I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the cost of the student's privately-obtained services delivered by McDonald Enhanced Learning (McDonald Learning) for the 2024-25 school year.  The district cross-appeals from the IHO's interim decision on pendency and from the portion of the IHO's decision which denied its motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student has been the subject of a prior State-level appeal (Application of a Student with a Disability, Appeal No. 24-402).  Accordingly, the parties' familiarity with this proceeding is presumed, and the facts and procedural history of this case will not be recited in detail.

A Committee on Preschool Special Education (CPSE) convened on June 22, 2022 determined that the student was eligible for special education as a preschool student with a disability, and developed an individual education program (IEP) for the student for the 2022-23 school year (Parent Ex. B at p. 3).[1]  The June 2022 CPSE recommended one 60-minute session per month of parent counseling and training, and that the student receive 10 hours per week of special education itinerant teacher (SEIT) services in a group of three, one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of speech-language therapy in a group of two, two 30-minute sessions per week of individual occupational therapy (OT), and two 30-minute sessions per week of individual physical therapy (PT), all on a 12-month basis (id. at pp. 1, 18, 19).[2]

On July 18, 2024, a CSE convened and found the student eligible for special education as a student with autism (Parent Ex. C at pp. 1, 19).[3]  The CSE developed an IESP for the student and recommended that the student receive four periods per week of group special education teacher support services (SETSS), one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, 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 group counseling services (id. at p. 16).[4]  All the student's services were to be delivered in English (id.).  Additionally, the parent was to be provided with one 60-minute session per week of parent counseling and training for five weeks (id.).

On September 6, 2024, the parent signed a contract with McDonald Learning, which stated that she was "liable to pay . . . the full amount for all services delivered" in the event she was unable to secure funding from the district (Parent Ex. D).  The contract further stated that the service type was "SEIT 10" for the school year "09-01-2024 - 06-30-2025" and the parent further agreed to a rate of $195 per hour for "SETSS/SEIT" (id.).

On September 23, 2024, the parent sent the district a written ten-day notice, informing the district that she disagreed with the student's July 2024 IESP and would obtain private special education services if the district failed to implement the services the parent claimed the student required (Parent Ex. I).

A. Due Process Complaint Notice

In a 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. A at p. 1).[5]  According to the parent, the CSE failed to develop an appropriate IESP for the student, arguing that the district failed to consider sufficient evaluative and documentary material when making its recommendations and developing its goals for the student (id. at p. 2).  Additionally, the parent alleged that the district failed to provide the parent with a meaningful opportunity to participate in the decision-making process (id.).  Further, according to the parent, the district failed to make available a provider for the student's recommended services (id.).

The parent requested a finding that the district failed to provide the student with a FAPE for the 2024-25 school year and pendency "based on the last agreed upon placement of the [s]tudent" (Parent Ex. A at p. 3).[6]  Additionally, the parent requested an award of reimbursement for 10 hours per week of SEIT services at enhanced rates, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual PT (id.).

In a motion to dismiss dated October 15, 2024, the district requested that the IHO dismiss the parent's due process complaint notice on the ground that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims (IHO Ex. I). 

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on December 11, 2024 (Tr. pp. 11-27).  In a finding of fact and decision dated January 13, 2025, the IHO denied the district's motion to dismiss for lack of subject matter jurisdiction (IHO Decision at p. 3, n.1).  The IHO further found that the basis of the student's pendency was the student's 2022 IEP (id. at p. 4).  The IHO applied a Burlington/Carter analysis and found that the district failed to meet its burden to prove that it provided the student a FAPE for the 2024-25 school year because it failed to provide any evidence to explain the rationale behind the recommendations made by the July 2024 CSE (id. at pp. 5-6).  Additionally, the IHO found that the district failed to demonstrate how the student's July 2024 IESP was "meaningfully calculated" to confer educational benefits to the student, nor did the district present any evidence that it implemented any services for the student (id. at p. 6).

