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 district) appeals from the decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to reimburse the parent for the costs of her daughter's unilaterally obtained special education teacher support services (SETSS) delivered by Little Mentchen, LLC (Little Mentchen) for the 2023-24 school year.  The appeal must be sustained.

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

In this matter, the evidence in the hearing record indicates that, in an email dated May 30, 2023, an employee with Little Mentchen forwarded an executed, district form to the district (see Parent Ex. B at pp. 1-2; Tr. p. 31).  According to the district form dated May 29, 2023, the student was being placed in a nonpublic school for the 2023-24 school year at parent expense and it was requested that the district provide educational services to the student under the State's dual enrollment statute (see Parent Ex. B at p. 1).[1]

The evidence in the hearing record regarding the student's educational history is sparse.  Briefly, a CSE convened on July 21, 2023, and having found that the student remained eligible to receive special education as a student with a speech or language impairment, developed an IESP for the student with a projected implementation date of September 7, 2023 (see Dist. Ex. 1 at pp. 1, 6-7, 9).[2]  The July 2023 CSE recommended that the student receive five periods per week of SETSS in a group, one 30-minute session per week of individual speech-language therapy services, and one 30-minute session per week of speech-language therapy in a group (id. at pp. 6-7).[3]  According to the July 2023 IESP, the student was entering fourth grade in September 2023, and she had been receiving five periods per week of SETSS and individual and group speech-language therapy services at the time of the CSE meeting (id. at p. 1).

According to the director of special education at Little Mentchen (director), the student began receiving five hours per week of SETSS at her "mainstream," nonpublic school on "September 7, 2023" (Parent Ex. H ¶¶ 1, 7, 9, 11).[4]  The evidence further demonstrates that Little Mentchen delivered SETSS to the student through "June 2024" (id. ¶ 9).

On October 19, 2023, the parent electronically executed a "Little Mentchen—Parent Contract" for the agency—Little Mentchen—to deliver five hours per week of SETSS to the student for the 2023-24 school year (Parent Ex. C at pp. 1-2).[5]  According to the agreement, the agency charged $200.00 per hour for SETSS (id. at p. 1).

A. Due Process Complaint Notice

By due process complaint notice dated July 15, 2024, the parent, through her attorney, alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A at p. 1).  The parent indicated that, while the student's July 2023 IESP included recommendations for five hours per week of SETSS and two 30-minute sessions per week of speech-language therapy for the 2023-24 school year, the district had failed to "inform" her regarding how the district would implement those services and failed to "identify or assign providers to implement" those services (id. at pp. 1-2).  According to the parent, any attempt by the district to rely on the parent to "identify a provider" was an "improper and impermissible" "burden shifting" (id. at p. 2).[6]  As a result of the district's failures, the parent noted that she had "no choice but to seek due process" to implement the student's IESP services through private providers "at an enhanced rate" (id.).[7]

As relief, the parent requested an order directing the district to fund five hours per week of SETSS and to fund the "related services" in the July IESP for the 2023-24 school year at the enhanced rates set by the providers (see Parent Ex. A at p. 2).  The parent also requested that the district fund the "difference (if any) between the rate charged by the [s]tudent's SETSS provider [or] agency for all services covered under a pendency order [or] agreement and the pendency rate paid by the [district] pursuant to that order [or] agreement" (id.).  Additionally, the parent requested an order directing the district to fund the "difference (if any) between the rate charged by the student's related service provider(s) for all services covered under a pendency order [or] agreement and the pendency rate paid by the [district] pursuant to that order [or] agreement" (id.).  Finally, the parent requested a bank of compensatory educational services to "make up for any mandated services not provided" to the student during the 2023-24 school year (id.).

B. Impartial Hearing Officer Decision

On February 4, 2025, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-52).  At the impartial hearing, the parent's attorney clarified that the parent was seeking funding for the costs of the unilaterally obtained SETSS at $200.00 per hour and a bank of compensatory educational services for the speech-language therapy services that were not obtained or provided during the 2023-24 school year (see Tr. pp. 11-12).

In a decision dated February 8, 2025, the IHO found that the district failed to provide the student with "services on an equitable basis" by failing to implement the student's July 2023 IESP (IHO Decision at pp. 6-7).  The IHO noted that the district "limited their arguments" at the impartial hearing to the lack of a June 1 request, the appropriateness of the SETSS provided by Little Mentchen, and the rates charged by the agency for SETSS, but "without presenting any testimonial or documentary evidence to support their claims" (id. at p. 7).[8]  As a result, the IHO determined that the district's "inability to provide proof of failure of notice" and the district's failure to implement the July 2023 IESP constituted a failure to offer the student a FAPE on an equitable basis (id.).

With regard to the appropriateness of the unilaterally obtained SETSS from Little Mentchen, the IHO found that the parent sustained her burden to establish that she had a valid contract with Little Mentchen and that the progress reports and assessments reflected that the student's needs were addressed through interventions tailored to those needs (see IHO Decision at pp. 7-9).

