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 her due process complaint notice that included her request to be reimbursed by respondent (the district) for her daughter's private services delivered by Yeled v'Yalda (Yeled) for the 2023-24 school year with prejudice.  The 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

A CSE convened on May 22, 2023 as part of the student's "Turning 5 process," and, finding the student eligible to receive special education as a student with a learning disability, developed an IESP with a projected implementation date of September 4, 2023 (Parent Ex. B).  The May 2023 CSE recommended that the student receive four periods of group special education teacher support services (SETSS) per week and two 30-minute group sessions per week of occupational therapy (OT) (id. at p. 9).[1]

On July 7, 2023, the parent entered into a contract with Yeled to provide "Special Education and/or Related Services" to the student for a term spanning September 1, 2023 to June 30, 2024 (Parent Ex. E).  The contract indicated that Yeled charged $198 per hour for special education services, and $258 per hour for related services (id.).  As part of the contract's terms, the parent agreed to seek payment from the district for the services provided by Yeled, however, the parent also acknowledged that it was her responsibility to pay for the services provided (id.).  It was also indicated that, in the event the parent did render payment to Yeled and the district later provided a "voucher" that indicated that Yeled would be receiving payment from the district, the parent would be reimbursed for those payments (id.).

By letter dated August 21, 2023 with the subject line "10-day Notice of Private Placement," the parent, through her attorney, notified the district that she consented to the district implementing all services recommended to the student by the CSE in the May 2023 IESP, but that she had no way of implementing them herself (Parent Ex. D).  She explained that she was unable to locate providers for the student's SETSS and related services at the district's "standard rate" and thereby informed the district that she had "no choice" but to implement the May 2023 IESP's recommendations and seek reimbursement or direct payment from the district (id. at p. 1).  The parent asked the district to let her know if there were any alternative options, and she also notified the district of the student's nonpublic school placement location (id.).

A CSE again convened on May 7, 2024, and, finding the student eligible for special education as a student with a learning disability, developed an IESP with an implementation date of May 21, 2024 (Parent Ex. C).  The May 2024 CSE recommended that the student receive four periods of group SETSS per week, two 30-minute periods of speech-language therapy per week, and two 30-minute session of OT per week (id. at pp. 8-9).

A. Due Process Complaint Notice & Due Process Response

In a due process complaint notice dated July 12, 2024, the parent, through her attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A).  The parent indicated that she was "concerned regarding [the] implementation" of the May 2023 IESP for the 2023-24 school year, as the parent had been unable to locate SETSS and related service providers and the district failed to implement the recommendations in the May 2023 IESP (id. at p. 2).  The parent contended that the failure of the district to implement the recommendations and/or provide a placement constituted a denial of FAPE (id.).  The parent asked the IHO to issue an order that the district fund the providers located by the parent for the 2023-24 school year at the providers' contracted rate (id. at p. 3).  The parent further reserved her right to seek compensatory education services, and then asked that an order be issued directing the district to fund a bank of compensatory education periods of SETSS and related services for the entire 2023-24 school year, or the "parts of which were not serviced," at the prospective providers' contracted rates (id. at p. 3).  The parent further requested a pendency order from the IHO (id. at pp. 2, 4-5).

In a due process response dated September 9, 2024, the district alleged that it intended to "pursue all applicable defenses during th[e due process] proceedings, including . . . a defense against any claims or requested relief alleged pursuant to Education Law §3602-c on the basis that the parent failed to timely send a written request for equitable services by June 1 of the preceding school year, as required by New York State Education Law §3602-c(2)" (Due Proc. Resp. at pp. 1-2).

B. Impartial Hearing and Impartial Hearing Officer Decision

The matter was assigned to an IHO from the Office of Administrative Trials and Hearings (OATH).  The hearing record includes an undated omnibus docket prehearing order issued for the purpose "set[ting] firm expectations of the Parties to resolve the matter fairly and efficiently," which indicated that the parties were required to articulate and communicate in writing, within 10-business days of the impartial hearing, any known or knowable affirmative defense that the parties may raise (IHO Ex. I).  The prehearing order further indicated that any affirmative defense not articulated and communicated in the prescribed manner "may be considered waived, and the party may be precluded from raising or proving them at the Due Process Merits Hearing" (id. at pp. 1-2).

The district filed a motion to dismiss dated September 5, 2024, alleging that the IHO lacked subject matter jurisdiction to hear the parent's claims, and that the parent's claims were not ripe (IHO Ex. II).  The parent, through her attorney, submitted a memorandum of law in opposition to the motion to dismiss dated September 12, 2024 (IHO Ex. III).  The district then submitted a "supplement to motion to dismiss for lack of subject matter jurisdiction" dated October 29, 2024 (IHO Ex. IV).

