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 his request to be reimbursed for his son's private services delivered by Mount Resources for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss the parent's claim based on a lack of subject matter jurisdiction.  The appeal must be sustained in part.  The cross-appeal must be dismissed.  The matter is 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

A CSE convened on August 16, 2023, and, finding the student eligible to receive special education as a student with a speech or language impairment, developed an IESP with a projected implementation date of September 7, 2023 (Dist. Ex. 3).  The August 2023 CSE recommended that the student receive group special education teacher support services (SETSS) for three periods per week in Yiddish; group occupational therapy (OT) for two 30-minute periods per week in English; group speech-language therapy for two 30-minute periods per week in Yiddish; and group counseling services for two 30-minute periods per week in Yiddish (id. at p. 11).[1]^, [2]

In a prior written notice, the district indicated that the August 16, 2023 CSE met for an initial eligibility determination where the parent indicated that he was placing the student in a nonpublic school at his own expense and seeking equitable services from the district, and, therefore, upon the district finding the student eligible, the CSE developed an IESP (Dist. Ex. 2).[3]

On October 12, 2023, the parent entered into a parent service contract with Mount Resources, wherein the parent confirmed that the district had not offered "any suitable providers" to the student for the majority of the services recommended in the August 2023 IESP, and that the parent was requesting that Mount Resources provide the recommended services "to whatever extent possible for the 2023-24 school year" (Parent Ex. C).  The listed services included the student's recommendations for SETSS, speech-language therapy, and OT, but the list omitted the student's recommended counseling services (see id. at p. 1; see also Dist. Ex. 3 at p. 11).  Mount resources agreed to provide "SETSS/SEITS" at a rate of $205 per hour, speech-language therapy at a rate of $275 per hour, and OT at a rate of $275 per hour (Parent Ex. C at p. 2).[4]  The contract's terms indicated that the parent agreed to retain counsel and file a due process complaint notice in an attempt to obtain public funding for the privately provided services, however, the parent agreed to be liable for the full amount of all recommended services delivered by Mount Resources in the event the parent was not able to secure funding from the district "or elsewhere" (see id.).  The parent's responsibility to pay the full amount of privately provided services to the student would be "triggered by the completion of the case pending in connection with the above-referenced due process complaint" notice (id.).

In a signed "Acknowledgement of Liability" dated April 15, 2024, the parent indicated that the student was receiving three periods of SETSS per week and two 30-minute periods of OT per week from Mount Resources, which began on September 7, 2023 (Parent Ex. D).

A. Due Process Complaint Notice

In a due process complaint notice dated July 13, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A).  The parent alleged, through his attorney, that he was unable to locate SETSS and related service providers, and that the district failed to implement the recommendations from the August 16, 2023 IESP (id. at p. 2).  The parent sought an order for the district to fund the providers located by the parent for the 2023-24 school year at the providers' contracted rates (id. at p. 3).  The parent further reserved the right to seek compensatory education services for any services not provided during the 2023-24 school year and sought an order that the district fund "compensatory periods of SETSS and related services for the entire 2023-24 school year – or the parts of which were not serviced . . . at the prospective provider's contracted rate" (id. at pp. 2-3).  The parent further sought a pendency order based upon the August 2023 IESP (id. at pp. 2, 4-5).

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 record includes an omnibus standing order dated July 17, 2024 that was issued by the IHO to "set firm expectations of the Parties to resolve the matter fairly and efficiently" (IHO Omnibus Standing Order).  The standing order indicated that the parties were to articulate any known or knowable affirmative defenses at the earliest date the affirmative defense was known to the moving party, and that generalized affirmative defenses that did not specifically address the facts and circumstances of the student would not be accepted (id. at p. 4).  The standing order further indicated that the parent must provide evidence of compliance with the June 1 requirement under Education Law § 3602-c, and the district was required to provide evidence of "parental intent to parentally place" the student (id.).

In a due process response dated August 1, 2024, the district alleged that it intended to pursue a motion to dismiss any and all claims or requested relief regarding implementation of the student's program under Education Law § 3602-c on the basis that the IHO did not have subject matter jurisdiction, and on the basis that any and all claims are not ripe (IHO Ex. IV).  The district further indicated that it intended to pursue all applicable defenses, 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 (id. at p. 1).