The IHO went on to find that the parent failed to meet her burden to show that the unilaterally-obtained services from McDonald Learning were appropriate (IHO Decision at p. 7).  More specifically, the IHO found that SEIT services were not an appropriate form of relief and denied the parent's request for 10 hours per week of SEIT services (id.).  The IHO reasoned that SEIT services, as defined by State regulations, are for preschool students with disabilities; therefore, the IHO found that it was inconsistent with State regulations for a school district to deliver a service designed exclusively for preschool students to a school-aged student (id.).  The IHO noted that the parent had submitted a three-page progress report that recommended that the student continue to receive SEIT services, but also stated on the same page that the student had a SETSS provider (id.).  The IHO found that the progress report was not credible because of this inconsistency (id.).  Additionally, the IHO found that the evidence failed to establish that the student's individual special education needs were addressed by McDonald Learning, and that the instruction offered was reasonably calculated to enable the student to receive educational benefits (id. at pp. 7-8).

The IHO found that if the parent had demonstrated the appropriateness of the unilaterally-obtained SEIT services, she would have granted the funding at a fair market rate, not at the requested rate of $195 per hour because there was no information as to what the $195 covered or any explanation as to the rate in the hearing record (IHO Decision at p. 8 n.8).  The IHO also noted that she would have reduced funding due to the timing of the parent's ten-day notice and when services began, therefore, funding would have begun 10 calendar days after September 23, 2024 (id.).

As for the parent's request that the IHO "implement" the student's June 2022 IEP for a 12-month school year, even though the parent was only requesting funding for the 10-month portion of the 2024-25 school year, the IHO found that the parent did not provide evidence of substantial regression to support the student's need for an extended school year (IHO Decision at p. 8).  The IHO denied the parent's request for direct funding to implement the June 2022 IEP for the 2024-25 school year and ordered the CSE to reconvene with the parent within 30 school days to discuss whether the student should receive any individual educational instruction (id. at p. 9).  Regarding pendency, the IHO found that pendency lies in Application of a Student with a Disability, Appeal No. 24-402, and the last agreed upon program was the student's June 2022 IEP (id.).

IV. Appeal for State-Level Review

The parent appeals the portion of the IHO's decision that found that the parent had failed to demonstrate the appropriateness of the unilaterally obtained services from McDonald Learning.  Specifically, the parent argues that the IHO misapplied State regulations and went outside her discretion in her Burlington/Carter analysis of the appropriateness of the unilaterally obtained services and equitable considerations.  The parent argues that "the IHO relied on minor inconsistencies" regarding the use of the terms SEIT and SETSS to discredit the progress report and failed to provide the parent with an opportunity to clarify the student's services, rather than considering the totality of the circumstances and assessing whether the services were appropriate to address the student's needs.  The parent asserts that the evidence shows that the provider is implementing tailored interventions to address the student's deficits.  The parent also argues that the IHO erred by stating that she would reduce the awarded rate for services from $195 per hour to a market rate due to equitable considerations.  On appeal, the parent also seeks the district to fund a bank of compensatory hours for missed PT at a reasonable market rate.

In its answer and cross-appeal, the district argues that the IHO properly denied the parent's requested relief because the hearing record supports the IHO's finding that the parent failed to meet her burden under Burlington/Carter to show that the unilaterally obtained services were appropriate.  Further, the district argues that the IHO properly found that the parent's award should be reduced on equitable grounds.  Additionally, the district argues that the parent's request for compensatory PT should be denied because the parent did not request this relief in her due process complaint notice or at the impartial hearing.  The district cross-appeals from the IHO's pendency order, arguing that the stay-put placement consists of SETSS and does not include SEIT services.  Additionally, regarding pendency, the district argues that the IHO erred in stating that pendency was effective as of the date of the due process complaint notice filing, because the SRO decision which pendency was based upon was not in effect as of September 30, 2024.  The district also asserts in a cross-appeal that the IHO lacked subject matter jurisdiction to hear this matter.

