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 that portion of a decision of an impartial hearing officer (IHO) that found respondent (the district) offered the student a free appropriate public education (FAPE) for the 2024-25 school year.  The district cross-appeals the IHO's interim order on pendency.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The parties' familiarity with this matter is presumed, and therefore the facts and procedural history of this case and the IHO decision will not be recited in detail.  Briefly, when the student was four years old (2023-24 school year) he attended a 12:1+2 special class where he received speech-language and occupational therapies (Dist. Ex. 8).  At the time, the student presented with cognitive and social/emotional delays, as well as delays in language acquisition, motor development, and processing auditory information (id.).

A CSE convened on March 22, 2024 for the student's Turning 5 meeting, and found the student eligible for special education services as a student with a speech or language impairment (Dist. Ex. 1 at pp. 1, 19).[1]  The CSE developed an IEP for the student with an implementation date of September 5, 2024, in which it recommended that the student attend a 12:1+1 special class for English language arts (ELA), math, social studies, and sciences (id. at p. 13-14).  The CSE also recommended that the student receive one 30-minute session per week of individual counseling services; one 30-minute session per week of group counseling services; two 30-minute sessions per week of individual occupational therapy (OT); one 30-minute session per week of group OT; two 30-minute sessions per week of individual speech-language therapy; and one 30-minute session per week of group speech-language therapy (id. at p. 14).

A committee on preschool special education (CPSE) convened on May 28, 2024 and found the student eligible for special education services as a preschool student with a disability (Parent Ex. B at pp. 1, 2).  The May 2024 CPSE recommended that, for July and August 2024, the student attend a 12:1+2 special class at an early childhood setting selected by the parents identified in comments as "Striveright" (sic) (id. at pp. 1, 19).  The CPSE also recommended that the student receive three 30-minute sessions per week of individual speech-language therapy; and two 30-minute sessions per week of individual OT (id. at p. 19).

On September 2, 2024, the parent signed a contract for the student to attend the Auditory Oral School of New York (AOSNY) for the 2024-25 school year (Parent Ex. G).[2]  The contract outlined the cost of attendance at AOSNY, including $91,300 for a "September – June Classroom Placement" and a $300 registration fee, totaling $91,600 (id.).  The contract also detailed additional services to be provided to the student including two 30-minute sessions per week of counseling, two 30-minute sessions per week of OT, and three 30-minute sessions per week of speech-language therapy, totaling $28,000 (id.).    The student began attending AOSNY for the 2024-25 school year on September 5, 2024 (Parent Ex. I).[3]

A. Due Process Complaint Notice

In a due process complaint notice dated September 11, 2024, the parent alleged that the March 2024 CSE developed an inappropriate program for the student for the 2024-25 school year and denied the student a FAPE (Parent Ex. A).  According to the parent, the CSE recommended a 12:1+1 special class instead of a 12:1+2 special class and this new program would not have provided the student with enough educational support (Parent Ex. A at p. 2).   In addition, the parent asserted that the district inappropriately "removed" summer services and transportation from the student's program (id. at pp. 6-7).  The parent also asserted that the assigned school was inappropriate for the student (id. at pp. 4-5).  The parent requested, among other things, an award of direct tuition payment to AOSNY for the student's attendance at AOSNY for the 2024-25 school year (id. at p. 6).

B. Impartial Hearing Officer Decision

After a pre-hearing conference on October 15, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 12, 2024 (Oct. 15, 2024 Tr. pp. 1-7; Nov. 12, 2024 Tr. pp. 1-82).[4]

In an interim decision dated October 15, 2024, the IHO found that the parties agreed that the student's program during the pendency of this proceeding was based on the May 2024 CPSE IEP (Interim IHO Decision at p. 5).  As of the hearing, the IHO found that the only dispute between the parties regarding pendency was where the student's pendency program was to be implemented (id.).  The IHO noted that the district did not exercise its right to determine where the student's pendency placement would be, nor did it determine a pendency placement for the student (id. at p. 6).  The IHO determined that the parent was entitled to an order on pendency consistent with the May 2024 IEP (id. at p. 7).  The IHO ordered the district to provide the student with special education and related services in accordance with the May 2024 CPSE IEP, which included attendance in a 12:1+2 special class five days per week; three 30-minute sessions per week of individual speech-language therapy; two 30-minute sessions per week of individual OT; and special transportation to and from school, with the student eligible for services during the 12-month portion of the school year (id.).