With regard to equitable considerations, the IHO concluded that the agency's rate for SETSS was "reasonable and appropriate under the circumstances" (IHO Decision at p. 9).  Nevertheless, the IHO found that the parent's requested rate for SETSS "must be reduced" based on an analysis of the "difference between the rate [Little Mentchen] charge[d the p]arent and what [wa]s paid to its providers" (id. at pp. 10-11).  Using her own formula from a website, the IHO concluded that the district must fund the SETSS from Little Mentchen at $170.00 per hour for the 2023-24 school year (id. at p. 11).[9]

Next, the IHO turned to the issue of the June 1 deadline for parents to request equitable services pursuant to State statute (see IHO Decision at pp. 9-10).  Here, the IHO found that, while SROs have held that the district was under "no obligation to prove the non-existence of the notice once the affirmative defense [wa]s timely raised," the IHO determined that—as an affirmative defense—the district "should provide some support in furtherance of its defense" (id. at p. 10).  The IHO noted that the district raised the June 1 affirmative defense in both its opening and closing statements, but "failed to provide any evidence to support its assertion that it did not receive the June 1st notice" (id.).  For example, the IHO indicated that the district did not present any documentary or testimonial evidence, "such as an affidavit" or a log from its "computer-generated record tracking notices received and sent by the [district]," to establish that the district had conducted a "search for the June 1st notice" (id.).  Having found that the district did not meet its burden of proof with regard to the June 1 affirmative defense, the IHO indicated that "no further analysis [wa]s necessary regarding the actions of [the p]arent and any evidence or lack of evidence submitted because the [district's] failure to meet its initial burden render[ed] the issue of burden-shifting moot" (id.).

Notwithstanding the IHO's finding, the IHO noted that if the district had "met their affirmative defense burden," the parent "would have failed to demonstrate that proper notice had been given" because the June 1 request was signed by the student's SETSS provider, which was "improper" (IHO Decision at p. 10).  The IHO further noted, however, that this point was irrelevant, as the district had failed to sustain its initial burden (id.).

As relief, the IHO ordered the district to fund the costs of the student's SETSS delivered by Little Mentchen during the 2023-24 school year at $170.00 per hour (five hours per week, 10-month school year), fund a bank of compensatory educational services consisting of 18 hours of individual speech-language therapy services, and fund a bank of compensatory educational services consisting of 18 hours of speech-language therapy services in a group (see IHO Decision at p. 12).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred by finding that the district bore an evidentiary burden of proof with regard to the June 1 defense.  Next, the district contends that the IHO erred by failing to dismiss the parent's due process complaint notice due to the parent's noncompliance with the dual enrollment statute.  More specifically, the district asserts that the parent's June 1 request was noncompliant because the parent did not sign the June 1 request.  Next, the district argues that the IHO erred by finding that the unilaterally obtained SETSS were appropriate to meet the student's needs, especially when the hearing record was devoid of evidence about the instruction the student received at her nonpublic school.  As relief, the district seeks to reverse the IHO's decision in its entirety.

In an answer, the parent responds to the district's allegations and generally argues to uphold the IHO's decision in its entirety.

V. Discussion—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]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

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]).

Initially, it is undisputed that, as the IHO noted in the decision, the district properly raised the June 1 affirmative defense in both its opening and closing statements (see IHO Decision at p. 10; see also Tr. pp. 42-45; Dist. Ex. 5 at pp. 2-3).  In the opening statement, the district generally asserted that the parent failed to put the district on notice of her intention to parentally place the student prior to June 1, 2023 for the 2023-24 school year (see Dist. Ex. 5 at pp. 2-3).  In the closing statement, the district representative argued more specifically that the parent failed to provide "proper notice" to the district that she was seeking equitable services for the student before June 1, 2023 (Tr. p. 43).  The district representative asserted that, while the parent provided the district with a signed June 1 request, evidenced by parent exhibit B, "multiple issues" existed with the June 1 request (id.).  First and foremost, the district representative stated that the June 1 request was signed by the SETSS provider, not the parent, and the hearing record did not include any evidence that the parent had authorized the SETSS provider to sign the June 1 request on the parent's behalf (id.).  Next, the district representative indicated that, although an email thread accompanied the June 1 request in evidence, it included "multiple other students" in the same email from Little Mentchen to the district, and it was unclear whether a parent could comply with the notice requirements by having an agency send the June 1 request to the district, as opposed to an attorney or the parent herself (see Tr. pp. 43-44).  And finally, the district representative argued that it was unclear whether the parent authorized the agency to send the June 1 request to the district, as the parent was not in a contractual relationship with Little Mentchen until October 19, 2023, when the contract for services was executed (see Tr. p. 44).  For these reasons, the district representative contended that the parent had not provided the district with proper notice (id.).[10]

