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 Kinship Resources (Kinship) for the 2024-25 school year.  The district cross-appeals from that portion of the IHO's decision regarding the student's pendency programming.  The appeal must be sustained in part.  The cross-appeal must be sustained.  The matter is remanded to the IHO for further proceedings.

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]).

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

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

Given the ultimate disposition of this appeal, a full recitation of the student's educational history is unnecessary.  Briefly, a Committee on Preschool Special Education (CPSE) convened on March 1, 2023, found the student was eligible for special education as a preschool student with a disability, and developed an IEP with an implementation date of March 2, 2023 (Parent Ex. C at pp. 1, 11).[1]^, [2]  The CPSE recommended that the student receive 20 30-minute sessions per week of individual special education itinerant teacher (SEIT) services in Russian, two 30-minute sessions per week of individual speech-language therapy in Russian, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual physical therapy (PT), all delivered at an early childhood location selected by the parent on a 12-month basis (id. at pp. 11-12).[3]  During the 2023-24 school year, the student attended Steps to Success, described as a "day care center," and received SEIT services from an agency (Parent Exs. G at p. 1; O ¶¶ 2-4).

An initial CSE convened on April 8, 2024, determined that the student was eligible for school-age special education as a student with a speech or language impairment, and developed an IESP for the student with an implementation date of September 1, 2024 that recommended 10 periods per week of special education teacher support services (SETSS) in a group in Russian, two 30-minute sessions per week of individual speech-language therapy in Russian, two 30-minute sessions per week of individual OT in English, two 30-minute sessions per week of individual PT in English, and one 30-minute session per week of individual counseling in Russian for the 2024-25 school year (kindergarten) (Parent Ex. D at pp. 1, 14-15).[4]^, [5]  The IESP noted that the student was parentally placed in a nonpublic school (id. at p. 17).

On July 1, 2024, the parent signed a contract with Roger Gorvitz Occupational Therapy PC (Gorvitz) to provide the student with two 30-minute sessions per week of individual OT at Steps to Success (Parent Ex. L).  According to the terms of that contract, the parent averred that the student had an "entitlement to equitable special education services aris[ing] under Education Law § 3602-c[2][b][1]" (id.).  Further, the parent agreed to initiate due process proceedings against the district and acknowledged that she would be "obligated to pay the difference between the amount received [from the district as a result of the due process proceeding] and the amount due in accordance with a schedule agreed to in writing by the parties" (id.).  The contract set the hourly rate for OT services at $175 per hour for the 2024-25 school year (id.).

On August 27, 2024, the parent electronically signed a contract with Kinship Resources for the provision of the special education teacher services and related services as recommended in the student's last IEP or IESP (Parent Ex. I at pp. 1-3).  According to the terms of the contract, Kinship would "endeavor to provide special education teacher services and/or related services and supports included in the last-agreed upon IEP or IESP, or in accordance with [the student's] pendency mandates or an IHO/SRO final decision" (id. at p. 1).  The specific services to be provided were not specifically defined; however, the contract included an addendum setting forth rates for a variety of services (id. at p. 2, 4).  In addition, the parent agreed "to commence a due process hearing, in order to request full payment" by the district, and that she would be "liable for outstanding payments to Kinship" if she did not prevail at the hearing (id. at p. 2).  The parent selected to defer payment until the outcome of the due process hearing, and the "[d]eferred [r]ate" schedule reflected that the costs of bilingual SETSS/SEIT services was $240 per hour, bilingual speech-language therapy was $385 per hour, and counseling and PT were each $375 per hour for the 2024-25 extended school year (id. at pp. 3, 4).[6]

In a letter dated August 29, 2024, the parent notified the district that the student would be attending Steps to Success for the 2024-25 school year (Parent Ex. E).  In that letter, the parent asserted her belief that the student was not currently enrolled in an elementary school program and therefore he was entitled to an IEP, not an IESP (id.).

The student attended Steps to Success during the 2024-25 school year, received SETSS from Kinship, and it was "anticipated" that the student would receive OT services from Gorvitz (Parent Exs. O ¶ 6; N ¶ 4).