In a finding of fact and decision dated December 24, 2024, the IHO found that the district offered the student a FAPE for the 2024-25 school year (IHO Decision at pp. 3-9).  Specifically, the IHO found that to the extent that there were any procedural violations, they did not rise to the level of a denial of FAPE (id. at p. 5).  The IHO found that the CSE was duly constituted, that the IEP was based on sufficient evaluative data, and that the CSE fulfilled its procedural obligations in developing the student's March 2024 IEP (id. at p. 5-6).  The IHO also noted that the parent did not allege any procedural violations in her due process complaint notice, but during the closing arguments at the impartial hearing, the parent's attorney argued that there was "no 'explanation for the district's numerous procedural violations'" (IHO Decision at p. 6; see Nov. 12, 2024 Tr. p. 78).  The IHO then found that any allegations of a procedural violation were not within the scope of the hearing (IHO Decision at p. 6).

Turning to the substance of the March 2024 IEP, the IHO determined that the IEP appropriately reflected the student's present levels of academic achievement and functional performance at the time the IEP was developed, that the parent had not raised any disagreements with the present levels of performance in the IEP, and that the evidence in the hearing record established that the CSE incorporated the psychoeducational evaluation into the student's March 2024 IEP, which had been conducted about one month prior to the CSE meeting at issue (IHO Decision at p. 6).  The IHO also found that the goals developed by the CSE for the student were appropriate, measurable, and addressed the various areas of need for the student (id.).

Next, the IHO found that the March 2024 IEP recommendations were appropriate to confer an educational benefit to the student in the student's least restrictive environment (LRE) (IHO Decision at p. 6).  The IHO noted that the CSE considered recommending a program of special education teacher support services (SETSS) for the student but rejected it because the student required a more intensive adult-to-student ratio (id. at pp. 6-7).  The IHO further noted that the CSE considered recommending a 12:1+1 special class in a specialized school for the student but rejected this option, finding that the student could benefit from more interaction with his nondisabled peers (id. at p. 7).  The IHO found that the parent, in the due process complaint notice, objected to the district removing the 12:1+2 special class recommended by the CPSE, but the parent did not identify any particular issue with the recommended program (id.).  The IHO noted that, at the impartial hearing, the parent was unable to state what her disagreement was with the recommended program or even what the CSE recommended as the student's program (id.). The IHO then found that the parent's primary concern was that she was unable to obtain information about the type of students who were at the proposed public school and what those student's disabilities were (id.).  Overall, the IHO found that the district offered a cogent and responsive explanation for its decisions in creating the student's IEP and further found that the March 2024 IEP was tailored to meet the unique needs of the student (id. at p. 8).

The IHO disagreed with the parent's attorney's argument that the district needed to explain why the program recommended by the March 2024 CSE was "significantly different" from the program recommended for the student by the CPSE (IHO Decision at p. 8; see Nov. 12, 2024 Tr. pp. 16, 76).  The IHO found that the CPSE and CSE were wholly distinct committees, with different goals and concerns (IHO Decision at p. 8).

Lastly, the IHO indicated that, in her due process complaint notice, the parent took issue with the fact that the March 2024 CSE did not recommend services on a 12-month basis, however the IHO noted that that the parent's requested relief did not specify a request for 12-month services (IHO Decision at p. 8).  The IHO dismissed the issue as moot as the CPSE IEP included a recommendation for services through August 2024 and the student had received the services (id. at pp. 8-9).

