71 Fed. Reg. 46593 (Aug. 14, 2006) (“If a determinati on is made by the [local educati onal agency] where the private school is located that a chi ld needs spe cial educati on and re lated services, the [local educati onal agency] where the child resides is respon sible for making FAPE avail able to the child.” (emphasis added)). The IDEA thus provides that a local educationalagency is relieved of its obligati on to pay for a re sident child’s private school tui tion “i f that agency made a free appropriate public education available to the child and the parents e lected to place the child” elsewhere. 20 U.S .C. § 1412(a)(10)(C )(i) (emphasis added); see also Frank G., 459 F.3d at 370. But w ithout the be nefit of an IEP from the distri ct

19of res idence, a pare nt could not i ntelli gently evaluate whether the child was

offere d a FAPE or “elect[] to place” the child elsewhere. Thus an educational 9 agency must issue an IEP for a resident quali fying chil d, even if that child has beenenrolled in a private school outside the boundaries of the school district. 2 The Board’s failure to provide a FAPE notwithstanding, the Parent is entitl ed to relief only if she meets “the bur den of demonstr ating that [the] pr ivate placement was appropr iate.” Gagl iardo, 489 F.3d at 112. Generally, “the same considerations and cr iteria that appl y in determining whether the Sch ool District’s placement is appropriate should be cons idered in deter mining the appropr iateness of the par ents’ placement”; accordingly, the private placement

A local educati onal agency may not be required to offer an IEP i f the 9 paren t’s expr esse d intention i s to enroll the child i n a private school outside the district, wi thout regard to any IEP. See 71 Fe d. Reg. 46593 (“If the parent makes clear his or he r intention to keep the child enrolled in the private . . . school located in another [jurisdicti on], the [local educationalagency] wher e the child resides need n ot make FAPE avai lable to the chil d.”); see also J.G. v. Briarcliff Manor Union Free Sch. D ist., 682 F. Supp. 2d 387, 397 (S.D.N .Y. 2010). But see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (“We find that a school district cannot escape its obligati on under the IDEA to offer for mally an appropr iate educationalplacement by arguing that a disabled chil d’s pare nts expr esse d unwil li ngness to accept that placement.”). In thi s case, the re is no evidence that the Pare nt would have categoricall y refuse d any IEP the Board offere d. 20must be “reas onably calcul ated to enable the child to receive educational

bene fits.” Frank G., 459 F.3d at 364 (internal quotati on marks omitt ed). The admini strative hearing officer found that the placement at Solomon was inappropr iate because that school was not tailored to meet the Student’s special needs, which had to be addres sed by outside pr oviders. True, “[a]n appropr iate private placement need not meet state education standards or requirements” or “pr ovide certified special educati on teacher s or an IEP for the disabled student.” Frank G., 459 F.3d at 364; see also Car ter, 510 U.S. at 13. However , “asses sment of educational progress is a type of judgm ent for which the district court should defer to the [administrati ve hear ing officer’s] educational experience .” Frank G., 459 F.3d at 367 (internal quotati on marks omit ted). We see no reas on to overturn the admini strative officer’s finding, which is adequately supported by the re cord. A re pres entative from Solomon testifi ed that the school did not offer any spe cial educati on ser vices and did not modi fy its curriculum t o fit the Student; to receive the sp ecial i nstruction recommended b y

21Dr. Kemper , the Student had to be pull ed out of classes fr equently. The main 10 bene fits of Solomon to the Student wer e small cl ass sizes and s ome modifi ed grading procedur es. But the former is the “the kind of educational and environmental advantage[] . . . that mi ght be pr efer red b y parents of any child, disabled or not.” Gagli ardo, 489 F.3d at 115. And the latter, while an accommodati on, “did not provide the spec ialeducation services s pecificall y neede d by [the Studen t]--namely, an educationalsetting consistent with [the clini cian’s] recommendation.” Id. at 114. Solom on did not provide any of the specialized instructi on reco mmended by Dr . Kemper. * * * In summ ary: the Boar d denied the Studen t a FAPE during the 2010-2011 school year (and s ubsequent school years ); the district court neverthe less proper ly awarded no re li ef as to that claimbecause enrollment at Solom on was itself i nappropr iate for the Student; accor dingly, and in light of ou r conclusion that the Student rece ived a FAPE for 2009-2010, we affirm the district court’s grant of summary judgm ent in the Board’s favor on the FAPE claim

.

Because of the need for outside services, the Student regularly missed his 10 classes in social studi es, art, math, and computers. 22We turn to the stay-put claim, on which the Parent pr evailed before the

district court.

