I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for her son's unilaterally obtained services delivered by Alpha Student Support (Alpha) and Headway Services (Headway) for the 2023-24 school year.[1]  Respondent (the district) cross-appeals from that portion of the IHO's decision which denied its motion to dismiss the parent's claims 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

For the 2023-24 school year, the student had been parentally placed in a nonpublic school, and he attended a general education kindergarten class (Parent Exs. C at p. 1; J ¶ 20).[2]  A CSE convened on February 5, 2023 and developed an IESP for the student with a projected implementation date of September 7, 2023 (Parent Ex. C at pp. 1, 22, 25).  The February 2023 CSE found the student eligible for special education and related services as a student with a speech or language impairment (id. at p. 1).[3]  The February 2023 CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS) in a separate location, delivered in Yiddish; three 30-minute sessions per week of individual speech-language therapy in a separate location, delivered in Yiddish; and two 30-minute sessions per week of individual occupational therapy (OT) in a separate location, delivered in English (id. at p. 22).[4]

In a contract dated September 5, 2023, the parent confirmed her understanding that the student was entitled to receive funding or reimbursement from the district for five periods per week of direct group SETSS in Yiddish, three 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual OT in English (Parent Ex. D at p. 1).  The contract stated that the parent understood that Alpha intended to provide SETSS at a rate of $195 per hour and "[s]peech [l]anguage" at a rate of $250 per hour for the 2023-24 school year (id. at p. 2).  The contract also stated that the parent "confirm[ed]" that [she was] liable to pay Alpha . . . the full amount for all recommended services" in the event the parent was unable to secure funding from the district "or elsewhere" (id.).

On October 27, 2023, the parent entered into a contract with Headway for two 30-minute sessions per week of OT (Parent Ex. E at p. 1).[5]

The hearing record includes a March 25, 2024 progress report prepared by the student's speech-language pathologist, a June 5, 2025 progress report prepared by the student's OT provider, and a June 27, 2024 progress report prepared by the student's special education teacher from Alpha (Parent Exs. F at pp. 1-10; G at pp. 1-4; H at pp. 1-4).

The hearing record also includes a March 13, 2024 IESP and, appended to the district's September 17, 2024 due process response, a March 14, 2024 prior written notice (Dist. Ex. 4; Due Process Response at pp. 3-7).

A. Amended Due Process Complaint Notice

In an amended due process complaint notice dated October 15, 2024, the parent alleged the student was parentally placed at a nonpublic school and identified by the district as a student with a disability (Parent Ex. A at p. 1).[6]  The parent asserted that, due to the district's failure to implement the most recent IESP, the parent was now requesting "an order of pendency to implement" a February 5, 2023 IESP (id. at p. 2).  According to the parent, the February 2023 IESP recommended five periods per week of direct group SETSS, three 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual OT (id.).  The parent indicated "concern[] regarding" the implementation of the February 2023 IESP for the 2023-24 school year as the presenting problem (id.).  The parent asserted that she was unable to locate SETSS and related services providers on her own and the district had failed to implement its own recommendations (id.).  Additionally, the parent contended that "[w]ithout supports, the parental mainstream placement [wa]s untenable" and that the failure to implement the February 2023 IESP or provide a placement was a denial of a FAPE for the 2023-24 school year (id.).  Next the parent included a "[c]ompensatory [r]equest" stating that, due to the difficulties in locating providers, the parent reserved her right to ask for compensatory SETSS and related services for any periods not provided during the 2023-24 school year (id. at p. 3).  As relief, the parent requested funding for the providers located by the parent for the 2023-24 school year at the "provider's contracted rate" and funding for a bank of compensatory periods of SETSS and related services for the entire 2023-24 school year, "or the parts of which were not serviced," to be funded at the prospective "provider's contracted rate" (id.).

In a response dated September 17, 2024, the district asserted several defenses including that the parent failed to timely send a written request for equitable services by June 1 preceding the school year at issue (Due Process Response at p. 1).