IV. Appeal for State-Level Review

The parent appeals the portion of the IHO decision that found the district offered the student a FAPE for the 2024-25 school year.  According to the parent, the district did not present sufficient evidence to support changing the student's program from placement at AOSNY and that there "were procedural and substantive violations in the IEP process."  The parent further alleges that the May 2024 IEP noted that the student had auditory processing delays that needed to be addressed for the student to meet his goals, but the district did not provide evidence as to how the student's auditory processing delays would have been addressed at the assigned nonpublic school.

In its answer and cross-appeal, the district argues that the IHO properly found that the district provided the student a FAPE for the 2024-25 school year, specifically arguing that that student's March 2024 IEP accurately described the student's present levels of academic achievement and functional performance, established annual goals designed to meet the student's learning needs, enabled the student to progress in the general education curriculum through recommended services, and provided for the use of appropriate special education services.  The district cross-appeals, arguing that the parent forfeited pendency by unilaterally placing the student and thereby usurping the district's ability to implement pendency.  The district argues that the IHO's pendency order was improper to the extent that it would permit funding for the student's nonpublic school placement and that the pendency award should be vacated in its entirety.

In an answer to the district's cross-appeal, the parent argues that she is entitled to pendency at AOSNY because AOSNY is the same placement that the district previously recommended for the student.  The parent argues that pendency lies in the May 2024 preschool IEP and that the IEP was implemented at AOSNY at public expense.  The parent argues that the student attends AOSNY as an approved preschool program and seeks to stay put at the current placement.

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]).[5]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Discussion

A. The Student's March 2024 IEP

Turning to the substance of the parent's appeal, upon careful review, the hearing record reflects that the IHO, in a well-reasoned decision, correctly reached the conclusion that, the district offered the student a FAPE for the 2024-25 school year, as the March 2024 CSE's recommendations were appropriate (see IHO Decision at pp. 4-9).  The IHO accurately recounted the facts of the case, addressed the majority of the specific issues identified in the parent's due process complaint notice, and set forth and applied the proper legal standards to determine whether the district offered the student a FAPE (see IHO Decision at pp. 4-9).   The decision shows that the IHO carefully considered the testimonial and documentary evidence presented by both parties, and further, that he weighed the evidence and properly supported his conclusions (id. at pp. 5-9).  Furthermore, an independent review of the entire hearing record reveals that the impartial hearing was conducted in a manner consistent with the requirements of due process and that there is no reason appearing in the hearing record to modify the determinations of the IHO (see 20 U.S.C. § 1415[g][2]; 34 CFR 300.514[b][2]).  Thus, while my reasoning may  differ from the IHO's in some respects, the conclusions of the IHO are hereby adopted.

Briefly, with respect to the March 2024 IEP, the IHO found that the district offered the student a FAPE based on the March 2024 IEP's inclusion of detailed information about the student's cognitive, academic, social-emotional, and physical present levels of performance, consistent with evaluative information in the February 2024 psychoeducational evaluation, February 2024 social history, and March 2024 classroom observation reports (Dist. Exs. 1 at pp. 1-5; 3; 4; 5; IHO Decision p. 5).  Further, the March 2024 IEP also included information from November 2023 progress reports prepared by Strivright about the student's present levels of performance in speech-language therapy and OT (see Dist. Ex. 1 at pp. 2, 4; 8 at pp. 5-10).  Additionally, the IEP included approximately 18 annual goals aligned to the student's needs in ELA, math, speech-language therapy, OT, and counseling (see Dist. Ex. 1 at pp. 5-13).  Review of the hearing record shows that the parent did not raise any objections to the annual goals included in the March 2024 IEP.

The parent's argument on appeal centers around an allegation that the school psychologist's testimony was insufficient to support the March 2024 CSE's decision to switch the student's educational program from placement at AOSNY to a 12:1+1 special class in a public school.  According to the parent, the school psychologist had insufficient knowledge of the student because she only observed the student for one hour and, during the hearing, she was unable to provide information or answer questions specific to the student's auditory processing delays.