In an answer to the district's cross-appeal, the parent argues that Application of a Student with a Disability, Appeal No. 24-402 awarded 80 percent funding for 10 hours per week of SETSS and includes 10 hours of specially designed instruction that was not in dispute in that proceeding.  The parent argues that whether the services are described as SEIT or SETSS should not preclude pendency rights; the IHO found sufficient similarity in the services delivered and the district failed to present evidence to the contrary.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location 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]).[7]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[8]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

The parties do not dispute the IHO's finding that the district denied the student a FAPE for the 2024-25 school year.  Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Subject Matter Jurisdiction

Next, it is necessary to address the issue of subject matter jurisdiction raised by the district in its motion to dismiss and then reasserted in its answer and cross-appeal.  Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[9]

Education Law § 3602-c, concerning students who attend nonpublic schools, 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 section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[10]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.

In 2007 the State Department of Education issued guidance further interpreting Education Law § 3602-c after legislative amendments in 2007 took effect, which provides that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – 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 3206-c," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago and then dramatically intensified to tens of thousands of due process filings per year within certain regions of this school district in the last several years.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[11]

In its answer and cross-appeal, the district contends that the decision does not change the plain meaning of the Education Law and that under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services."  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[12]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed as further described below.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or if certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception of when exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP.'"  (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 (2d Cir. 2009); quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" (id. at p. 7).[13]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to go further to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

B. Unilaterally-Obtained Services

Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA.  Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services.  "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling.  They do so, however, at their own financial risk.  They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).

The parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[14]  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Turning to a review of the appropriateness of the unilaterally obtained services, the federal standard for adjudicating these types of disputes is instructive.

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).  Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Bd. of Educ. v. Rowley, 458 U.S. 176, 203-04 [1982]; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]).  A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).  The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14).  Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]).  "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207).  Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65).  A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.  Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

1. The Student's Needs

The parent appeals from the IHO's finding that the unilaterally-obtained services during the 2024-25 school year were not appropriate due to "inconsistent terminology" rather than assessing whether the services were appropriate to meet the student's needs.  The parent also argues that the IHO erred by finding that the parent failed to show why the student required 10 hours per week of such services and failed to consider the student's most recent evaluation which showed her academic deficits and difficulty with self-regulation and attention.

Although not in dispute, a brief discussion of the student's needs provides context for the issue to be resolved, namely, whether the unilaterally-obtained services were appropriate to address the student's unique special education needs.  Review of the student's June 2022 CPSE IEP shows that she presented with global delays in cognitive, academic, social/emotional, language, motor, adaptive behavior, and sensory processing skills (see Parent Ex. B at pp. 3-8).  At that time, "[w]ith the support of her SEIT and related service providers, [the student] [wa]s involved in all appropriate activities for a [p]reschooler" (id. at p. 9).  The CPSE recommended that the student receive 10 hours per week of SEIT services in a group (1:3) at her preschool, together with individual and group speech-language therapy, and individual OT and PT (id. at p. 18).

A psychoeducational evaluation of the student was conducted in May 2024 (see Parent Ex. C at p. 1).  Results of the assessment included in the student's July 2024 IESP indicated that the student's full scale IQ was in the low average range, with verbal comprehension and processing speed skills in the low average range, and fluid reasoning, visual-spatial, and working memory skills in the average range of cognitive functioning (id. at pp. 1-3).  Assessments of the student's academic achievement skills yielded scores in the average range for word reading and reading comprehension, and in the low average range for written language and overall math skills (id. at pp. 3-4).  The July 2024 IESP indicated that the student's "receptive and expressive speech patterns,""[i]nformation [p]rocessing" and "attentional, planning and organization skills seemed adequate for testing purposes" (id. at pp. 2, 3).