A. Due Process Complaint Notice

In an amended due process complaint notice dated September 30, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. B at pp. 1-4).[7]  Specifically, the parent asserted that the district failed to develop an IEP for the student for the 2024-25 school year (id. at p. 2).  According to the parent, although she informed the April 2024 CSE that she was unsure where she would be placing the student for the 2024-25 school year, the district improperly limited her options by developing an IESP instead of an IEP (id.).  The parent argued that because the program in which the student was placed was not a nonpublic school, the district should have known to develop an IEP for the student instead of an IESP (id.).

The parent further alleged that although the April 2024 CSE recommended a panoply of SETSS and related services for the student, it failed to assign service providers for any of the recommendations (Parent Ex. B at p. 2).  As the district never assigned providers for any of these services, the parent asserts she was compelled to seek out providers on her own (id. at pp. 2-3).

As relief, the parent sought findings that the district denied the student a FAPE for the 2024-25 school year and that the district should have prepared an IEP instead of an IESP (Parent Ex. B at p. 3).  The parent also sought an order directing the district to provide the student with 10 hours per week of individual or group (2:1) SEIT services/SETSS per week, two 30-minute sessions per week of individual speech-language therapy in Russian, two 30-minute sessions per week of individual PT, two 30-minute sessions per week of individual OT, and one 30-minute session per week of individual counseling in Russian, or funding for those services at enhanced rates (id.).  Additionally, the parent requested a bank of compensatory services for services missed due to the district's failure to develop and implement an appropriate IEP (id.).  Lastly, the parent requested an order of pendency, asserting that the student's "current educational placement" was based on the student's preschool IEP and the April 2024 IESP, which according to the parent, consisted of 10 hours per week of group SEIT services in Russian, and the related services described above (id. at pp. 3-4).

B. Impartial Hearing Officer Decision

Two prehearing conferences convened on August 19, 2024 and September 25, 2024, and an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 6, 2024 and November 27, 2024 (Aug. 19, 2024 Tr. pp. 1-11; Sept. 25, 2024 Tr. pp. 12-17; Nov. 6, 2024 Tr. pp. 1-41; Nov. 27, 2024 Tr. pp. 42-90).[8]  In an interim decision dated December 2, 2024, the IHO rejected the parent's contention that the student's pendency programming lay in the March 2023 CPSE IEP as that was not the student's current educational program (Interim IHO Decision at p. 5).  Rather, the IHO found that the parent had "altered" the student's program and therefore, pendency was based on the student's April 2024 IESP as modified by the agreement of the parties (id.).  As such, the IHO found that the student's pendency placement retroactive to the filing of the due process complaint notice on July 15, 2024 consisted of direct funding of the costs of equitable services including 10 periods per week of bilingual, group (2:1) SETSS, two 30-minute sessions per week of individual, bilingual speech-language therapy, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and one 30-minute session per week of individual, bilingual counseling (id. at p. 6).

In a decision dated December 19, 2024, the IHO found that, contrary to the parent's contention, the student's placement for the 2024-25 school year qualified as a nonpublic school for purposes of Education Law § 3602-c, and therefore entitled the student to equitable services under an IESP "only if a timely written request for services was made or that requirement was waived" (IHO Decision at p. 12).  While acknowledging some ambiguity in the statutory definition of a nonpublic school, the IHO nevertheless found that "any student on a regular attendance register (that is, attending some kind of school) for a school-aged program is removed from the IEP requirement and must request IESP services" (id.).  The IHO was further persuaded of the applicability of Education Law § 3602-c by the parent's testimony at the impartial hearing that the student was enrolled in a kindergarten class (id. at pp. 12-13; see Tr. p. 72).  Additionally, the IHO noted that in a contract for OT services dated July 1, 2024, the parent asserted that "the [s]tudent's entitlement to services arises under Education Law § 3602-c" (IHO Decision at p. 13; see Parent Ex. L).

