I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which dismissed the parent's due process complaint notice for lack of subject matter jurisdiction.  The appeal must be sustained and the matter remanded to the IHO for further proceedings.

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

Given the procedural posture of this matter—namely that it was dismissed with prejudice prior to an impartial hearing—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence.  Accordingly, the description of the facts is limited to the procedural history including the parent's filing of the due process complaint notice and the IHO's dismissal of the due process complaint notice with prejudice.

A. Due Process Complaint Notice

In a due process complaint notice dated February 7, 2025, the parent alleged that respondent (the district) denied the student a free appropriate public education (FAPE) for the 2024-25 school year by failing to implement the student's special education program (Due Process Compl. Not. at pp. 1-2).  According to the parent, a CSE last developed an IESP for the student in March 2023, which recommended three periods per week of special education teacher support services (SETSS) and "related services" (id. at p. 1).[1]  The parent alleged that the district failed to implement the student's recommended services, causing the parent to seek out a private provider (id. at pp. 1-2).

As relief for the alleged denial of a FAPE for the 2024-25 school year, the parent sought direct funding of the student's unilaterally-obtained services at "the contracted rate," as well as compensatory education services for any periods during the 2024-25 school year in which the student did not receive services (Due Process Compl. Not. at p. 2).

In a due process response dated February 10, 2025, the district generally denied the allegations contained in the due process complaint notice, asserted certain affirmative defenses, and attached a supplemental notice (Due Process Response).  The supplemental notice indicated that a CSE convened on March 9, 2023, found the student eligible for special education as a student with a speech of language impairment, and developed an IESP that recommended that the student receive three periods per week of group SETSS, speech-language therapy, occupational therapy, and physical therapy (id. at pp. 3-5).

B. Impartial Hearing Officer Decision

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter.  In a motion to dismiss dated April 28, 2025, 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 (see Dist. Mot. to Dismiss).  The parent submitted papers opposing the district's motion, arguing that the IHO possessed subject matter jurisdiction and also that the student was entitled to the services recommended in the March 2023 IESP during the pendency of the proceeding to maintain her current educational program (Parent Opp'n to Mot. to Dismiss).

By decision dated May 19, 2025, the IHO granted the district's motion to dismiss for lack of subject matter jurisdiction (see IHO Decision at p. 2).  The IHO determined that she lacked subject matter jurisdiction to hear the parent's claims under Education Law § 3602-c (id. at pp. 1-2).  The IHO noted a previously adopted emergency amendment to the Commissioner's regulations and subsequent New York State Court's issuance of a restraining order staying implementation or enforcement of the emergency regulation (id. at pp. 1-2 n.3).  The IHO explained that her determination that she lacked subject matter jurisdiction was not based on the emergency amendment in light of the restraining order (id.).

The IHO reasoned that students who are parentally placed in nonpublic schools and who are eligible for equitable services under Education Law § 3602-c are not entitled to a FAPE and do not have the same due process protections as public school students because their parents have opted out of the public school system (IHO Decision at pp. 2-4).  The IHO interpreted Education Law § 3602-c to allow only two types of disputes that could be brought under IDEA due process complaint procedures: those related to "review" of CSE recommendations and those related to child find activities (id. at pp. 6-7).  According to the IHO, the plain meaning of the word "review" in Education Law § 3602-c cannot mean "full due process" and precludes an IHO from hearing claims for implementation of an IESP (id. at p. 8).

The IHO reasoned that IHOs appointed pursuant to the IDEA and Education Law § 4404 were "trained primarily to decide IDEA-based issues" and "lack[ed] the expertise to decide" disagreements about rates (IHO Decision at pp. 8-10).  The IHO further noted that decisions from SROs and guidance from the New York State Education Department were not "binding precedent" (id. at pp. 12-13).

The IHO also reviewed the legislative history of Education Law § 3602-c and determined that Education Law § 3602-c never granted an IHO jurisdiction to preside over a failure to implement claim (IHO Decision at pp. 10-11).  The IHO distinguished Gabel v. Board of Education of Hyde Park Central School District, 368 F. Supp. 2d 313 (S.D.N.Y. 2005), explaining that Gabel did not involve the district's failure to implement services but, rather, the district's failure to recommend related services after having conducted evaluations (id. at pp. 12-13 & n.46).[2]  The IHO determined the New York State legislature did not intend to grant parents the right to a due process hearing before an IDEA IHO for a rate dispute or a "failure to implement" claim under § 3602-c (id. at pp. 8-9).

According to the IHO, the purpose of Education Law § 3602-c is "to allow students access to various state provided services" (IHO Decision at p. 13).  The IHO rejected State-level review decisions holding that dually-enrolled students (i.e., private school students who receive public school services) are considered part-time public school students who are entitled to the same legal protections as public school students (id. at pp. 13-14).