The parent’s attorney questioned the school psychologist regarding her knowledge of the student's reading and math skills and whether he had any social or emotional struggles or auditory processing delays (Nov. 12, 2024 Tr. pp. 23-24).  The school psychologist responded that she could not speak to the student's reading or math skills without looking at documents and that she did not remember if the student had social or emotional difficulties (Nov. 12, 2024 Tr. p. 24). The school psychologist recalled that the student had auditory processing delays and testified that she remembered the speech-language pathologist talking about the student having speech and language delays (id.).  However, she could not give any examples of how the student’s auditory processing delays were manifested (id.).  When questioned by the district attorney, the school psychologist could not provide any details regarding the student's expressive and receptive language delays or fine motor delays, other than those which were in her affidavit (Nov. 12, 2024 Tr. pp. 27-28).  However, the school psychologist was able to provide examples of the student's struggles to pick up social cues that went beyond her affidavit (compare Nov. 12, 2024 Tr. p. 28, with Dist. Ex. 9).

Based on the above, the parent has not presented a sufficient basis for departing from the IHO's determination that the school psychologist credibly testified.  According to the IHO, the school psychologist credibly testified about the CSE's process in developing the March 2024 IEP including its review of the February 2024 psychoeducational evaluation, the November 2023 speech-language therapy, and OT progress reports, a March 2024 classroom observation report, March 2024 Teacher and Speech Therapist interviews, a February 2024 Social History Update, and a November 2023 Educational Progress Report. (IHO Decision at p. 7; Dist. Exs. 1 at pp. 1-5; 9 at ¶¶ 9, 13).  The school psychologist testified by affidavit that at the March 2024 CSE meeting, she asked the teacher present, who was there from AOSNY and on behalf of the parent, to give a presentation regarding the student's challenges, strengths, and the current work being done with the student (Dist. Ex. 9 at ¶¶ 7, 12; see Dist. Ex. 7 at p. 1).  She also provided the parent with an opportunity to respond to the teacher (id. at ¶ 12).  The school psychologist reported that the parent was given every opportunity to participate in the CSE meeting and ask questions about the CSE recommendations (Dist. Exs. 9 at ¶ 12; see Dist. Ex. 1 at pp. 3-5).  The school psychologist indicated the information received from the parent and the school representatives during the March 2024 CSE meeting provided the CSE with sufficient detailed contemporaneous information about the student's disability, issues, needs, challenges, strengths, and abilities to allow the CSE to formulate an IEP that would provide the student with a FAPE (Dist. Ex. 9 at ¶ 16; see generally Dist. Ex, 1).  The school psychologist further indicated the student presented with delays in his expressive and receptive language skills, auditory listening skills, social/emotional skills, speech intelligibility, and cognitive skills (Dist. Ex..9 at ¶ 18; see Dist. Ex. 1 at pp. 2-3).  According to the school psychologist the student's needs were addressed in the IEP with the mandate of speech- language therapy, OT, counseling services, and full-time placement in a 12:1+1 special education class in a community school (Dist. Ex. 9 at ¶ 18; see Dist. Ex. 1 at pp. 13-14).  The school psychologist testified that the student struggled to pick up on social cues, such as the appropriate time to ask questions; had low confidence and would often insist that he could not do something or that he needed help; often spoke in an unsure or questioning tone, even when answering questions for which he definitely knew the answer, such as his name; and "constantly" waited for reassurance or teacher assistance and was resistant to try alone, as he wanted to be perfect (Dist. Ex. 9 ¶¶ 19, 20).  The school psychologist indicated that these social/emotional needs of the student were addressed in the IEP through the recommended counseling services once a week individually and once a week in a group (Dist. Exs. 1 at pp. 13-14; 9 at ¶ 20).  Next, the school psychologist reported the student was easily frustrated and would cry or go sit in a corner when upset or when things did not go his way (Dist. Ex. 9 at ¶ 21; see Dist. Ex. 1 at p. 4).  The school psychologist reported the student always wanted to be first on line or to get a prize and would cry and demand attention and, if he was especially upset with a peer, he might become verbally and physically aggressive (Dist. Ex. 9 at ¶ 21).  According to the school psychologist in addition to counseling services these needs were addressed in the IEP through the recommendation that the student attend a full time 12:1+1 special class (id.).  The school psychologist also reported that the student's self-regulation skills were significantly delayed and she noted that the student required modeling and prompting to help him verbally express his wants and needs (id. at ¶ 22).  She indicated that the student often required wait time as he would lie on the floor or shut down and refused to engage in attempts to co-regulate (id.).  According to the school psychologist, the student's weaknesses in self-regulation were addressed in the IEP by the recommendation that he receive speech-language therapy twice a week individually and once a week in a group (id.).