Given the IHO's finding of the applicability of Education Law § 3602-c, the IHO concluded that the parent was required to request equitable services from the district on or before June 1, 2024 (IHO Decision at p. 13).  However, because the parent made no showing of any request for equitable services from the district prior to June 1, the IHO determined the student was not entitled to equitable services for the 2024-25 school year (id.).  Further, the IHO found that the district neither expressly nor impliedly waived the June 1 deadline (id.).

Finally, the IHO concluded that while the district should have prepared an IEP as well as an IESP given the parent's stated indecision regarding the student's placement for the 2024-25 school year, its failure to do so was merely a procedural violation that did not rise to the level of a denial of FAPE (IHO Decision at p. 13).

Having found that the parent failed to request equitable services by June 1, 2024, the IHO concluded her inquiry without addressing either the appropriateness of the student's unilaterally obtained services or whether equitable considerations weighed in favor of granting funding for those services (IHO Decision at p. 14).  The IHO ordered the district to deliver, with district providers, a bank of compensatory hours consisting of the related services which were not provided consistent with the pendency order and dismissed the parent's other claims with prejudice (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the student's entitlement to services arose from Education Law § 3602-c instead of the IDEA.  The parent further argues that New York State Education Department (NYSED) guidance supports the conclusion that the student was not parentally placed for purposes of Education Law § 3602-c, and that the district was therefore required to create an IEP for the student.  According to the parent, because the district was required to create an IEP for the student, the parent was not subject to the June 1 deadline.  Additionally, the parent contends that the district's failure to create an IEP for the student constitutes more than a mere procedural violation and in fact rises to the level of a denial of a FAPE.  For relief, the parent seeks a finding that the student was entitled to a FAPE, funding to implement the services outlined in the April 2024 IESP, and an order awarding a bank of compensatory education for the services not provided by the district.

In an answer with cross-appeal, the district argues that the IHO should have denied the student's entitlement to funding for services on the grounds that the parent did not meet her burden of demonstrating the appropriateness of such services.  According to the district, none of the student's service providers testified with sufficient detail to allow the IHO to properly assess appropriateness.  Further, the district notes the lack of progress reports or assessments that indicate how the services were being provided.

Furthermore, in its cross-appeal, the district argues that the order on pendency issued by the IHO should be vacated.  According to the district, the IHO's pendency order erroneously combines various elements of the student's CPSE IEP and April 2024 IESP.  The district claims that pendency should arise exclusively out of the CPSE IEP because that was the last program agreed on by both parties.  The district contends that no further orders with respect to pendency should be issued on appeal.

In an answer to the cross-appeal, the parent challenges the district's characterization of the evidence regarding the appropriateness of the student's services.  The parent argues that the district's issues with the student's services are too vague to properly address.  According to the parent, the evidence in the hearing record demonstrates that the service providers offered services to the student that adequately addressed his needs.  Regarding the district's cross-appeal seeking vacatur of the IHO's order on pendency, the parent argues that the district's cross-appeal is untimely because the parent's appeal was only from the IHO's final decision, which was separate from the IHO's earlier interim decision on pendency.  In addition, the parent argues that the district violated the stay-put provision and should be made to reimburse the parent for all services specified by the IHO's pendency order.  Finally, the parent attaches additional evidence for consideration with her answer to the cross-appeal.

The district submits a reply to the parent's answer to the cross-appeal asserting that the district's cross-appeal is timely and objecting to the parent's additional evidence.[9]

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 least restrictive environment (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]).[10]

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. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. FAPE for the 2024-25 School Year