II The stay-put provision of the IDEA provides that “during the pe ndency of any proce edings conducted purs uant to thi s section, unless the S tate or local educational agency and the paren ts otherwise agr ee, the ch il d shall remain i n the then-curr ent educational placem ent of the child.” 20 U.S.C. § 1415(j). The purpose of the provision is “to mai ntain the educational status quo whi le the parties’ dispute is being res olved.” T.M. ex rel. A.M. v. Corn wallCen t. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014). “It therefor e re qui res a s chool districtto continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judi cial proceedings are complete.” Id. at 171. A To determine a child’s “then-curre nt educational pl acement,” a court typical ly l ooks to: (1) “the placement descr ibed in the child’s most recently impl emented IEP”; (2) “the operative placement actuall y functioning at the time when the s tay put provision of the IDEA was invoked”; or (3) “the placement at

23the time of the previously im plemented IEP.” Mackey ex rel. Thomas M. v. Bd.

of Educ. For Arlington Cent. Sc h. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (internal quotation marks, elli psis, and br ackets omitt ed). 11 As the district court determined, the Student’s s tay-put placem ent was the placement described in the 2008-2009 IEP (as amended in Feb ruary 2009), which was both the most re cently im plemented IEP and the last one agreed upon b y the parties. It is undi sputed that the Board r efused to pay for the ser vices descr ibed in that I EP during the pendenc y of admini strative and judici al proceedings. The Board thus violated the stay-put provision. The Board’s ar guments to the contrary ar e meritless. First, the Board argue s that the Parent sho uld not be permitted to obtain reimbursement for tuition at Solom on by unilaterall y enrolling the Student there. But the stay-put clai m does not see k reimbursement of S olomon tu iti on; it seeks relief for the r elated services. Second, the Board argues that the related ser vices it agreed to fund did not form part of the S tudent’s educational pl acement for 2008-2009. To the con trary,

A stay-put placement mayalso be cre ated by the par ties’ agreement or by 11 admini strative or judici al order. S chutz, 290 F.3d at 484. 24the IDEA defines “fr ee appr opriate public educati on” to include “special

education and related services ,” 20 U.S.C. § 1401(9) (e mphasis added); and the ter m “related ser vices” is defined to mean ser vices that “may be requiredto assist a child wi th a disabil ity t o bene fit from special educati on,” 20 U.S.C . § 1401(26)(A) (emphasis added). We h ave applied the stay-put provision to payments for related ser vices. E.g., T.M., 752 F.3d at 151. 12 Third, the Board argue s that the 2008-2009 IEP cannot be a stay-put placement because the parties intended it to be a temporary ar rangement. That is beside the p oint. The Board’s obligati on to fund stay-put placement is rooted in statute, not contract. The parties’ intent as to the duration of the IEP (or the Febr uary 2009 amendment to it) there fore doe s not matter. Finall y, the Board conte nds that it cannot be held liabl e for a s tay-put viol ation i f it in fact provided a FAPE. Not so. “A claimfor tuiti on

The Board cites Zvi D. by S hirley D. v. Ambach, 694 F.2d 904, 908 (2d Cir. 12 1982), for the pr oposition that, in the contex t of stay-put, “[p]ayment and placement are two differen t matt ers.” But, in Zvi D., the payment obligati on was imposed by a stipul ation entered into for liti gation purposes; he re, the o bligat ion to fund related ser vices arises fr om an IEP. In any even t, we have ex pres sed doubts that this aspect of Zvi D. remains good law. See S chutz, 290 F.3d at 483 n.7 (“Zvi D. predate s the [Supr eme] Cour t’s decision in Burlington, and the consequent change s to the feder al regulati ons.”). 25reimbursement pur suant to the stay-put provision is evaluat ed independe ntly

from the evaluation of a clai m for tuition reimbursement purs uant to the inadequacy of an IEP .” Mackey, 386 F.3d at 160. “Section 1415(j) repre sents Congr ess’ policy choice that allhandicapped children, regardless of whether their case is meritorious or not, are to re main in their curr ent educational placem ent until the dispute with regard to their placement is ult imat ely resolved.” Id. (citati on, internal quot ation marks, and brackets omitted); see also T.M., 752 F.3d at 170. In short, the s tay-put provision m eans that an educational agency is required to maint ain the status quo pl acement even if the child would otherwise have no substantive right to it . See Mackey, 386 F.3d at 165. The Supre me Court’s de cision i n Burlington i s not to the contrar y. 13 Burlington observed that “par ents who unilaterally change their child’s placement during the penden cy of review pr oceedings, without the consent of state or local school offici als, do so at their own financialrisk” because “[i]f the