Regarding social skills, the July 2024 IESP indicated that the student presented "as a friendly youngster who relate[d] well with others," "demonstrate[d] an understanding of social appropriateness and [wa]s aware of the consequences of her actions" (Parent Ex. C at p. 4).  According to information from a February 2024 counseling report included in the IESP, the student was "an eager participant in practicing her social skills during various games and specifically designed activities" during group counseling sessions, and she was making "slow steady progress towards [her] goals" (id.).  As for the student's physical development, the IESP reflected information from a June 2024 OT progress report, that indicated services addressed her "sensory processing skills, motor coordination, and fine motor/handwriting development" (id. at p. 5).  At that time, the student followed two-step commands with reminders, displayed fair to moderate motor planning and bilateral coordination skills, worked hard to building hand strength and fine motor skills, maintained a tripod grasp when writing, used scissors with 60-70 percent accuracy, and displayed good visual perceptual skills (id.).  Additionally, regarding gross motor skills, the IESP reflected parent concerns that the student tired easily when ascending and descending stairs and playing on playground equipment, and although the parent was reportedly "unsure" whether the student received PT, the parent opined that the student would benefit from "continued session[s] to address concerns with gross motor abilities" (id.).

The July 2024 CSE identified the following supports and services to address the student's management needs: preferential seating, multisensory approach to decoding/reading, direct instruction, rote repetition, memorization, visuals, hands-on learning activities, manipulatives, scaffolding, verbal prompts, small groups, word wall, related services, positive reinforcement, and encouragement, and concluded that the student "presente[d] with academic, sensory processing, fine and gross motor delays," "speech and language delays," and struggled with expressing her feelings and interacting with peers (Parent Ex. C at p. 6).

2. Services From McDonald Learning

According to the coordinator of services between the student's nonpublic school and McDonald Learning (coordinator), the student had received "a diagnosis of [a]utism [s]pectrum [d]isorder and present[ed] with receptive, expressive and social pragmatic language deficits that impact[ed] her ability to excel in her academic performance as well as her social emotional interactions" (Parent Ex. E ¶¶ 1, 13).  The coordinator testified that the student received 10 hours per week of SEIT services, delivered by a "New York State certified special education teacher" at her mainstream nonpublic school (Parent Ex. E ¶¶ 7-10; see Parent Ex. F).  Additionally, the coordinator testified that goals were developed for the student, which were "reviewed as necessary," and her progress was "measured through quarterly assessments, consistent meetings with the provider and support staff, observations of the student in the classroom and session notes" (id. ¶¶ 11-12).

According to the coordinator, the SETSS provider and the student were "working on social emotional learning, reading, writing and math" (Parent Ex. E ¶ 14).  The student had "trouble sharing, conversating, and playing with her peers [] which ma[de] it difficult for her to make meaningful relationships" (id.).  Additionally, the student struggled during transitions, and needed visual cues (e.g. sand timer, daily schedule chart) to help her change activities (id.).  The coordinator testified in an affidavit that the student's reading skills were below grade level, and she was unable to recall words and sounds (id.).  In math, the student could not count to 100 by ones or complete simple equations due to reading and comprehension deficits (id.).  To address these needs, the coordinator testified that the SETSS provider "br[oke] down her caseload into smaller steps in order to help [the student] finish her work," and used role play, positive reinforcement, and "multiple exercises and activities catered to [the student's] needs" (id.).

The hearing record contains a November 2024 SETSS progress report, which indicated that the student, who was in first grade at the nonpublic school, was "performing at grade level K in math, reading, and writing" (Parent Ex. G at p. 1).[15]  In reading, the SETSS provider reported that the student followed words from left to right, named all letters of the alphabet, blended sounds to read short CVC words, and was "learning to improve her letter sound memorization" (id.).  Although the student had made progress identifying vowel sounds and blending sounds together, she struggled with reading grade level passages smoothly and accurately, and displaying "full comprehension of the story" (id.).  To address reading comprehension needs, the SETSS provider reported using a graphic organizer and visual aids and indicated that she needed "1:1 instruction to reinforce and review learned skills" (id. at pp. 1, 3).  The SETSS provider developed reading goals for the next three months, to improve the student's ability to demonstrate consistent tracking, accurately orally blend syllables to form complete words, accurately "decode grade-level appropriate sight words," and fluently read age-appropriate books (id. at p. 2).