Additionally, the IHO suggested that, had the parent brought her allegation of a denial of FAPE in a New York State court, she would have been sanctioned for frivolous arguments pursuant to 22 NYCRR § 130-1.1 (IHO Decision at p. 15).  According to the IHO, the parent "compel[led] the [district], the hearing officer and any appellate reviewed to waste administrative and official resources" (id.).

With regard to the student's stay put placement, the IHO denied the parent's request for a pendency order due to her conclusion that the student had no right to pendency (IHO Decision at pp. 15-17).  The IHO found that there is no right to pendency under federal law, nor was there a right to pendency granted by the plain language of Education Law § 3602-c (id. at p. 16).

Finally, the IHO found "no unfairness in dismissing th[e] case," as parents have "always had other forums to pursue disputes" of this kind (IHO Decision at p. 18).  The IHO noted, specifically, that the parent can bring suit in state court; file a complaint pursuant to Education Law § 310; and/or resolve the dispute "directly with the CSE" (id.).

Accordingly, the IHO granted the district's motion and dismissed the parent's due process complaint notice in its entirety "with prejudice with respect to this forum, but without prejudice to refile in an appropriate forum" (IHO Decision at p. 18).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in dismissing the due process complaint notice for lack of subject matter jurisdiction.  The parent argues that Education Law §§ 3602-c and 4404 confer the right to file due process complaints regarding the provision of special education services.  Further, the parent points to numerous State-level review decisions that all stand for the proposition that IHOs have subject matter jurisdiction over implementation claims.

The parent also contends that the IHO erred by failing to issue a pendency order.  The parent notes that the student has an IESP that the district has failed to implement, so a pendency order requiring the provision of the services recommended in that program should have been issued as a matter of course.

For relief, the parent seeks direct funding for unilaterally-obtained services for the 2024-25 school year.  The parent also requests that the student's pendency program be implemented.

In an answer, the district argues that the IHO's decision should be affirmed.  The district also argues that the legislative history of Education Law § 3602-c belies the SRO's consistent position that IHO's possess subject matter jurisdiction over failure to implement claims.  Finally, the district contends that the IHO's decision regarding pendency should be affirmed because parentally placed students lack entitlement to a FAPE.

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]).[3]  "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.).[4]  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—Subject Matter Jurisdiction

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 IHO determined, in accord with the district's position, 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 and the IHO, IHOs and SROs lack subject matter jurisdiction with respect to 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 New York Education Law affords 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]).[5]

Concerning students who attend nonpublic schools, Education Law § 3602-c 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).[6]  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.[7]

After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide 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.  In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[8]

In its answer, the district contends that the State guidance from 2007 contradicts the "plain language" of the Education Law, under which parents have never had a right to bring a due process complaint relating to a district's failure to implement IESP services or to obtain funding for enhanced rate services.  Consistent only in part 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]).[9]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and 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 whether 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 that provides that 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 utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot, because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at p. 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at p. 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"; but 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.).[10]   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 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 IHO's decision dismissing the parent's claims due to a lack of subject matter jurisdiction must be reversed.

As the IHO's jurisdictional reasoning is without merit, the IHO's related contention that "the issue of pendency in claim[s] brought under § 3602-c is beyond the scope of an IHO's jurisdiction" is also without merit (IHO Decision at p. 15; see, e.g., Application of a Student with a Disability, Appeal No. 25-035 [rejecting "the district's argument that the student [wa]s not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c"]; Application of a Student with a Disability, Appeal No. 24-579 [rejecting the district's argument "that the student was not entitled to pendency services because the IHO . . . lacked subject matter jurisdiction to order the district to maintain the student's pendency services"]).  However, as the hearing record is not developed, I decline to reach the issue on appeal.

When an IHO has not addressed the issues raised in a due process proceeding, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims or arguments that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).  Here, I find the case must be remanded to allow an evidentiary hearing to determine the student's pendency and the issuance of a written decision on the merits of the parent's claims asserted in her due process complaint notice.

VII. Conclusion

Having determined that the IHO erred in failing to issue a pendency order and in dismissing this matter for lack of subject matter jurisdiction, the matter must be remanded to the IHO for an evidentiary proceeding to determine if the district failed to provide the student appropriate dual enrollment services under Education Law § 3602-c for the relevant timeframe.  If the IHO finds that the district failed to offer the student appropriate dual enrollment services, then the IHO must determine if the student's unilaterally obtained services were appropriate and, if so, whether equitable considerations favor the parent's requested relief.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated May 19, 2025, is modified by reversing that portion which dismissed the parent's claim pertaining to IESP implementation for lack of subject matter jurisdiction;

IT IS FURTHER ORDERED that this matter is remanded to the IHO for further proceedings in accordance with this proceeding, including the issuance of a pendency order; and

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