The Board also misreads 20 U.S .C. § 1412(a)(10)(C )(i). That section 13 provides that private school tuiti on is not reimbursable thro ugh a FAPE claimif the educational agency in fact offered a FAPE. See Frank G., 459 F.3d at 370. It does not insulate an educational agency from li abili ty for violat ing it s separ ate legal duty--under a differ ent section of the statute, 20 U.S.C . § 1415(j)--to prese rve a stay-put placement during the pendency of pr oceedings. 26courts ulti mately determi ne that the IEP proposed b y the school official s was

appropr iate, the parents would be b arre d from obtaining reimbursement for any interim period in whi ch their child’s placement viol ated [§ 1415(j)].” 471 U.S. at 14 373-74. Burlington stands for an unre markable propos iti on: when a par ent rejects a stay-put placement by unil aterally pl acing the child el sewher e, re troactive reimbursement for the unilat eral placement is avail able, if at al l, only through a FAPE clai m. See T.M., 752 F.3d at 172 (“When [the ch il d’s] pare nts rejecte d [the agency’s] offe r to provide pen dency se rvices directly for the 2011–2012 year , they took respon sibili ty for the cost of obtaining those se rvices from pr ivate providers .” (citi ng Burlington, 471 U.S. at 373-74)). We are not confronted with a Burlington scenario. Under the 2008-2009 IEP, the Student was to attend Solomon at parental expense and to rece ive related ser vices at the expe nse of the Board. While paying for the re lated services hers elf, the Parent maintai ned that continuous placement during the pendency of this li tigation. And far from declining the protection of stay-put, the Parent

At the tim e Burlington was decided, the stay-put provision was codified at 14 20 U.S.C. § 1415(e )(3). 27actively invoked it. At the June 2009 IEP Teammeeting, she re peatedly

demanded that the Board con tinue to provide stay-put placem ent: You’re pr oposing a change of placement. Ther e was an IEP from East Lyme, saying he’s her e. Now you’re changing the placement. It viol ates Stay Put. He’s suppos ed to stay here untilwe have a procee ding. . . . What I’msaying is you’re violating my Stay P ut rights . . . How is this not i n violation? Tr. of Planning and Pl acement Team Meeting, at 6:14-17, 10:4-5, 11:1-2 (June 17, 2009). For the for egoing reason s, we affirm the district court’s grant of summary judgment in favor of the Par ent on the stay-put claim

. B We turn now to the issue of r elief. In any acti on brought unde r the IDEA, the court “shall grant such re li ef as the cour t determines is appropr iate.” 20 U.S.C. § 1415(i)(2)(C )(iii ). The only restr icti on is that “the relief is to be appropr iate in l ight of the purpose of the Act.” Burlingt on, 471 U.S. at 369 (internal quot ation marks omi tted). “[E]qui table considerations are relevant in fashioning relief and the court enjoys b road discretion in so doing.” Carte r, 510

28U.S. at 16 (citati on and internal quotati on marks omitt ed). An award of damages

is not avail able, Polera v. Bd. of Educ. of Newb urgh Enlarged C ity Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002); but a court may award various forms of r etroactive and prosp ective equi table relief, including reimburse ment of tui tion, compensatory education, and other declaratory and injunctive remedies, Burlington, 471 U.S. at 369; Pol era, 288 F.3d at 486. The district court ordere d the Board to re imburse the Paren t for her out-ofpocket expe nses o n related se rvices incurre d since June 17, 2009, whe n the parties reache d an impasse about the Student’s placement. Both par ties contest this relief. 1 Some of the competing arguments merit li ttl e discussion. The Board ar gues that the Parent is entitled to reimbursement for only 2.5 hours of s peech the rapy per week, not 3 hours per we ek, as spe cified i n the Febr uary 2009 amendment to the 2008-2009 IEP. That posi tion i s meritless. For the reas ons discussed ab ove, the Feb ruary 2009 amendment controls, e ven if the parties intended it to be temporary.