Prior to the impartial hearing, the district sent the IHO an email on October 29, 2024, requesting that she issue subpoenas for the parent's testimony (IHO Ex. VI at p. 3).  The district further noted that it intended to question the parent regarding the district's "affirmative June 1 defense" (id.).  The parent, by email dated November 7, 2024, through her attorney, objected to the subpoena being issued, arguing that the parent's testimony would not be relevant to the issues before the IHO (id. at pp. 1-2).  The district reiterated, in an email responding to the parent on November 7, 2024, that the requested subpoenas were intended for matters relating to the district's "affirmatively raised . . . June 1 defense" (id. at p. 1).

An impartial hearing convened before on November 14, 2024 (Tr. pp 1-57).  The district, in its closing argument, contended that it timely raised the affirmative defense that the parent failed to request equitable services for the student prior to June 1, 2023, and that the parent had not provided credible evidence that she complied with this requirement, despite the parent's testimony (Tr. pp. 44-45, 49).  The parent, through her attorney, contended in her closing argument that the district's defense was an affirmative defense, placing the obligation upon the district to present evidence that the parent had not complied with the June 1 requirements (Tr. p. 53).  The parent's attorney contended that the parent had testified that a letter was sent on May 29, 2023, and the district did not present evidence refuting that (id.).  The parent's attorney further contended that the district waived the affirmative defense because the CSEs developed the student's May 2023 and May 2024 IESPs, and she alleged that both IESPs documented where the student was placed (Tr. pp. 53-54).

In a decision dated November 26, 2024, the IHO dismissed the parent's due process complaint notice with prejudice (see generally IHO Decision).  The IHO found that the district had properly raised the affirmative defense that the parent failed to provide the district with written notice of their intent to request equitable services on or before June 1, 2023 for the 2023-24 school year, as was required under Education Law § 3602-c (id. at pp. 6-7).  The IHO found that the district raised the defense in emails regarding a subpoena for the parent's testimony, as well as in the district's closing argument (id. at p. 7, citing IHO Ex. VI; see Tr. pp. 44-45, 49).  The IHO found that the parent never disputed the timeliness of the district's affirmative defense (IHO Decision at p. 7).  The IHO further found that there was no credible evidence in the record that the parent provided timely notice to the district, despite the parent being placed on notice that the district would raise the defense (id.).  The IHO noted that the parent, during her cross-examination, testified that she completed a June 1 notice and "sent it back" on May 29, 2023 via email, but the IHO found this testimony as unreliable, because while the parent was allegedly able to recall the exact date of the June 1 notice, she was unable to recall general facts about when the student received services during the 2023-24 school year (id.).  The IHO further noted that the parent chose not to submit the email she testified about as evidence in the record, nor did she choose to testify about the notice in her direct affidavit testimony (id.).  The IHO did not find the parent's testimony credible and found that the parent never provided the district with timely June 1 notice (id.).  The IHO further found that the district did not waive the affirmative defense by creating the May 22, 2023 IESP, as the district did not provide the student with her recommended services, and found that the district did not knowingly waive the defense (id. at pp. 7-8).  The IHO also denied the district's motion to dismiss for alleged lack of subject matter jurisdiction and for the claims not being ripe (id. at pp. 5-6).

IV. Appeal for State-Level Review

The parent appeals, alleging, through her attorney, that the IHO erred in dismissing her claims.  Specifically, the parent alleges that the May 2023 IESP was not finalized until the afternoon of May 31, 2023, as shown in her proposed additional evidence, and, as such, it was not possible or fair to require the parent to send a June 1 notice with such little time.[2]  The parent further alleges that she was never provided with a copy of the student's May 2023 IESP.  The parent contends that the district was aware of the student's attendance at a nonpublic school and that the district's creation of the May 2024 IESP with an exact implementation date constituted a waiver to the affirmative defense.  She further contends that a failure to comply with the June 1 provision of the Education Law does not constitute grounds for a complete denial of all relief, and that IHOs can instead limit relief awarded.  The parent further contends that the district should have raised the affirmative June 1 defense in their due process response, similar to requirements of the civil practice law and rules (CPLR), but also alleges that the district never submitted a due process response at all.[3]  The parent further contends that dismissing this matter would contradict 8 NYCRR 200.5(i)(6), as the due process complaint notice was facially sufficient.  Finally, the parent contends that the services unilaterally obtained for the student were appropriate.