During a prehearing conference on August 19, 2024, the district indicated that it would be raising the June 1 affirmative defense pursuant to Education Law § 3602-c, as the district was not in possession of any evidence that the parent submitted a written request for equitable services by June 1, 2023 (Tr. p. 8).  Counsel for the parent contended that an inquiry into the notice requirement would be unnecessary because the IESP was developed in August 2023, and because the district waived the affirmative defense through its conduct (Tr. p. 10).

The district filed a motion to dismiss dated August 28, 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. I).  The parent, through his attorney, submitted a memorandum of law in opposition to the motion to dismiss dated September 4, 2024 (IHO Ex. II).

An impartial hearing convened on September 24, 2024 (Tr. pp. 18-75).  Parent's counsel indicated that the parent was only seeking public funding for the student's unilaterally obtained SETSS and OT, that the parent was not seeking relief with respect to counseling or speech-language therapy services, and that the parent was withdrawing any compensatory education services claims (Tr. pp. 47-49).  The IHO orally denied the district's motion to dismiss based upon subject matter jurisdiction, finding that the due process complaint notice was filed on July 15, 2024, prior to a July 16, 2024 deadline set forth in an emergency amendment to 8 NYCRR 200.5 (Tr. pp. 26-27).  The IHO also denied the district's motion to dismiss based upon the claim that the parent's claims were not ripe, as the due process complaint was filed after the conclusion of the 2023-24 school year (id.).  The district reasserted the June 1 affirmative defense and contended that the parent did not request equitable services prior to the 2023-24 school year (Tr. pp. 47, 51, 65).  Counsel for the parent contended that the district, in raising the affirmative defense, failed to offer evidence supporting the contention (Tr. pp. 67-68).  The parent further contended that the district waived the defense because an IESP was created after June 1, 2023 (Tr. p. 68).

After the impartial hearing concluded, the district submitted a "supplement to motion to dismiss for lack of subject matter jurisdiction" dated October 15, 2024 (IHO Ex. III).

In a decision dated December 23, 2024, the IHO denied relief to the parent "with prejudice" because there was no evidence in the record that the parent provided a written request for equitable services prior to June 1, 2023 (see generally IHO Decision).[5]  The IHO found that the district did not, despite the parent's contentions, waive the affirmative defense regarding the June 1 notice, as "even if the IESP from the previous school year would, by its terms, still have been 'in effect' at the start of the next school year, that [did] not excuse" a lack of June 1 notice, as such a request must be made each year (id. at p. 6).  The IHO further noted that the parent was aware of the district's intention to assert the affirmative defense, as it was raised in the due process response, at the prehearing conference, and during both the district's opening and closing statements at the impartial hearing (id.).  The IHO further found that the creation of the August 2023 IESP did not constitute a waiver of the June 1 defense because the district did not provide any services to the student for the 2023-24 school year (id. at pp. 6-7).  Based on her findings that the parent failed to comply with the June 1 requirement and that the student was not entitled to the services recommended in the August 2023 IESP, the IHO found "no need to analyze the appropriateness of the [unilaterally obtained] services . . . [or to] address the equities in this matter" (id. at p. 7).  The IHO further noted that she denied the district's motion to dismiss at the impartial hearing, and, as the motion had already been addressed, the IHO declined to consider the district's supplement to that motion (id. at p. 4).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district did not waive the June 1 affirmative defense, as the "creation of an IESP with an exact implementation date," such as the August 2023 IESP, constitutes waiver.  The parent further contends that a failure to comply with the June 1 requirement does not constitute a ground to deny all relief.  The parent claims that the district should have asserted the affirmative defense in the due process response, but then also contends that the district was obligated to do more than just stating its intention to raise the defense, and that it would be inequitable to allow the district to reserve the right to raise all affirmative defenses.  Further, the parent asserts that the district provided no evidence to support the affirmative defense, and, as such, the parent had no burden to refute the claim.  The parent further contends that the district's prior written notice that indicated that the district was aware that the parent requested equitable services and that an IESP was developed to provide such services, also constituted waiver.  Finally, the parent asserts that he met his burden in establishing that the unilaterally obtained services were appropriate and asks for an order for the district to fund all of the services recommended to the student in the August 2023 IESP.[6]