In writing, the November 2024 SETSS progress report reflected that the student wrote all the letters of the alphabet and described that the student was working on writing short sentences and learning when and where to put punctuation marks (Parent Ex. G at p. 1).  According to the report, the student struggled to maintain a grasp on a pencil and "[wa]s often tired from writing," taking longer than her peers to stay on task and complete writing assignments (id.).  The SETSS provider reported that the student presented with delays in her written expression and writing skills, exhibited "weak imaginative skills," and needed assistance to organize her thoughts (id. at pp. 1-2).  Further, the report indicated that the SETSS provider used a graphic organizer to help the student brainstorm her thoughts, and that she worked well with a reward system and reinforcement to complete tasks (id. at p. 2).  The SETSS provider developed writing goals for the student to work on for the next three months including that she states her opinion about familiar topics, provide information about familiar topics, answer questions accurately using recall and experiences, and clearly narrate events (id.).

Regarding the student's math skills, the November 2024 progress report indicated that the student showed strengths in counting and identifying numbers 1-20, adding single digit numbers and writing a number equation to demonstrate it, and was learning how to subtract single digit numbers (Parent Ex. G at p. 1).  According to the report, the student struggled counting to 100 by 1s and 10s and needed support to understand that "numbers increase in value as they move up" (id.).  She also had difficulty writing numbers 0-50 correctly and "mix[ed] up her teen numbers" (id.).  The SETSS provider developed goals to be worked on for the next three months to improve the student's ability to correctly represent numerals with objects up to 50, correctly state how numbers increase in value, correctly identify which group had more or fewer objects, and correctly solve addition problems within 10 using manipulatives (id. at p. 2).

According to the November 2024 progress report, the student had difficulty expressing her wants and needs, and although she got along with and enjoyed activities with peers, she struggled due to difficulty expressing herself appropriately, forming meaningful relationships, and picking up social cues (Parent Ex. G at pp. 2, 3).  Further, the report indicated that the student became overwhelmed with the workload and often expressed that she could not do it, or it was "so hard" (id. at p. 3).  Accordingly, the SETSS provider reported that the student "need[ed] SETSS & para help [to] her reach grade level social emotional expectations" and support to facilitate social interaction with peers (id. at pp. 2, 3).  Additionally, the SETSS provider reported incorporating "many social skills into [the student's] lessons to address some of [her] challenges," reading social stories, and using role play (id. at p. 3).

Review of the November 2024 progress report indicated that the student "learn[ed] best through hands on and tactile approach[s], using manipulatives and visual cues," and that she did well with a reward system and "constant immediate gratification for any work" completed (Parent Ex. G at p. 3).  In addition to the supports and strategies described above, the SETSS provider reported that she used repetition, diagrams, pictures, tables, and instruction broken down into simple tasks to support the student (id.).  The SETSS provider indicated that the student "require[d] continued SEIT services [and] related services for academic success," recommending that she continue to receive 1:1 SETSS and "para" support to reach her academic goals, and noting that she "require[d] lots of 1:1 support to enable her to keep up with the mainstream setting to the best of her ability" (id.).

Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.

Here, given the lack of evidence concerning how the SEIT services or SETSS  the student received supported her in her general education classroom, the lack of further detail regarding the use of a "para" as part of her educational program at the nonpublic school, and the dearth of any evidence regarding whether the student is receiving OT, PT, speech-language therapy, or counseling services, or how the student's needs in these areas were otherwise addressed, the totality of the circumstances does not support a reimbursement or funding award for the unilaterally-obtained SEIT services or SETSS.  Accordingly, the evidence in the hearing record does not support disturbing the IHO's finding that the parent failed to meet her evidentiary burden that the SEIT services or SETSS provided by McDonald Learning to the student for the 2024-25 school year were appropriate to meet the student's unique needs.