The parent appeals from the IHO's finding that the district offered the student a FAPE despite its failure to develop an IEP for the student for the 2024-25 school year.  Here, the district developed an IESP following the student's April 2024 turning-five CSE meeting (see Parent Ex. D).  Thereafter, the district did not develop an IEP for the student for the 2024-25 school year, prompting the parent to send the district a letter alerting it to the lack of a public school placement for the student (Nov. 6, 2024 Tr. pp. 28-30; Parent Ex. E).  In the decision, the IHO opined that while the district should have developed both an IEP and an IESP given the parent's expressed uncertainty as to where the student would attend school in fall 2024, the district's failure to do so constituted "merely a procedural violation that did not result in the denial of a FAPE because it did not cause a deprivation of educational benefits or deny the [p]arent the opportunity to participate in the decision-making process" (IHO Decision at p. 13).  The IHO then discussed her skepticism of the parent's intent regarding the availability of a public school placement in an effort to support her ultimate finding that the lack of an IEP did not deprive the student of a FAPE (id. at pp. 13-14).  Notably, the IHO did not analyze the parent's intent in the context of balancing equitable considerations; instead she analyzed the parent's intent in the context of whether the district offered the student a FAPE and the IHO ended her inquiry upon finding that the student had not been denied a FAPE (id. at p. 14).  The IHO, in considering the parent's intent when analyzing whether the district offered the student a FAPE, improperly shifted the burden away from the district to show that it provided a FAPE to the student (see Educ. Law § 4404[1][c]; see also C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]).

Relevant to the district's obligation to offer the student a FAPE after having developed the IESP, in its Official Analysis to Comments in the Federal Register, the United States Department of Education noted that, when a student is placed in a nonpublic school located outside of the district, a student's district of residence is responsible for providing a FAPE but further indicated that, "[i]f the parent makes clear his or her intention to keep the child enrolled in the private elementary school or secondary school located in another LEA, the LEA where the child resides need not make FAPE available to the child" (71 Fed. Reg. 46,593 [Aug. 14, 2006]).  The United States Department of Education has maintained this position in relatively recent guidance answering the following question:

If a parent makes clear his or her intention to keep the child with a disability enrolled in the private school, is the LEA where the child resides obligated to offer FAPE to the child and develop an individualized education program (IEP) for the following school year, and annually thereafter?

Answer: No.  Absent controlling case law in a jurisdiction, after the LEA where the child resides has made FAPE available to the child, and the parent makes clear his or her intention to not accept that offer and to keep the child in a private school, the LEA where the child resides is not obligated to contact the parent to develop an IEP for the child for the following year and annually thereafter.  However, if the parent enrolls the child in public school in the LEA where the child resides, the LEA where the child resides must make FAPE available and be prepared to develop an IEP for the child.

("Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools" 80 IDELR 197 [OSERS 2022] [emphasis added]; see also "Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 at p. 12, VESID Mem. [Sept. 2007], available at https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

Courts have grappled with the effect of a parent's intention to place a student at a nonpublic school on a district's obligation to provide the student with an IEP.  On the one hand, it is clear that a district violates the IDEA by refusing to convene a CSE meeting to develop an IEP when the parent of a student who is parentally placed in a private school is making inquiries about potentially enrolling a student in a public school for special education programming and an outdated IEP in that instance is not a permissible placeholder (Bellflower Unified Sch. Dist. v. Lua, 832 Fed. App'x 493, 496 [9th Cir. Oct. 26, 2020]).  However, in E.T. v. Board of Education of Pine Bush Central School District, after concluding that the district retained an obligation to offer the student a FAPE, the court found that the "issue of the parents' intent [was] a question that inform[ed] the balancing of the equities rather than whether the district had an obligation to the child under the IDEA" (2012 WL 5936537, at *16 [S.D.N.Y. Nov. 26, 2012]; see R.G. v. New York City Dep't of Educ., 585 F. Supp. 3d 524, 539 [S.D.N.Y. 2022] [examining the parents' intent as an equitable consideration]).  In contrast to the court's holding in E.T., at least two federal district courts have found that an objective manifestation of the parent's intention to place a student in a nonpublic school is a threshold issue regarding whether a district remained obligated to offer the student a FAPE (see Dist. of Columbia v. Vinyard, 971 F. Supp. 2d 103, 108-10 [D.D.C. 2013] [finding the court's explanation in E.T. "illogical"]; Shane T. v. Carbondale Area Sch. Dist., 2017 WL 4314555, at *15-*20 [M.D. Pa. Sept. 28, 2017]).[11]