The parent's attorney noted in the closing statement that the hearing record contained sufficient evidence that the June 1 request was sent to the district on May 30, 2023, prior to the statutory deadline (see Tr. p. 47).[11]

As previously noted, the IHO examined the district's June 1 defense in the decision (see IHO Decision at pp. 9-10).  However, the IHO's determination that the district had failed to meet its burden with regard to establishing the June 1 affirmative defense appears to have been solely predicated on the fact that the district failed to present evidence demonstrating that it had not received the June 1 request—a fact that the district had not asserted as an issue with the June 1 request in either its opening or closing statements (compare IHO Decision at pp. 9-10, with Dist. Ex. 5 at pp. 2-3, and Tr. pp. 42-45).  In addition, the district representative, as part of the cross-examination of the parent's witness, did not elicit or seek to elicit evidence concerning whether or not the district had received the June 1 request (see generally Tr. pp. 17-33, 38-41).

To be clear, the issue of the June 1 request was explored at the impartial hearing through the parent's witness.  For example, when the director was referred to parent exhibit B, she explained that the emails contained therein had been used to send June 1 requests to the district on behalf of "multiple students" (Tr. pp. 30-32; Parent Ex. B at pp. 1-2).  In addition, the director confirmed that Little Mentchen typically sent the June 1 requests to the district on behalf of many parents, noting more specifically that the parent in this matter "authorize[d] the sending of" the June 1 request (Tr. pp. 32-33).  According to the director, the parent had signed the June 1 request (see Tr. p. 33).

However, when subsequently asked to look more closely at the signature on parent exhibit B—the June 1 request—the director agreed, "100 [percent]," that the signature on the June 1 request was that of the SETSS provider and not the parent (Tr. p. 39; see Parent Ex. B at p. 1).  She testified, however, that she could not explain "how that could have happened or why that happened," noting that the agency would "never intentionally ever do something like th[at]" and suggested that "it was probably just . . . something that went very wrong," but reiterated that it was "not something that [the agency woul]d ever promote or ever do" (Tr. pp. 39-40).  The director also testified that there was "no reason" the SETSS provider would sign the June 1 request, and questioned how the SETSS provider would have obtained the June 1 request in the first instance (Tr. pp. 40-41).  The director testified that it made sense to her and she would "love to look into this more" (Tr. p. 41).  She further testified that neither she, herself, nor the agency would ever sign a June 1 request on the parent's behalf (see Tr. pp. 38-39).  Additionally, the director testified that the SETSS provider was an "independent provider," rather than an employee of the agency (Tr. p. 29).

In light of the foregoing, the IHO erred in her analysis of the June 1 request by focusing on whether the district had received the June 1 request, because the evidence in the hearing record demonstrates that the June 1 request was not made by the parent and instead was made by the student's service provider.  Based on the evidence in the hearing record, it is undisputed that neither the parent nor a duly authorized representative from Little Mentchen signed the June 1 request on the parent's behalf (see Tr. pp. 39-41; Parent Ex. B at p. 1).[12]  Moreover, the hearing record is devoid of evidence establishing that the SETSS provider who signed the notice was authorized by the parent to do so or was otherwise in some type of parental relationship that would have permitted the SETSS provider, pursuant to statute, to request equitable services via the June 1 request for the student (see generally Tr. pp. 1-52; Parent Exs. A-I; Dist. Exs. 1; 3; 5).[13]  Instead, the evidence reflects that the director of Little Mentchen had no idea why the SETSS provider had signed the June 1 request or how it could have transpired.  Consequently, the IHO erred by denying the district's request to dismiss the parent's due process complaint notice based on the failure to provide written request from the parent to the district.

VII. Conclusion

The evidence in the hearing record shows that there was a request from the SETSS provider for dual enrollment services rather than the parent, and the hearing record otherwise does not contain a written request from the parent to the district prior to June 1, 2023. Accordingly her claim seeking funding for the student's unilaterally obtained SETSS for the 2023-24 school year and the IHO's award of compensatory educational services consisting of speech-language therapy for the 2023-24 school year must be dismissed and the necessary inquiry is at an end.

I have considered the parties' remaining contentions and find I need not address them in light of my determinations herein.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated February 8, 2025, is modified by reversing that portion which found that the district failed to meet its "initial burden" to establish that the parent had not provided a proper June 1 request for dual enrollment services to the district prior to June 1, 2023; and,  

IT IS FURTHER ORDERED that the IHO's decision, dated February 8, 2025, is modified by reversing that portion that ordered the district to fund the costs of the student's unilaterally obtained SETSS from Little Mentchen for the 2023-24 school year at the rate of $170.00 per hour; and,

IT IS FURTHER ORDERED that the IHO's decision, dated February 8, 2025, is modified by reversing that portion which ordered the district to fund a bank of compensatory educational services consisting of 18 hours of individual speech-language therapy services and 18 hours of speech-language therapy services in a group for the student.