C. Pendency

The district asserts that the parent effectively transferred the student from one educational program to another during pendency by obtaining SEIT services when the undisputed basis of pendency, Application of a Student with a Disability, Appeal No. 24-402, was an unappealed decision which ordered SETSS and speech-language therapy.  The parent argues that whether the services are described as SEIT or SETSS does not preclude the student's receipt of pendency.  Regarding the district's argument that pendency should not vest until October 22, 2024, the issuance date of SRO decision 24-402, the parent argues that the district's argument is unsupported by the IDEA or applicable precedent.

As an initial matter, the student's entitlement to a pendency placement in this matter began with the filing of the due process complaint notice on September 30, 2024 (see Parent Ex. A).  It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]).

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906; 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 (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).  Pendency is not based on a particular location but is focused on the general level and type of services (see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents, 629 F.2d at 753, 756).

The hearing record supports the IHO's finding that Application of a Student with a Disability, Appeal No. 24-402 is the partial basis of pendency in this matter.  In SRO decision 24-402, the SRO found the unilaterally-obtained SETSS and speech-language therapy provided by McDonald Learning were appropriate to address the student's unique needs (Parent Ex. H at pp. 13, 16-17).  Regarding equitable considerations, the SRO found that the parent's conduct warranted a 20 percent reduction in direct funding (id. at pp. 12-17).  As a result, the SRO awarded the parent funding for 80 percent of the costs of up to 10 hours per week of SETSS and 60-minutes per week of speech-language therapy delivered by McDonald Learning during the 2023-24 school year (id. at p. 17).

Accordingly, the student was entitled to receive the special education services ordered in Application of a Student with a Disability, Appeal No. 24-402, which consists of funding for 80 percent of up to 10 hours per week of SETSS, and 60-minutes per week of speech-language therapy provided by McDonald Learning, as pendency from October 22, 2024, the date of the decision and order in that matter (Parent Ex. H at p. 16).  In a proceeding such as this where SEIT services and SETSS are used interchangeably to describe the same services, and the student is school-aged, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program.  Accordingly, I find no reason to disturb the IHO's finding regarding that the portion of pendency for the 2024-25 school year which is based on the unappealed IHO order in Application of a Student with a Disability, Appeal No. 24-204 (IHO Decision at p.).

However, a note of clarification is warranted with respect to that portion of the IHO's decision which stated that pendency is based both on the 2022 preschool IEP, as the parties' last agreed upon placement for the student, and the unappealed IHO order in Application of a Student with a Disability, Appeal No. 24-204 that was issued on October 22, 2024, as previously discussed (IHO Decision at p. 9).  The IHO is correct in that the 2022 CPSE IEP constituted pendency for the student from the filing of the due process complaint notice on September 30, 2024 until October 22, 2024 at which time the issuance of the unappealed decision and order in Application of a Student with a Disability, Appeal No. 24-402 constituted a pendency-changing event and became the basis for pendency from October 22, 2024 until the date of this order. As a result, there is no reason to disturb the IHO's decision on pendency in this matter.

VII. Conclusion

The IHO had subject matter jurisdiction over the parent's claims and the district's cross-appeal asserting otherwise is rejected.  Additionally, the district has not appealed from the IHO's finding that it denied the student a FAPE.  There is no reason to disturb the IHO's finding that the parent did not meet her burden to demonstrate that the unilaterally-obtained services provided by McDonald Learning were appropriate to address the student's needs.  Moreover, as ordered by the IHO, the district is obligated to provide pendency services for the student in accordance with her 2022 preschool IEP for the period from September 30, 2024 to October 22, 2024 and to fund pendency services for the student consistent with Application of a Student with a Disability, Appeal No. 24-402 from October 22, 2024 until the date of this order.

I have considered the parties' remaining contentions and find they are unnecessary to address in light of my determinations.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.