In an answer and cross-appeal, the district contends, among other things, that the IHO's dismissal of the parent's claims should be affirmed.  The district alleges that the hearing record is devoid of any June 1 letter, and that the parent offered nothing to dispute the district's affirmative June 1 defense.  The district further contends that the creation of an IESP, without the implementation of services, does not constitute a waiver of the June 1 affirmative defense.  With respect to the parent's contentions relating to the prior written notice, the district asserts that it was merely following State and federal requirements in creating the notice, and that does not constitute a waiver of the June 1 defense.  As for a cross-appeal, the district alleges that the IHO and this SRO lack subject matter jurisdiction to hear the parent's claims, and that the matter should be dismissed.  The district argues in the alternative that if the IHO's dismissal is not upheld, this matter should be remanded to the IHO.

In an answer to the cross-appeal, the parent contends, among other things, that a remand would be improper, as the parent should not be forced to relitigate matters already presented.  The parent further opposes the district's arguments regarding subject matter jurisdiction.  Finally, the parent offers further arguments in support of the contentions in the request for review.  The district responded to the parent's answer to the cross-appeal in a reply.

V. Applicable Standards

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

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

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

A. Preliminary Matters – Subject Matter Jurisdiction

Initially, the district's contentions on cross-appeal with regard to subject matter jurisdiction must be discussed.  The district argues that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

Recently in several 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 parent would not have a right to due process under federal law; however, the student did not merely have a services plan developed pursuant to federal law, and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

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

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

However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider enhanced rates claims from parents seeking implementation of equitable services.

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 free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]).  State Review Officers 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).[10]  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).[11]  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.).[12]  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).[13]

Consistent with the district's position that New York law has never granted due process rights for IESP implementation claims or enhanced rate for services and that the preliminary injunction issued by the New York Supreme Court does not change the meaning of § 3602-c, 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]).[14]

However, acknowledging that the question has publicly received new attention from State policymakers, as well as at least one court at this juncture and appears to be an evolving situation, 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.

Finally, in regard to the district's alternative argument that the parent must be required to exhaust administrative remedies by first bringing his claims to the district's ERES unit, I find the argument to be erroneous.  While a local educational agency may set up additional options for a parent to pursue relief, it may not require procedural hurdles not contemplated by the IDEA or the Education Law (see Antkowiak v. Ambach, 838 F.2d 635, 641 [2d Cir. 1988] ["While state procedures which more stringently protect the rights of the handicapped and their parents are consistent with the [IDEA] and thus enforceable, those that merely add additional steps not contemplated in the scheme of the Act are not enforceable."]; see also Montalvan v. Banks, 707 F. Supp. 3d 417, 437 [S.D.N.Y. 2023]).

Accordingly, the IHO's determination that she possessed subject matter jurisdiction to adjudicate the parent's claim was correct, and the district's cross-appeal requesting that the IHO's denial of its motion to dismiss the parent's due process complaint notice be overturned must be denied.

B. Individualized Education Services Program (IESP) - June 1 Deadline

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, contrary to the parent's assertion, the district timely raised the affirmative June 1 defense in its due process response (IHO Ex. IV at p. 1), as well as during the prehearing conference on September 24, 2024 (Tr. p. 8) and during the impartial hearing (Tr. pp. 47, 51, 65).  The IHO found that the defense was properly raised below, and I see no basis to disturb that finding (see IHO Decision at pp. 6-7).

Additionally, contrary to the parent's arguments that the district failed to support the affirmative defense with any sufficient evidence, I note that once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]).  Thus, I am not persuaded by the parent's argument that the district failed to sufficiently support its June 1 affirmative defense.

Moving to the parent's notice requirements, in this matter, as the district has noted in its verified answer and cross-appeal (Answer at p. 5), the hearing record indicates that the student was first identified by the CSE as a school-aged student with a disability at the August 2023 CSE meeting (Dist. Ex. 2 at p. 1).  The parent was therefore required to submit his request to the district no later than September 15, 2023, 30 days after the August 2023 CSE meeting (see Educ. Law § 3602-c[2]).  As the IHO found, the hearing record does not include a written request by the parent for equitable services for the 2023-24 school year by June 1, 2023, and I further note that there is no evidence in the record on appeal that the parent submitted such notice prior to September 15, 2023.  However, in this instance, the lack of evidence of a written notice is not the end of the inquiry.