29The Parent ar gues that she s hould be reimburse d for the “e xtended s chool

year” se rvices that she ob tained in the summ ertime. But the amended 2008-2009 IEP m akes no mention of such se rvices. The Pare nt argues that they sho uld be extrapolated fro m the term-tim e ser vices in the 2008-2009 IEP or from the summertim e ser vices set forth in the IEP for 2007-2008 . We disagree . The 2008- 2009 IEP l eft the sections for summertim e ser vices blank; and the 2007-2008 IEP was not the one most re cently im plemented or last agreed upon. The Board ar gues that the Parent was r equired to administratively exhaust her s tay-put cl aim. The Board is wr ong: “an action all eging viol ation of the stay-put provision fall s within one, if not m ore, of the enumerated e xceptions to” the IDEA’s ex haustion requirement. Murphy v. Arlington Cent. Sch. D ist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir. 2002). Since the purpose of the stay-put provision is to keep the child in an existing pl acement untilallprocee dings-- admini strative and judici al--have run their cours e, there is no evident reaso n why admini strative procee dings should have to be re commenced to that end. Id. Applying the ex haustion requirement to stay-put cl aims woul d create a loop of marathon proce edings, since eachnew round of administrative proceedings

30would i tself be subject to a fre sh round of judicial review. See 20 U.S.C . § 1415(i)(2). 2 The Board and the Parent each r aise one meritorious objection to the district court’s award of relief. * * * The district court held that the stay-put obligati on was triggered o n June 17, 2009, when the par ties reache d an impasse. The Board ar gues that any such obligati on was triggered wh en the Pare nt initiated administrative due process procee dings on April 27, 2010. The plain l anguage of the stay-put provision supports the Board’s pos iti on. The provision govern s the obligations of parties during “the penden cy of any proceedings conducted pursuant to this section, ” 20 U.S.C. § 1415(j) (emphas es added); and the wor d “procee ding” is used in § 1415 exclusivelyto describe admini strative due proce ss pr oceedings and judicialactions, see 20 U.S.C

. § 1415(i). Thi s reading of the s tatute i s reinfor ced by the implementing regulation. 34 C.F.R. § 300.518 (“[D]uring the pen dency of any administrative or judicial proceeding regar ding a due process complaint notice requesting a due proces s hear ing under § 300.507, unless the S tate or local agency and the pare nts

31of the child agree other wise, the child i nvolved in the complaint must remain in

his or her curre nt educational pl acement.”). The district court appears to have followed our summ ary orde r in A.S. ex rel. P.B.S. v. Bd. of Educ. for Town of W. Har tford, 47 F. App’x 615, 616 n.2 (2d Cir. 2002) (summary order ) (“Under the IDEA, a stay put is a procedural right that is acti vated as soon as the [IEP Team] reaches an impasse.” (inter nal quotation marks omi tted)). A.S., which is not precede ntial, is also disti nguishable. The plainti ff filed a due process complaint as soon as the parties reache d their impasse, so the filing coi ncided with the im passe. Id. at 616. Her e, the Parent filed her due proces s complai nt alm ost a fullyear after the impasse was reach ed. In any event, the s tatute i s clear that the Board’s obligati on to provide stay-put ser vices was not triggered until the Parent’s administrati ve complaint was filed. * * * The Parent ar gues that the district court abused its discretion by lim iting the award of r elief to her out-of-pocket ex pense s instead of awarding the full value of services that the Boar d should have provided. We agr ee that in this case

32the award of less thanthe full val ue of stay-put services was inappropr iate, gi ven

the purpos es of the IDEA. Bur li ngton, 471 U.S. at 369. The award in this case was calculated in a way that would undermine the stay-put provision by givi ng the agency an ince ntive to i gnore the stay-put obligati on. If it turns out in the end that the par ent was able to finance all the services , the agency would simpl y pay what it shoul d have paid in the first place. Cf. Burlington, 471 U.S. at 370-71 (“Reimbursement merely requires the Town to belatedly pay expens es that it should have paid al l al ong and would have born e in the first instance.”). On the other hand, if the paren t cannot afford to finance allor any se rvices, the age ncy gets to pay less than what it should have, or nothing--and, more important, less than what was neede d for the child’s ben efit. Moreover , such an arr angement would make the stay-put obli gation conti ngent on the means of a ch il d’s family--a legall y irrelevant variable. Cf. E.M. v. Ne w York City Dep’t of Educ., 758 F.3d 442, 452 (2d C ir. 2014) (“The IDEA promises a free appropr iate education to di sabled children without regard to their famili es’ financialstatus.”); Miener By & Through Miener v. State of Mo., 800 F.2d 749, 753 (8th Cir. 1986) (“We ar e confident that Congr ess did not intend the child’s

