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 the decision of an impartial hearing officer (IHO) which dismissed the parent's due process complaint notice for lack of subject matter jurisdiction to review the parent's claims.  The appeal must be sustained, and the matter remanded to the IHO for further proceedings.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

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

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

III. Facts and Procedural History

Given the procedural posture of the matter—namely, that it was dismissed with prejudice from proceeding within an administrative forum prior to conducting an impartial hearing—the hearing record does not include any evidence regarding the student's educational history or the procedural history of this matter, other than what may be gleaned from the parent's due process complaint notice, the district's response to the due process complaint notice, and the parties' motion papers.

A. Due Process Complaint Notice

By due process complaint notice, dated July 14, 2024, the parent—through an individual with Prime Advocacy, LLC—alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (see Due Process Compl. Not. at p. 1).  According to the due process complaint notice, the district last developed an IESP for the student in January 2022, which included recommendations for the student to receive the following special education program: eight sessions per week of special education teacher support services (SETSS) and two 30-minute sessions per week of individual occupational therapy (OT) (id. at pp. 1-2).  In addition, the parent indicated that the district failed to "develop an appropriate program of services" for the student for the 2023-24 school year, and the parent had been "unable to procure a provider for the school year at the [district] rates" (id.).  As a result, the parent "had no choice but to retain the services of an agency to provide the mandated services at an enhanced rate set by the provider" (id. at p. 2).  Additionally, the parent alleged that, for the 2024-25 school year, the district failed to develop "an updated program of services for the student," and thus, failed to offer the student a FAPE and "equitable services" (id.).

As relief, the parent requested an order directing the district to fund the student's SETSS (eight sessions per week) and OT (two 30-minute sessions per week) at the enhanced rates for the 2023-24 school year and to award all related services recommended in the student's "last IESP" for the 2023-24 school year (Due Process Compl. Notice at p. 3).  Additionally, the parent requested an order directing the district to fund a bank of compensatory educational services at the enhanced rate for the student consisting of any services the student was not provided (id.).  With respect to the 2024-25 school year, the parent requested an order directing the district to provide the student with the "services and supports included by the CSE in the last program of services developed for the student" and for all services to be ordered at the "enhanced provider rates" to enable the parent to implement the ordered services (id.).

By motion to dismiss dated August 27, 2024, the district asserted that the parent's due process complaint notice should be dismissed on the grounds that the IHO lacked subject matter jurisdiction and the parent's claim was not ripe (see Dist. Mot. to Dismiss at pp. 2-6).  More specifically, the district argued that there was "no federal right to file a due process claim regarding services recommended in an IESP," and neither section 3602-c nor section 4404 of the Education Law granted due process rights for IESP implementation; therefore, such claims were not within the jurisdiction of the tribunal (id. at pp. 2-4).  In addition, the district argued that the claim in the parent's due process complaint notice was not ripe because IESP services were not, by statute, authorized to be provided outside the regular school year, which had been defined as a "10-month period" and thus did not include the provision of services during the summer (id. at pp. 4-8).  The parent opposed the district's motion to dismiss, arguing that an order of the State Supreme Court stayed and suspended the implementation of a recently revised State regulation, and the IHO had subject matter jurisdiction over the parent's claims (see generally Parent Answer to Mot. To Dismiss).

Thereafter, the district filed a response to the parent's due process complaint notice dated September 16, 2024, noting its intention to assert numerous defenses, among which was that the IHO lacked subject matter jurisdiction to adjudicate the claims in the parent's due process complaint notice (see generally Response to Due Process Compl. Not.).

B. Impartial Hearing Officer Decision

On December 4, 2024, the Office of Administrative Trials and Hearings (OATH) appointed an IHO to this matter (see IHO Ex. I at pp. 1-2).  In an email to the parties dated December 11, 2024, the assigned IHO informed them that she was "considering dismissing all cases [listed] in the [enclosed] docket on grounds of lack of subject matter jurisdiction," and referenced federal regulations implementing the IDEA as a basis for the authority to do so (id. at p. 2).  The IHO asked the parties to submit responses to the "potential dismissals for lack of subject matter jurisdiction" no later than December 20, 2024 (id.).  The IHO further indicated that she was "hereby adjourning all hearings for the cases [set forth] in this omnibus docket pending determination of subject matter jurisdiction" (id.).

Later on the same day, December 11, 2024, the lay advocate assisting the parent emailed the IHO and opposing counsel, and asked the IHO if she "would consider recusing from these cases and having them heard by another IHO," noting further that the "SRO ha[d] consistently taken the position that subject matter jurisdiction does exist for these cases" and that the "IHO d[id] not agree with the SRO on this point of law" (IHO Ex. I at p. 1).  In response, the IHO indicated via email that same day that she did "not see any legitimate reason to recuse" and that she "must consider subject matter jurisdiction and ha[d] given [the parent] the opportunity for input" (id.).