A school district has a continuing statutory requirement to meet and revise a student's IEP periodically, but not less than annually.  The IDEA and State regulations require the CSE to meet "at least annually" to review and, if necessary, to revise a student's IEP (see 20 U.S.C. § 1414[d][4][A]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]); however, there is no requirement that an IEP be produced at a parent's demand (Cerra, 427 F.3d at 194).  Further, the regulations do not preclude additional CSE meetings, specifically prescribe when the CSE meeting should occur, or prevent later modification of an IEP during the school year through use of the procedures set forth for amending IEPs in the event a student progresses at a different rate than anticipated (20 U.S.C. § 1414[d][3][D], [F]; 8 NYCRR 200.4[f]-[g]).  The IDEA's implementing regulations and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability (34 CFR 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 [S.D.N.Y. Aug. 23, 2012], aff'd, 530 Fed. App'x 81 [2d Cir. July 24, 2013]; B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 [E.D.N.Y. 2012]).  As a matter of State law, the school year runs from July 1 through June 30 (see Educ. Law § 2[15]).  Failure to provide a finalized IEP before the beginning of the school year is a procedural violation that may result in a finding that the district failed to offer the student a FAPE (see Application of a Student with a Disability, Appeal No. 15-099 [finding that a district's failure to finalize an IEP until after the start of the school year contributed to a denial of FAPE despite evidence of the parties' extensive efforts to locate an appropriate placement]).

Here, there is no dispute that the parent was undecided as to whether she would prefer a public or private placement for the student and made that uncertainty known to the April 2024 CSE (Nov. 6, 2024 Tr. pp. 30-31; Parent Exs. D at pp. 3-4; E; O ¶ 4).  However, the parent's uncertainty does not alleviate the district's responsibility to offer the student a FAPE.  To the extent that the IHO considered the parent's uncertainty regarding the proper placement for the student as a mitigating factor to the district's FAPE obligation, this was error.  Based on the above, the district was still responsible to offer the student a FAPE, and its failure to develop an IEP for the student's 2024-25 school year resulted in the denial of a FAPE.  Accordingly, the portion of the parent's appeal asserting that the IHO erred in finding that the district did not deny the student a FAPE for the 2024-25 school year is sustained.

B. June 1 Deadline

Turning to the portion of the appeal related to equitable services, the parent appeals from the IHO's finding that because she determined Education Law § 3602-c applied in this matter, the parent "needed to show a timely request for equitable services by June 1 unless the district clearly and unmistakably waived that requirement" (IHO Decision at p. 13).  The IHO found that the parent made  "no timely written request for equitable services," and that there was no "waiver of that requirement" by the district (id.).

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

Here, the district raised the June 1 affirmative defense in its response to the due process complaint notice (Dist. Response to Due Process Compl. Not. at p. 1), at the prehearing conference (Aug. 19, 2024 Tr. pp. 5-8), and at the impartial hearing (Nov. 6, 2024 Tr. pp. 7-8; Nov. 27, 2024 Tr. pp. 70-71).  During the impartial hearing, the parent confirmed that she had notified the district of her request for services by letter dated and sent August 29, 2024 (Nov. 27, 2024 Tr. p. 53; Parent Ex. E).  However, review of the parent's August 29, 2024 letter indicates that the parent was not requesting equitable services from the district, but was requesting development of an IEP for the student acknowledging that Steps to Success was not an elementary school placement (Parent Ex. E).

Significantly, State guidance explains that Education Law 3602-c "pertains only to parental placements in nonpublic elementary and secondary schools. It does not apply to a child who is less than compulsory school age continuing in a preschool program, even if the preschool program is located in the same building as a kindergarten or other elementary grade classrooms. These students would continue to be the responsibility of the district of residence through the CSE." ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Questions and Answers n. 17, available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students).

