I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private services delivered by EDopt, LLC (EDopt) for the 2023-24 school year.  The district cross-appeals from the portion of the IHO's decision which did not address the appropriateness of the unilaterally obtained services and equitable considerations.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The parties' familiarity with the facts and procedural history of this case are presumed and will not be recited in detail.  Briefly, a CSE convened on August 8, 2019, determined that the student was eligible for special education as a student with a speech or language impairment, and created an IESP for the student with an implementation date of September 5, 2019 (see Parent Ex. B).[1]  The CSE recommended that the student receive three periods per week of direct group special education teacher support services (SETSS), together with one 30-minute session per week of individual speech-language therapy and one 30-minute session per week of speech-language therapy in a group (id. at p. 8).  The CSE noted that the student was paternally placed in a nonpublic school (id. at p. 11).

The hearing record does not include any information regarding what transpired with the student's education between August 2019 and the 2023-24 school year (see Tr. pp. 1-41; Parent Exs A-M; Dist. Ex. 1-3).

On September 26, 2023, the parent signed a contract with EDopt for the delivery of services to the student for the 2023-24 school year (see Parent Ex. C).[2]  The contract indicated that "[s]ervices w[ould] be provided in frequency and duration and at rates detailed in Schedule A of th[e] [a]greement" (id. at pp. 1-2).  The document attached to the contract as Schedule A indicated that services would be provided for the 10-month 2023-24 school year and included a list of rates for a range of services with both individual and group rates per 60-minute intervals (id. at p. 3).[3]  According to the document services were to be provided "[a]s per the last agreed upon IEP/IESP/FOFD"; but the contract did not specify the type, frequency, or duration of the specific  services that were to be delivered to the student or the specific document that was being relied on for identification of those services (id.).

In a letter, dated September 28, 2023, the parent, through her advocate, informed the district that it had failed to assign a provider for the student's mandated services for the 2023-24 school year (see Parent Ex. D).  The parent requested that the district fulfill its mandate and if the district did not assign a provider, the parent indicated she would be "compelled to unilaterally obtain the mandated services through a private agency at an enhanced market rate" (id.).

Regarding services delivered to the student during the 2023-24 school year, the hearing record includes an undated progress report for the 2023-24 school year produced by EDopt, November 2023 through June 2024 session notes and invoices produced by EDopt, and September 2023 through June 2024 time sheets produced by EDopt (Parent Exs. E-G).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  The parent argued that the CSE failed to develop an appropriate program for the student as the CSE had not convened since August 2019 (id. at p. 1).  The parent further contended that the district also failed to arrange for providers for the services it recommended, placing the burden on the parent to arrange services for the student (id. at p. 2).  The parent alleged that she was unable to procure a provider for the 2023-24 school year at district rates and "had no choice but to retain services of an agency" at an enhanced rate (id.).  The parent requested an order awarding funding for the student's services for the 2023-24 school year as set forth in the student's last IESP at enhanced rates (id. at p. 3).[4]

The district submitted a response, dated August 6, 2024, to the parent's due process complaint notice, in which the district indicated that  CSE convened to review the student's educational program on August 15, 2023 and in which the district also indicated it would pursue applicable defenses including a defense that the parent failed to send a timely written request for equitable services prior to June 1 of the preceding school year (Due Proc. Response).

B. Impartial Hearing Officer Decision

An impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on February 10, 2025 (see Tr. pp. 1-41).  In a decision, dated February 10, 2025, the IHO found that the district timely raised the affirmative defense that the parent failed to request dual enrollment services on or before the first day of June preceding the school year for which the request for services was made, both at the time of its disclosures, and during the merits hearing during its closing statement (IHO Decision at pp. 4, 5).  The IHO held that it "would be inequitable to require the [d]istrict to prove a negative, rather the absence of evidence to prove its case" (id. at p. 4).  Based on this, the IHO determined that the parent bore the burden to show that she had provided the district with notice, on or before June 1, that she was requesting special education services (id.).  The IHO pointed out that the parent testified that she requested such services from the district prior to June 1, 2023 (id. at p. 5).  However, the parent could not recall details of when she sent the notice, only that she mailed it sometime in June, or April, or May (id.).  The IHO noted that there is no documentary evidence that the parent sent the notice to the district on or before June 1 (id.).  Based on this, the IHO held that the parent failed to provide sufficient proof that she requested equitable services from the district prior to the June 1, 2023 deadline (id.).  The IHO denied the parent's request for relief based on the parent's failure to present sufficient evidence to show that she timely requested special education services (id.).