The district representative indicated via email dated December 11, 2024, that he objected to the parent's request for the IHO to recuse herself, and further noted that, while "SRO decisions" may provide "guidance," the decisions were "not binding upon IHOs" (IHO Ex. II at p. 1). 

In a decision dated December 27, 2024, the IHO granted the district's motion to dismiss for lack of subject matter jurisdiction (see IHO Decision at p. 2).[1]  The IHO determined that she lacked subject matter jurisdiction over "rate disputes" brought pursuant to Education Law § 3602-c (id. at pp. 3 n.7, 7-8).  The IHO noted a recently adopted emergency amendment to the Commissioner's regulations and a subsequent New York State Court's issuance of a restraining order staying implementation or enforcement of the emergency regulation (id. at p. 1 n.2).  The IHO explained that her determination that she lacked subject matter jurisdiction to preside over implementation or rate disputes brought under Education Law § 3602-c was not based on the emergency amendment in light of the restraining order (id.).

The IHO interpreted Education Law § 3602-c to allow "two limited 'gateways'" for the type of disputes that could be brought under IDEA due process complaint procedures: those related to review of CSE recommendations and those related to child find activities (IHO Decision at p. 7).  According to the IHO, the parent's claims were "better characterized as a rate dispute" because the parent had placed the student in a private school and was not disputing the CSE's IESP recommendations or child find activities (id.).

The IHO noted that IHOs appointed pursuant to the IDEA and Education Law § 4404 were "trained primarily to decide IDEA-based issues" and "lack[ed] the expertise to decide" rate disputes (IHO Decision at pp. 5, 7).  The IHO further found that nothing in "federal or [S]tate law or regulations that grant[ed] an IDEA IHO authority to hear a rate dispute" (id. at p. 7).  The IHO further noted that decisions from SROs and guidance from the New York State Education Department were not "binding precedent" (id. at p. 8).  In addition, the IHO noted that the parent did not address the IDEA regulations in her opposition papers and that the parent "simply ignore[d] the fact that parents ha[d] always had the right to resolve the instant dispute in other forums" (id.).

Next, the IHO reviewed the legislative history of Education Law § 3602-c and determined that language included in the legislative history regarding the "failure or refusal of a board of education to provide such services" referred to a failure or refusal to recommend the services that a parent wished for, or a school district's failure to provide the services in the location that a parent wanted (IHO Decision at p. 8 n. 29).  The IHO also addressed the parent's reliance on Gabel v. Board of Education of Hyde Park Central School District, 368 F. Supp. 2d 313 (S.D.N.Y. 2005) (id. at pp. 8-9).  The IHO noted that, in Gabel, the parents "wanted related services for their child who was placed in a private school, but the [local educational agency (LEA)] did not recommend any (or possibly did not recommend what the parents wanted)" (id. at p. 9).  The IHO determined that the parent's lay advocate misrepresented Gabel because it was not a "failure to implement" claim or rate dispute and, instead, the issue in Gabel was the school district's failure to recommend related services after having conducted evaluations (id. at p. 9 & n. 32).  The IHO determined the New York State legislature did not intend to grant parents the right to a due process hearing before an IDEA IHO for a rate dispute or "failure to implement" claim under § 3602-c (IHO Decision at p. 9).

Lastly, the IHO addressed fairness (see IHO Decision at pp. 9-10).  The IHO determined that dismissing the case with prejudice would not be "fundamentally unfair" to the parent because she had an opportunity to be heard and could seek relief in an alternate forum for her rate dispute, such as resolving such claim directly with the CSE, filing a State complaint under the IDEA regulations, or an appeal to the Commissioner of Education pursuant to Education Law § 310, or availing herself to the district's Enhanced Rate Equitable Services (ERES) unit, a "recently added . . . dedicated forum specially for rate disputes" (id. at p. 10). The IHO also indicated that the parents were permitted to file an action about the "alleged unfairness, illegality or failure to comply with state law" in State court, or potentially in federal court (id.).

Accordingly, the IHO dismissed the parent's due process complaint notice "with prejudice with respect to this forum, but without prejudice to refile in an appropriate forum" (IHO Decision at p. 10).

IV. Appeal for State-Level Review

The parent appeals with the assistance of the lay advocate and argues that the IHO erred in dismissing her due process complaint notice with prejudice for lack of subject matter jurisdiction.[2] The parent asserts, among other things, that, under the existing statutory and regulatory scheme, she has a right to file a due process complaint notice in order to obtain the relief sought in this proceeding.  As relief, the parent requests reversal of the IHO's decision, and remand to an IHO for a full hearing on the merits.