The director of AOSNY reported the student exhibited auditory processing challenges in auditory attention, association, temporal processing skills, dichotic listening skills, auditory closure, auditory-visual integration, auditory comprehension, auditory discrimination and auditory memory (Parent Ex. R at ¶15).  She indicated he was easily distracted, especially in the presence of background noise (id.).  According to the director, the student needed reminders to stay focused, repetition, and wait time to follow directions and to respond to questions (id.).  In addition, the student required guidance to use clarification strategies when missing auditory information (id.).  The student's AOSNY speech-language therapy provider reported the student presented with significant delays in his expressive and receptive language skills and auditory listening skills, as well as his social/emotional skills, and speech intelligibility (Parent Ex. S at ¶6).  The speech-language therapist reported the student had difficulty sitting still and continued to shift in his seat and easily became distracted by outside noise (id.).  In addition, she observed that the student was challenged when expressing himself and formulating syntactically appropriate sentences (id.).  According to the speech-language pathologist, the student tended to confuse or omit pronouns, possessives, tenses, auxiliary verbs and articles, even with modeling (id.).  As the complexity of his thoughts increased, his intelligibility decreased and he omitted sounds, syllables, and words in his phrases and sentences (id.).  The speech-language pathologist further reported that the student had difficulty following one-step directions with up to three critical elements unless given repetitions, wait time, and some rephrasing (id.).  He was also hesitant in completing task directives, especially those that he perceived as somewhat difficult or challenging (id.).[6]  As reflected in her affidavit, the speech-language pathologist indicated the student consistently looked to the clinician for reassurance and required significant lag time in order to respond to task directives or questions asked of him (id.).  He struggled with responding correctly to wh-questions as there was a significant wait time before he responded and he often forgot what was asked (id.).  The speech-language pathologist stated that the student required direct teaching in order to acquire new linguistic skills and vocabulary (id.).  He required further repetition and input in order to retain new skills and information (id.).[7]

The hearing record includes a November 2024 central auditory processing screening report conducted by two audiologists at Strivright, which summarized the results of testing conducted on November 5, 2024, when the student was five years old (Parent Ex. V at p. 1).  The report indicated that a limited test battery was available for children under the age of seven and due to age constraints, an age-appropriate auditory skills assessment (ASA) was assembled and administered to the student (id. at pp. 2, 3). According to the report, the student's total score fell below the cut score, indicating a potential weakness or deficit in his auditory skill (id. at pp. 3-4).  A complete auditory processing disorder evaluation was recommended for when the student was seven years old (id. at p. 4).  The screening report included recommendations that the student continue in an auditory/language intensive educational placement in a small class where his educational needs could be met in the least restrictive environment, and that the student continue speech-language therapy to address weaknesses in listening skills as well as receptive and expressive language (id.).  An additional recommendation was that consideration be given for the use of "remote mic" technology in the classroom to improve the signal-to-noise ratio in a generally noisy learning environment (id.).[8]  I note that the auditory processing screening occurred a little over seven months after the March 2024 CSE meeting and a few months into the 2024-25 school year (id.). Accordingly, it cannot be relied on to retrospectively assess the earlier CSEs' recommendations (see C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013] [finding that "a substantively appropriate IEP may not be rendered inadequate through testimony and exhibits that were not before the CSE about subsequent events . . . that seek to alter the information available to the CSE"], citing R.E., 694 F.3d at 186–87).  Additionally, although the student's special education teacher from Strivright and the parent attended the March 2024 CSE meeting, there is no indication in the hearing record that either of them brought up a need for the use of a device to address a noisy learning environment for the student during the March 2024 CSE meeting.