Turning to the parent's position that the student's placement during the 2024-25 school year made him ineligible for equitable services under Education Law § 3602-c, this argument must be rejected.  It should be noted that the parent's position on this issue has been inconsistent throughout the process.  Initially, as noted above, in her August 29, 2024 letter to the district, the parent indicated that the student was "not attending a[n] elementary school program yet" (Parent Ex. E).  At the August 19, 2024 prehearing conference, the parent's advocate initially indicated the student was enrolled in a preschool for the 2024-25 school year, but then stated in response to questioning by the IHO that "[the student was] in a kindergarten in a private preschool" (Aug. 19, 2024 Tr. p. 4).  The advocate stated that because the student's placement did "not exceed the age of five," it was not a private school, nor was it a public school by definition, the student was not entitled to services under Education Law § 3602-c (id. at pp. 4-6).  However, at the impartial hearing, the parent testified that the student was enrolled in a kindergarten class at Steps to Success instead of a preschool class (Nov. 27, 2024 Tr. p. 55).  As noted by the IHO, further evidence indicating the student was enrolled in a kindergarten class was the fact that the parent signed a contract for the provision of OT services on July 1, 2024, attesting that "the [s]tudent's entitlement to equitable services arises under Education Law § 3602-c[2][b][1]" (Parent Ex. L).  Thus, it is unclear from the hearing record and the parent's representations whether the parent student was parentally placed in a kindergarten class at Steps to Success for the 2024-25 school year, which would have entitled her to request equitable services under Education Law § 3602-c from the district.

Further, while it is possible for a district to expressly or impliedly waive the statutory requirement of the June 1 notice (Application of the Bd. of Educ., Appeal No. 18-088), the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).  While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver.

Indeed, the district did not show that it took any steps to implement the services outlined in the student's April 2024 IESP.  According to the parent's uncontroverted testimony at the impartial hearing, the district did not provide her with a list of service providers or otherwise contact her regarding the student (Nov. 27, 2024 Tr. p. 54).  Accordingly, there is no basis in the hearing record to suggest that prior to June 1, 2024 the district was aware that the parent was seeking equitable services for the 2024-25 school year or to disturb the IHO's finding that the district did not waive the June 1 notice requirement.

Accordingly, to the extent that the parent is seeking equitable services under Education Law § 3602-c, she was required to notify the district by June 1, 2024.  Her failure to do so justified the IHO's dismissal of her claims for services arising under Education Law § 3602-c.  Accordingly, the portion of the parent's appeal relating to equitable services arising under Education Law § 3602-c is dismissed.

C. Pendency

Initially, the parent's argument that the district's cross-appeal of the IHO's interim decision on pendency is untimely lacks merit.  State regulation provides that

[a]ppeals from an impartial hearing officer's ruling, decision, or failure or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404(4) of the Education Law.  However, in an appeal to the Office of State Review from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision, or failure or refusal to decide an issue.

(8 NYCRR 279.10[d]).  Further, when a respondent seeks to cross-appeal from an IHO's decision, they may appeal from all or a portion of the decision, as long as such appeal is contained within a timely answer (8 NYCRR 279.4[f]).  Because State regulations allow a party to challenge an interim decision when appealing the IHO's final decision on the merits and the district included its cross-appeal of the IHO's interim decision on pendency along with its timely answer, the district's cross-appeal will be considered herein.

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 T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. of the 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]).  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 (T.M., 752 F.3d at 170-71; Concerned Parents and 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 (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. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 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 [OSEP 2007]).

A pendency placement includes the general type of educational program including the classes, individualized attention, "and additional services a child will receive" (T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]).  Pendency is not a divisible,  a-la-carte program that may change at any given time as such a practice would undermine the "status quo" concept so prevalent in stay-put jurisprudence (see Application of a Student with a Disability, Appeal No. 21-014, Application of the Dep't of Educ., Appeal No. 19-039; Application of a Student with a Disability, Appeal No. 18-139 cf. N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 [W.D. Wash. Oct. 27, 2015] [finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement] , aff'd sub nom., 842 F.3d 1093 [9th Cir. 2016]).