In an answer, the district asserts that the IHO correctly determined that she lacked subject matter jurisdiction to review the parent's claims and granted the district's motion to dismiss.  The district further asserts as a defense that the parent's appeal should be dismissed because of the untimeliness of the notice of intention to seek review and because the pleading was not compliant with Part 279 of State regulations because it included "nonconformed signatures."[3]

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]).[4]  "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.).[5]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion—Subject Matter Jurisdiction

Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  Subject matter jurisdiction can be raised at any time in the proceedings, including on appeal (see U.S. v. Cotton, 535 U.S. 625, 630 [2002]; Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 733 [2d Cir. 2007] [ordering supplemental briefing on appeal and vacating a district court decision addressing an Education Law § 3602-c state law dispute for lack of subject matter jurisdiction]).  Indeed, a lack of jurisdiction "can never be forfeited or waived" (Cotton, 535 U.S. at 630).

In response to the parent's appeal asserting that the IHO erred in dismissing this matter due to a lack of subject matter jurisdiction, the district argues that the IHO correctly found that she did not have subject matter jurisdiction to hear the parent's claims.  The district further argues that the parent is "not entitled to due process for [her] rate implementation dispute."  More specifically the district contends 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.

Initially, the IHO's description of the parent's due process complaint notice as being limited to a dispute as to a rate for services agreed to by both parties and implemented by the parent leaves a significant portion of the parent's dispute out of the discussion (see IHO Decision at p. 7).  Specifically, the due process complaint notice included allegations that the CSE did not convene to develop an educational program for the student for the school year at issue, the 2023-24 school year, as well as for the 2024-25 school year (see Due Proc. Compl. Not. at pp. 1-2).  It is not clear from a review of the IHO's decision why a claim that the CSE failed to convene to develop an educational program for the student would be considered a rate dispute or why the IHO would not have jurisdiction over such claims (see generally IHO Decision).

Nevertheless, even if the parent had only raised a claim that the district failed to implement an IESP for the student, recently in a number of decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-088; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; 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]).[6]

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]).  SROs have, in the past, after 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).[7]  In addition, the New York Court of Appeals has explained that students authorized to received 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]), 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.[8]

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).[9]  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.).[10]  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).[11]

Consistent with the district's position that there is not and has never been a right to bring a due process complaint for implementation of IESP claims or enhanced rate for services, 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]).[12]

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.

The IHO articulated the basis for her view that she did not have subject matter jurisdiction over the parent's claims.  While I may ultimately disagree with the IHO's view on the issue—at least under the current state of the law and regulations—it is clear that she wrestled with the question.  In her analysis, the IHO relied heavily on the idea that a "rate dispute" was distinguishable from an implementation dispute, characterizing the parent's self-help actions in arranging for private services without the consent of the school district as implementation of the district's recommendations with the rate to be paid for the private services being the only issue to be decided (see IHO Decision at pp. 4-5).  However, characterization of the matter as a "rate dispute" divorced from the context and Burlington/Carter legal standard is not an appropriate approach particularly where there is no indication in the matter that the district conceded that it failed to provide the student with equitable services for the school years at issue or that the private services obtained by the parent were appropriate (see Application of a Student with a Disability, Appeal No. 24-097; Application of a Student with a Disability, Appeal No. 20-087).

Finally, in regard to the IHO's finding that the parent could pursue alternative forums, the district's argument that the parent failed to exhaust administrative remedies by not first bringing her claims to the district's ERES unit is erroneous. Notably, 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]).

Based on the foregoing, the IHO's dismissal with prejudice on the basis of subject matter jurisdiction must be reversed and the case remanded because the IHO dismissed the matter before entering evidence and holding a hearing and did not make any alternative findings with respect to the issues raised in the parent's due process complaint notice following the IHO's determination that she lacked subject matter jurisdiction over such claims.  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, the IHO should have—at a minimum, and out of an abundance of caution—made determinations regarding the issues in the first instance.  In the event of an administrative or judicial review, in which the reviewing body might disagree with a singular finding, it is important to have the remaining issues and the rationales addressed (cf. F.B., 923 F. Supp. 2d at 589).  Also, such an analysis serves as a guide to the district as to whether it should undertake corrective action in the future in order to comply with the IDEA.

VII. Conclusion

For the reasons described above, the IHO erred in dismissing this matter for lack of subject matter jurisdiction and the matter must be remanded for further evidentiary proceedings to determine whether the district implemented special education services for the 2023-24 and whether the district failed to offer the student a FAPE for the 2024-25 school year by failing to develop a special education program for the student, consistent with the allegations in the parent's due process complaint notice, or if the district was not required to do so due to the district's assertion of any defenses to the parent's claims, such as a lack of a request for dual enrollment services prior to June 1, 2023 and June 1, 2024.  If the district was required to provide dual enrollment services and failed to do so, the IHO shall render a determination of whether the services the parent may have unilaterally-obtained from private provider(s) were, under the totality of the circumstances, appropriate to address the student's needs and, if so, whether equitable considerations favor the parent, including any defense(s) raised by the district regarding excessiveness of the costs of the -unilaterally-obtained services obtained by the parent.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated December 27, 2024, dismissing the parent's due process complaint notice for lack of subject matter jurisdiction is reversed; and

IT IS FURTHER ORDERED that this matter is remanded to the IHO for further proceedings in accordance with this decision; and

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