B. Impartial Hearing Officer Decision

The IHO from the Office of Administrative Trials and Hearings (OATH), who presided over the impartial hearing, was appointed on October 29, 2024, after the parent filed an amended due process complaint notice (IHO Decision at p. 3).[7]  The impartial hearing convened on November 4, 2024 (Tr. pp. 1-46).  In a decision dated November 21, 2024, the IHO initially determined that the parent's claims were ripe for adjudication and further found that she had subject matter jurisdiction to review the parent's claims in the amended due process complaint notice (IHO Decision at pp. 6-7 & n.3).  The IHO then determined that the parent failed to request dual enrollment services from the district on or before June 1, 2023, the district timely raised the affirmative defense, and that the district did not waive the requirement for a written request for services by June 1 by developing an IESP for the 2023-24 school year (id. at pp. 7-9).  Based on those findings, the IHO dismissed the parent's amended due process complaint notice with prejudice (id. at p. 9).

IV. Appeal for State-Level Review

The parent appeals, alleging that the district waived the requirement for a written request for services by June 1 and that the IHO's determination "is misguided."  The parent asserts that the creation of an IESP with a precise implementation date is the type of conduct that constitutes a waiver of the June 1 requirement.  The parent also argues that the unilaterally obtained services were specifically tailored to address the student's needs and that she satisfied her burden of proof.  As relief, the parent requested funding for SETSS at the rate of $195 per hour, speech-language therapy at a rate of $250 per hour, and OT at a rate of $350 per hour.

In an answer with cross-appeal, the district asserts that neither the IHO nor the SRO has subject matter jurisdiction to review the parent's claims in her amended due process complaint notice.  In the alternative, the district argues that the parent did not timely request equitable services and that the IHO's determination of this issue should be affirmed.  In the event that the district does not prevail in its cross-appeal or that the SRO determines that the June 1 requirement was waived, the district requests that the matter be remanded to the IHO to make a determination as to the appropriateness of the unilaterally obtained services.

In an answer to the district's cross-appeal, the parent alleges that the district failed to address her claim of waiver of the requirement for a written request for services by June 1 and further asserts that the district's provision of a March 14, 2024 prior written notice further demonstrates such a waiver.  The parent also contends that the district's subject matter jurisdiction argument is meritless.  In addition, the parent has annexed two documents to her answer to the cross-appeal.

In a reply to the parent's answer to the cross-appeal, the district asserts that the parent's claims of waiver of the June 1 requirement are meritless.  Specifically, the district argues that the parent's additional evidence should not be considered.[8]

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]).[9]  "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.).[10]  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

A. Subject Matter Jurisdiction

As a threshold matter, it is necessary to address the issue of subject matter jurisdiction which was raised in the district's cross-appeal.  The district argues that federal law confers no right to file a due process complaint regarding services recommended in an IESP and that New York law confers no right to file a due process complaint regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to IESP implementation claims.

In several 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. 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]).[11]

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 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 legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate 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).[12]  In addition, the New York Court of Appeals has explained that students authorized to receive 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.

However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years.  Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy.  Policy makers have recently attempted to address the issue.

In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available at https://www.regents.nysed.gov/sites/ regents/files/524p12d2revised.pdf).  Ultimately, however, the proposed regulation was not adopted.  Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over 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" (8 NYCRR 200.5[i][1]).  The amendment to the regulation does not apply to the present circumstance for two reasons.  First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[13]  Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]).  Specifically, the Order provides that:

pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity

(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[14]

According to the district, however, the aforesaid rule making activities support its position that parents never had a right under State law to bring a due process complaint regarding implementation of an IESP or to seek relief in the form of 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]).[15]

Given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter.  Further, the position set forth in the guidance document issued in the wake of the emergency regulation, which is now enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes.  Acknowledging that this matter has received new attention from State policymakers and appears to be an evolving situation, I nevertheless must deny the district's request for dismissal of the parent's appeal and underlying claim relating to implementation of the IESP on jurisdictional grounds.

B. June 1 Deadline

Turning to the parent's claim that the IHO erred in finding that the parent did not timely request equitable services on or before June 1, 2023, the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).