Without the availability of an auditory processing screening at the time of the March 2024 CSE, the March 2024 IEP included speech-language, OT, and counseling goals which addressed and/or incorporated the student's identified need areas involving receptive, expressive and pragmatic language in a multidisciplinary context (Dist. Ex. 1 at pp. 2, 7-8, 10-12).  Review of the IEP shows that it also addressed the foundational auditory processing skills mentioned during the AOSNY director's testimony in at least one annual goal and some of the management strategies included in the May 2024 IEP (Dist. Ex. 1 at pp. 5-6, 10).  The March 2024 IEP listed multiple management needs to address the student's auditory processing and language needs that included repetition of instructions and/or questions, related services, prompts, small groups, cues, modeling, listening comprehension activities,  activities that involve verbal reasoning, activities that focus on oral responding, dialogic reading, use of open-ended questions (rather than those questions requiring "yes/no" answers), use of visuals, manipulatives, delivery of lessons using a non-verbal approach, "hands-on" learning opportunities (when practicable), picture "clues," use of a multi-sensory approach to decoding/reading, classroom "Word" Wall/"Sounds" Wall, redirection, and positive reinforcement (id. at pp. 5-6).  It also included an annual goal to work on developing some auditory skills, which was consistent with, although less robust than, the annual goal identified in the May 2024 CPSE IEP to work on auditory skills (compare Dist. Ex. 1 at p. 10, with Dist. Ex. 6 at p. 12).

Finally, to the extent that the parent asserts that the district did not provide evidence to show how the student's auditory processing would have been addressed at the assigned public school, as discussed above, the district presented sufficient evidence to show how the recommended program would have met the student's identified needs.   Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself (R.E., 694 F.3d at 186-88).  The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement" (R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]).

Based on the foregoing, the hearing record, as a whole, supports the IHO's finding that the district provided the student a FAPE for the 2024-25 school year.

B. Pendency

The parties agree that pendency for this matter lies in the student's May 2024 IEP.  The district argues that the parent has "usurped" the district's ability to implement pendency during this proceeding by placing the student at Strivright.

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]).

The district argues that the IHO ordered the district to provide the services listed in the student's May 2024 IEP as pendency (Answer and Cross Appeal ¶ 12).  The district requests that the IHO's interim order on pendency be annulled to the extent that the pendency order can be read to require the district to fund the student's placement at Strivright (id.).  The district states that by placing the student at StrivRight, the parent usurped the district's ability to implement pendency, and the parent has forfeited pendency.

In the IHO's interim order on pendency, the IHO stated that the parties agreed that pendency lies in the student's May 2024 IEP and that the only dispute between the parties was concerning where pendency was to be implemented (Interim IHO Decision at p. 5).  The IHO noted that "[t]here was no mention of [Strivright] on either the IEP or any of the notices of recommendation sent to [the] [p]arent" (id.).  However, "Stivright-C009" does appear on both the May 2024 IEP on the summary page in the "additional information" section and is listed as the "site/school" in the final notice of recommendation sent to the parent (Parent Exs. B at p 1; F at p. 1).  Nevertheless, the IHO's decision on pendency did not direct that the student's placement during the pendency of this proceeding be at Strivright (see Interim IHO Decision).  Accordingly, the district has not presented a sufficient basis to disturb the IHO's interim decision on pendency.

VII. Conclusion

Having found that the evidence in the hearing record supports the IHO's decision that the district offered the student a FAPE for the 2024-25 school year and that there is no reason to disturb the IHO interim decision on pendency, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.