In an answer, the district contends that the evidence in the record shows that the parent failed to comply with the June 1 notice requirement, that the district sufficiently raised the affirmative defense, that there was no credible evidence or testimony that the parent provided a timely written request for services prior to June 1, 2023, and that the parent's proposed additional evidence should be rejected.  The district asserts that the IHO was correct in finding the parent's testimony regarding the June 1 notice to not be credible.  The district further contends that it did not waive the affirmative June 1 defense by creating the May 2023 IESP because there is no evidence that the services recommended were implemented during the 2023-24 school year.  The district similarly argues that the creation of the May 2024 IESP did not constitute a waiver of the defense either because a CSE meeting and development of an IESP, alone, do not clearly or unmistakably reflect a waiver of the defense.  The district further contends that the May 2024 IESP was developed for the 2024-25 school year, a school year not at issue in this proceeding.  The district also notes that the parent was given several months' notice of the district's affirmative defense, as the defense was raised in the due process response.  The district also requests, in the event this SRO finds that the parent's claims should not have been dismissed, that the matter be remanded for substantive findings on the appropriateness of the unilaterally obtained services and on the equitable considerations.  Finally, the district asserts that the parent's request for review should be rejected for allegedly failing to conform with regulatory form requirements.[4]

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]).[5]  "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.).[6]  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

Initially, neither party has appealed from the IHO's denial of the district's motion to dismiss.  Accordingly, this finding has become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Turning to the parent's arguments on appeal with respect to the district's June 1 affirmative defense, I note that 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]).

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 IHO correctly found that the district raised the June 1 affirmative defense in a timely and adequate fashion.  As the IHO noted, the district clearly raised the affirmative defense in its closing at the impartial due process hearing (Tr. pp. 44-45, 49), as well as through emails in October and November 2024 (IHO Ex. VI).  Additionally, despite the parent's assertions otherwise, the district raised the June 1 affirmative defense in September 2024, through its due process response (Due Proc. Resp. at pp. 1-2).  I further note that, the district's raising of the June 1 affirmative defense also complied with the omnibus docket prehearing order, in that it was articulated in writing within 10 business days of the scheduled hearing date of November 14, 2024 (see IHO Ex. I; see also IHO Ex. V).  In sum, there is no evidence or testimony in the record on appeal that would provide a basis for me to disturb the finding that the district timely raised this defense.

The parent contends that the CSE's development of the student's May 2024 IESP, with a projected implementation date of May 21, 2024, constitutes district waiver of the June 1 affirmative defense.[7]  A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088).  The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).  While delivery of services reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP would, without more, constitute a waiver.  For example, to the extent a district was navigating two requirements in tension with one another, i.e., to 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]) versus awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]), the occurrence of the meeting might not clearly or unmistakably reflect the district's waiver of the June 1 notice.

In this case, it is undisputed that the district provided no services to the student during the 2023-24 school year.  Although the district created an IESP for the student in both May 2023 and May 2024, it shows the effort of the district to comply with its annual review requirement, and not a clear and unmistakable waver of the June 1 requirement (see Parent Exs. B, C).  Accordingly, the evidence in hearing record does not support a finding that the district impliedly waived the June 1 defense through its actions (cf. Application of the Bd. of Educ., Appeal No. 18-088 [finding that the district impliedly waived the June 1 defense where the district created an IESP for the student and began providing services at the student's nonpublic school after the June 1 deadline]).  Additionally, with respect to the May 2024 IESP, I note that this IESP was developed toward the end of the 2023-2024 school year, thus, even if its creation did constitute a waiver, it would not be appropriate to deem that to be a waiver for the entire 2023-24 school year for events that preceded its creation.

I further note that the parent's contentions in the request for review regarding the finalization of the May 2023 IESP and lack of provision of that IESP appear to reflect a concession on the parent's part that she did not provide written notice to the district of their request for dual enrollment services by June 1, 2023, as the parent has alleged that, if the IESP was provided to the her with more time, such notice could have been given by the parent (Req. for Rev. at pp. 1, 4).[8]  This is in contrast to the parent's testimony during cross-examination that she "signed" a June 1 notice that was emailed to her, and that she emailed it back on May 29, 2023 to whatever person or entity had sent it to her, and that she would have to look to see if she still had that email (Tr. pp. 15-16).  On this point, the IHO did not find the parent's testimony credible (IHO Decision at p. 7).  Generally, an SRO gives due deference to the credibility findings of an IHO unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd, 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]).  Here, there is no such evidence in the hearing record that would justify a contrary conclusion to the IHO's finding that the parent's testimony on this issue was not credible, especially in light of the concession in the parent's request for review (see IHO Decision at p. 7).

In sum, I find that the district timely raised the June 1 affirmative defense, that the district did not waive this defense due to the development of the May 2023 and May 2024 IESPs, and that the parent has failed to provide a sufficient basis in the record on appeal to disturb the IHO's findings in this regard.

VII. Conclusion

As described above, the IHO correctly found that the parent's claims were foreclosed based upon the district's assertion of a June 1 affirmative defense.  The evidence in the hearing record, as well as the parent's own concession, supports the IHO's conclusion that the parent failed to establish that she provided the district with a request for dual enrollment services prior to the June 1 deadline.

I have considered the parties' remaining contentions and find the necessary inquiry at an end.

THE APPEAL IS DISMISSED.