A district may, through its actions, waive the statutory requirement for written notice from the parent for equitable services (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 written 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 statutory deadline (Educ. Law § 3602-c[2][a]).[15]  The Second Circuit has held that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" and that a waiver will be implied if "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).

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 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 some circumstances, a district may be required to develop an IESP for the student rather than await 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.

However, while convening the August 2023 CSE to create an IESP for the student may not, on its own, have constituted a waiver of the June 1 deadline, the language contained in the district's August 16, 2023 prior written notice lends further support to a finding that the district convened the CSE in response to the parent's request for dual enrollment services and, further, that it intended to arrange for delivery of the services recommended in the IESP to the student (see Dist. Ex. 2 at pp. 1-2).  Specifically, the August 2023 prior written notice documents that the parent informed the district "the [he was] placing [his] child in a nonpublic school, at [his] own expense, and [was] seeking equitable services from the [district]" (id.).  The prior written notice further stated that, "[t]herefore, an [IESP] was developed recommending the special education services [the student] will receive" (id. [emphasis added]).  The prior written notice additionally stated that "[t]he Committee has developed an IESP because [the parent] . . . indicated that [he] will be placing [the student] in a private school at [his] expense and [was] requesting equitable services" (id. at p. 2).  In other words, the language identifies that the CSE convened and developed an IESP because of the parent's communication to the district of his request for equitable services and not for an independent reason related to the district's obligation to develop an IESP or IEP for the student.  Further, the communication from the district to the parent in the August 2023 prior written notice that the student "will receive" the equitable services is without qualification that such receipt would occur only if the district had received a timely written request for services (id. at p. 1).  While the district argues that the prior written notice was developed pursuant to State and federal requirements and, therefore, does not constitute a waiver, State and federal regulations do not dictate the type of language that the district chose to include in its notice (see 34 CFR 300.503[b]; 8 NYCRR 200.5[a][3]).

Thus, the district's actions in convening the August 2023 CSE and sending the prior written notice described above reflect either a concession that the district received a written notice of the parent's request for the services or a waiver of the requirement for written notice.  Accordingly, the evidence in the hearing record does not support the IHO's determination that the student was not eligible for equitable services for the 2023-24 school based on the district's affirmative defense that the parent did not submit a timely written request for services.

Having found that the student was entitled to equitable services for the 2023-24 school year, the merits of the parent's claims and requests for relief remain to be addressed.  When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims 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, as the district has requested in the alternative, the matter is remanded to the IHO to address in the first instance the issues of whether the district failed to implement the August 2023 IESP; whether private services delivered to the student by Mount Resources during the 2023-24 schoolyear were, under the totality of the circumstances, specially designed to address the student's unique special education needs; and whether equitable considerations weigh in favor of an award of district funding for the private services.  However, as noted above, the parent withdrew all claims for compensatory education services and indicated that he was not seeking any relief with respect to counseling services and speech-language therapy (Tr. pp. 47-49), a fact that the IHO noted in her decision (IHO Decision at p. 3 n.2, citing Tr. pp. 48-49).  Thus, despite the parent now raising on appeal requests for relief related to counseling and speech-language therapy, I see no reason to disturb the IHO's findings that the claims were withdrawn, and, upon remand, the IHO need not consider those previously withdrawn claims.  Additionally, I leave it to the IHO's sound discretion to determine on remand whether any additional evidence is required to complete the record.

VII. Conclusion

The evidence in the hearing record does not support the IHO's finding that the parent's claims were foreclosed based on the lack of evidence of a timely written request from the parent for dual enrollment services.  As the IHO did not address the district's implementation of the IESP, the appropriateness of the parent's unilaterally-obtained services, or equitable considerations, this matter is remanded to the IHO to make determinations on these issues.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated December 23, 2024 is modified by reversing that portion which found that the student was not entitled to dual enrollment services from the district for the 2023-24 school year due to the parent's failure to submit a written request for such services; and

IT IS FURTHER ORDERED that that the matter is remanded to the IHO to determine whether the district implemented the services mandated in the August 2023 IESP; whether unilaterally obtained services provided to the student by Mount Resources were appropriate for the student for the 2023-24 school year; and whether equitable considerations weigh in favor of granting funding for the costs of the services provided by Mount Resources.