In her interim decision on pendency, issued on December 2, 2024, the IHO found that the student's educational program during the pendency of this proceeding was based on the April 2024 IESP as modified by agreement of the parties (Interim IHO Decision at p. 5).  The IHO specifically found an "agreement" between the parties because the parent only challenged a portion of the services recommended in the April 2024 IESP and because she obtained SETSS for the student (id.).  However, pendency is not a divisible,  a-la-carte program that may change at any given time as such a practice would undermine the "status quo" concept so prevalent in stay-put jurisprudence (see Application of a Student with a Disability, Appeal No. 21-014, Application of the Dep't of Educ., Appeal No. 19-039; Application of a Student with a Disability, Appeal No. 18-139 cf. N.E. v. Seattle Sch. Dist., 2015 WL 12564236, at *4 [W.D. Wash. Oct. 27, 2015] [finding that a "multi-stage" IEP cannot be treated as divisible for purposes of pendency, explicitly rejecting the "divide-and-conquer" approach to determining the pendency placement] , aff'd sub nom., 842 F.3d 1093 [9th Cir. 2016]).  Accordingly, the April 2024 IESP cannot serve as the basis for pendency because the parent has not agreed to the entirety of it as a placement for the student (Parent Exs. A at p. 2; B at p. 2).  Therefore, pendency must lie in the last agreed-upon program, which was the student's March 2023 IEP (see Parent Ex. C).  Services recommended by the March 2023 CSE included 20 30-minute sessions per week of individual SEIT services in Russian, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual speech-language therapy in Russian, and two 30-minute sessions per week of individual PT (id. at p. 11).

Based on the foregoing, the district's cross-appeal seeking vacatur of the IHO's order on pendency is sustained as the student's educational program during the pendency of this proceeding is based on the student's last-agreed upon educational program as written in the March 2023 IEP.

D. Remand to IHO

Having found that the district failed to offer the student a FAPE for the 2024-25 school year, the merits of the parent's claim and request for relief remain to be addressed.

When an IHO has not addressed the issues raised in a due process proceeding, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims or arguments that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).  Here, although the IHO denied relief based on the June 1 defense, the IHO, as explained above, did not address whether the unilateral services were, under the totality of the circumstances, specially designed to address the student's unique special education needs; and whether equitable considerations would have warranted a denial or reduction of relief.  Therefore, the case must be remanded to the IHO for further evidentiary proceedings, if the IHO determines within her discretion that additional evidence is required to complete the record, and a determination on the issue of the appropriateness of the parent's unilateral placement of the student, including the student's special education instruction, related services, and placement of the student at Steps to Success and, if necessary, the IHO should also make a finding regarding the issue of equitable considerations.

VII. Conclusion

Although the parent's claim for equitable services under Education Law § 3602-c does not survive due to her failure to request such services prior to June 1, 2024, the district's failure to develop an IEP for the student and offer a public school placement constituted a denial of a FAPE for the 2024-25 school year.  Given this denial of a FAPE, a remand to the IHO is necessary for a determination of the appropriateness of the parent's unilateral placement of the student for the 2024-25 school year, including the student's placement at Steps to Success, as well as a balancing of equitable considerations.

Additionally, the IHO's order on pendency must be vacated because it erroneously determined pendency was based on the student's April 2024 IESP, a program specifically rejected by the parent.  As discussed above, the student's pendency program is based on the student's March 2023 IEP.

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision on pendency dated December 2, 2024, is hereby vacated; and

IT IS FURTHER ORDERED that for purposes of pendency the district shall directly fund 20 30-minute sessions per week of individual SETSS in Russian, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual speech-language therapy in Russian, and two 30-minute sessions per week of individual PT July 15, 2024 until the conclusion of these proceedings; and

IT IS FURTHER ORDERED that the IHO's decision is modified to reflect that the district denied the student a FAPE for the 2024-25 school year by not developing an IEP for the student; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the parent's unilateral placement of the student for the 2024-25 school year, including placement of the student at Steps to Success, was appropriate for the student, and if necessary, whether equitable considerations weigh in favor of granting funding for the costs of such unilateral services; and

IT IS FURTHER ORDERED that, in the event the IHO cannot hear this matter upon remand, another IHO shall be appointed.