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

Here, the district's response to the parent's due process complaint notice, dated September 17, 2024, did raise the June 1 affirmative defense (see Due Process Response at p. 1).  In addition, the district reiterated its intent to pursue the defense in an email to the IHO and the parent's attorney dated October 21, 2024, in its written opening statement dated October 25, 2024, and in its closing statement made on the record during the November 4, 2024 impartial hearing (Tr. pp. 36, 40-41; Dist. Ex. 2 at p. 1; IHO Ex. III).  Accordingly, the parent's claim that the district waived the June 1 affirmative defense is wholly without merit.

To be eligible for dual enrollment services for the 2023-24 school year, the parent was required to submit a written request to the district for such services on or before June 1, 2023.  It is undisputed that the parent did not submit a request for dual enrollment services.  Instead, in her request for review, the parent asserts that the district's creation of the March 13, 2024 IESP was "a clear indication of waiver by conduct" (Req. for Rev. at p. 3).  The parent also argues that it would not be rational to require the parent to notify the district of her interest in services that were not mandated until nine months later, and further that "[h]ow could a [p]arent possibly notify the [d]istrict in June of 2023 in connection with services that were not mandated until March of 2024" (id. at pp. 3-4).  In her answer to the district's cross-appeal, the parent also argues that the district waived the June 1 defense by providing a March 14, 2024 prior written notice and by making specific entry on July 13, 2023 in the student's SESIS log.

A district may, through its actions, waive the statutory requirement for the June 1 notice (see Application of the Bd. of Educ., Appeal No. 18-088).  The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[16]  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).

It is undisputed that CSEs convened and developed IESPs with recommendations for the student for the 2023-24 school year (see Parent Ex. C; Dist. Ex. 4).  The February 5, 2023 IESP reflected a projected implementation of September 7, 2023 (Parent Ex. C at p. 1).  The March 13, 2024 IESP reflected a projected implementation date of March 27, 2024 (Dist. Ex. 4 at p. 1).

While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver.  This is due, in part, because the district is required to navigate requirements that are in tension with one another.  On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("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" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services.  In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]).  Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]).  Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.

Based on the foregoing, the convening of the February 2023 and March 2024 CSEs, without more, does not constitute a waiver of the June 1 defense.  With respect to the SESIS log, entries reflect that, on May 21, 2023, the parent requested a copy of the student's IESP and on July 13, 2023, the district contacted the parent to confirm the name of the nonpublic school the student would attend for the 2023-24 school year (SRO Ex. 1 at p. 2).  There is no evidence of other communications from the parent that indicated she timely requested equitable services for the 2023-24 school year, and the district's communication to the parent to confirm the student's school does not reflect its intent to provide services to the student notwithstanding the lack of a written request from the parent by June 1.[17]  With respect to the March 2024 prior written notice, which summarized the recommendations made at a March 13, 2024 CSE meeting, the district included language that has, in similar matters, been found to constitute a waiver of the June 1 deadline when set forth in a prior written notice summarizing an IESP, the implementation of which was challenged in the underlying proceeding (see Due Process Response at pp. 3-7; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-509; Application of a Student with a Disability, Appeal No. 24-473; Application of a Student with a Disability, Appeal No. 24-436).  However, here, the district's implementation of the services recommended in the March 2024 IESP were not at issue at the impartial hearing.  Neither the parent's July 15, 2024 initial due process complaint notice, nor the October 15, 2024 amended due process complaint notice mentioned the March 2024 IESP or alleged that the district failed to implement that IESP (Parent Exs. A at pp. 1-4; B at pp. 1-7).  The October 15, 2024 amended due process complaint notice continued to assert that the district failed to implement the February 5, 2023 IESP for the 2023-24 school year (Parent Ex. A at pp. 2, 3).  Under the circumstances, the March 2024 prior written notice, provided approximately seven months into the school year, would not reflect the district's waiver of the June 1 notice requirement retroactively to the beginning of the 2023-24 school year.

VII. Conclusion

In summary, the parent was required to file a request for equitable services for the 2023-24 school year on or before June 1, 2023.  As noted above, there is no request by the parent for dual enrollment services for the 2023-24 school year in evidence and the evidence in the hearing record does not reflect that the district waived the requirement for the 2023-24 school year.  Therefore, I find the IHO correctly determined that the district was under no obligation to provide services to the student for the 2023-24 school year under the dual enrollment statute and the parent is not entitled to relief on her claims for that school year.

Based on the findings above, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.