33entitl ement to a free education to turn upon her par ent’s abilityto ‘front’ its

costs.”). Reimbursement is a remedy limi ted to what has bee n paid. And an award of damages to make up the difference is im permissible under the IDEA. Polera, 288 F.3d at 486. There is, howeve r, another remedy: compens atory education. “Compensator y education is prospective equitabl e re li ef, re qui ring a school district t o fund education beyond the e xpiration of a child’s eli gibil ity as a remedy for any earlier depr ivati ons in the child’s education.” Somoza v. N.Y.C. 15 Dep’t of Educ., 538 F.3d 106, 109 n.2 (2d C ir. 2008) (internal quot ation marks omit ted); see also P. ex rel. Mr. & Mrs. P. v. Ne wington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008). Although we have typical ly endorsed c ompensatory education as a remedy for substantive FAPE clai ms, see, e .g., P., 546 F.3d at 123, there is no

Because the obligati ons imposed by the IDEA ge nerally terminate when a 15 child reaches the age of 21, compensatory e ducation “i s unavailable to a cl aimant over the age of twenty-one in the abse nce of gro ss pr ocedural violations.” Garro v. State of Conn ., 23 F.3d 734, 737 (2d Cir. 1994) (internal quotati on marks omit ted); see also Mrs. C. v. Whe aton, 916 F.2d 69, 75 (2d Cir. 1990). We ne ed not decide whether the Board’s failure to maintai n a stay-put placement was a “gross” pr ocedural violat ion, because the Student (who was nine at the star t of the 2009-2010 school year ) wil l not turn 21 for many years. 34reaso n why the re medy should not be equall y avail able for stay-put violati ons.

We there fore con clude that when an educational agency has violat ed the stay-put provision, compensatory education may--and gener all y should--be awarde d to make up for any appr eciable difference betweenthe full val ue of stay-put services owed and the (r eimbursable) ser vices the pare nt actuall y obtained. In this case, the Board owes re imbursement in the amount the Parent expen ded for services the Board was r equired to provide, plus compensatory education to fil l the gap of re qui red se rvices that the Paren t did not fund. In li ght of the fore going, we vacate the district court’s award of relief as to the Parent’s s tay-put cl aim. On remand, the district court should: cal culate the total value of the re lated services sp ecified in the amended 2008-2009 IEP for the period from April 27, 2010, to the (as yet undeter mined) date of the new final 16 judgment, see 20 U.S.C . § 1415(j); order the Board to reimburse the Parent for outof-pocket exp ense s incurred o n covere d services during that period; and direct the Board to pr ovide (with the Paren t’s requisit e participati on) the re mainder of

It woul d be inequitabl e to exclude from re imbursement the ser vices that 16 were o btained betwee n Septe mber 23, 2010, whe n the initi al administrative complaint was withdrawn without prejudice, and Se ptember 30, 2010, whe n it was refiled. That brief delay--which was nece ssitated by the Parent’s n eed to obtain new counsel--did not prejudice the Board. 35the total val ue as compensator y education to comm ence at the con clusion of

li tigat ion. We leave the mechanics of s tructuring the compensatory education award to the district court’s sound equi table discretion, although the court may wi sh to consult remedies that we have en dorse d in the past. See Streck v. Bd. of Educ. of the E. Greenb ush Ce nt. Sch. D ist., 408 F. App’x 411, 415 (2d Cir. 2010) (summary order ). Given the possibili ty that the Student’s educational needs have ch anged since the commencement of pr oceedings, we leave to the district court whether compensatory education should be limi ted to the kinds of ser vices specified in 17 the amended 2008-2009 IEP, or encompass analogous educationalservices appropr iate to the Student’s curre nt needs . See Reid ex re l. Reid v. D.C., 401 F.3d 516, 524 (D.C . Cir. 2005) (“[T]he ultim ate award [of compens atory education] must be reas onably calcul ated to provide the educational benefits that li kely would have accrued from spe cial educati on ser vices the school district should have supplied in the first place.”). Whatever its pre cise form, the re medy must

“The IDEA’s pen dency pr ovision does not entitle a di sabled child to keep 17 rece iving ser vices from the ex act same service pr oviders while his procee dings are pe nding; instead, it onl y entitl es the ch il d to receive the s ame gener al type of educational program.” T.M., 752 F.3d at 171. 36be “appr opriate in li ght of the purpose of the Act.” Burlington, 471 U.S. at 369

(internal quot ation marks omi tted).

CONCLUSION We have con sidered the parties’ re maining arguments and conclude that they are without merit. For the foregoing re asons, the judgment is affirmed in part and vacated in part. The cas e is remanded to the district court for fur ther procee dings consistent with thi s opinion.

37