IV. Appeal for State-Level Review

The parent appeals.  The parent argues that the IHO erred in dismissing the case for the lack of a June 1 notice because the burden of production and persuasion should have been on the district, not the parent.  The parent contends that the district failed to meet its burden of proving that a timely June 1 letter was not sent to the district as it raised the issue as an affirmative defense, but presented no evidence to support its allegation.  Moreover, the parent asserts that the district's waived the affirmative defense by  because the September 2019 IESP did not have an end date for services; thereby suggesting the continuation of IESP services.  Finally, the parent argues that she testified to sending the notice prior to June 1, 2023.  Based on this, the parent requests that the IHO decision be reversed and funding for the student's SETSS be awarded at the contracted rate.[5]

The district submits an answer and cross-appeal.  Initially, the district answers, asserting that the IHO correctly dismissed the case for the parent's failure to prove that she provided timely notice to the district of her request for equitable services by June 1, 2023.  The district contends that it properly raised this defense, and the parent failed to provide any convincing evidence to rebut the defense.  The district asserts that the IHO was correct that the parent's testimony was unclear and not supported by the hearing record, and, to the extent that the IHO made a credibility determination regarding the parent's testimony, that determination is entitled to due deference.  Further, the district contends that the parent's claim of waiver is not supported as the IESP was from 2019 and cannot demonstrate waiver for the 2023-24 school year.  Should the SRO not uphold the IHO's dismissal, the district cross-appeals from the IHO's failure to make a determination regarding the appropriateness of the unilaterally obtained services and equitable considerations.  The district asserts that the services were not appropriate and that equitable considerations do not favor the parent's request for relief.

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]).[6]  "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.).[7]  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 – 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]).

Initially, the parent asserts that she was not required to submit a June 1 letter for the 2023-24 school year, the year for which she is requesting equitable services from the district in this proceeding, because the development of the September 2019 IESP without an end date of services constituted a waiver.  However, that argument is in direct contravention of the requirement set forth in Education Law § 3602-c, which states that a request for equitable services must be filed "on or before the first of June preceding the school year for which the request is made " (Educ. Law § 3602-c[2][a] [emphasis added]). The statute does not differentiate between students already identified and receiving services pursuant to an IESP during the prior school year and those who are not; however, the law does make exceptions for students first identified as students with disabilities after the June 1 deadline (Educ. Law § 3602-c[2][a]).  Accordingly, to satisfy the statutory notice requirement, parents must make the request each year for which they seek dual enrollment services and the parent's argument although framed as a claim of waiver is in conflict with the requirements set forth in Education Law § 3602.[8]

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]).

The school year at issue in this matter is the 2023-24 school year and therefore, the parent was required to request equitable services from the district by June 1, 2023.  Further, there is no dispute that the district timely raised the June 1 defense.[9]  Given that the district timely and adequately raised the June 1 defense,"[i]t was then incumbent on the parent to show that she made the request for dual enrollment services rather than on the district to prove that an event did not happen" (Application of a Student with a Disability, Appeal No. 24-404, citing Mejia v. Banks, 2024 WL 4350866, at *6 [S.D.N.Y. Sept. 30, 2024]).[10]

Turning to the available evidence, the parent's affidavit stated that "[p]rior to June 1 of 2023, [she] sent the [district] notice that [she] would be placing [the student] in a non public school" (Parent Ex. M ¶ 8).  Pertinently, the parent's affidavit testimony does not otherwise identify the contents of the notice that she allegedly sent and does not indicate that the parent requested equitable services from the district (see Parent Ex. M).

During the parent's cross-examination, the parent first testified at the hearing, on two occasions, that she requested services from the district before June 1 (Tr. p. 21).  However, when pressed for details, the parent responded that she knew that she filled out paperwork, she "mailed it back and [she] remember[ed] that it was in June" (id.).  She then testified that she could have filled out paperwork in June, but that she could have done so in April or May, but that she believed "[i]t had to be done before June" (Tr. p. 22).  The parent testified that no one helped her with the June 1 paperwork (id.).  Later, when asked by the IHO, the parent testified that she did not receive a confirmation from the district that it received the June 1 letter and that she mailed it to "[w]hatever the return mailing address was" (Tr. p. 26).

The IHO found that the parent's testimony was "unclear as to when exactly [the p]arent mailed the paperwork to the [d]istrict"; the IHO pointed out that the parent did not have any details of when she sent the paperwork to the district (IHO Decision at p. 5).  The IHO also pointed out that there was no documentary evidence to support the parent's contention that she provided notice to the district (id.).  Therefore, in weighing the inconsistencies in the parent's testimony and the lack of documentary evidence, the IHO determined that the parent failed to provide sufficient evidence to prove that she requested equitable services from the district for the student prior to June 1, 2023 for the 2023-24 school year (id.).  Rather than directly addressing the IHO's finding that the parent's testimony was inconsistent, leaving it unclear as to when any notice was sent to the district, the parent reasserts the portions of the parent's testimony tending to show that a notice was sent prior to June 1, while ignoring those portions which the IHO relied on as indicating that the parent's testimony was not sufficiently clear (see Req. for Rev. at 6).  As the parent has not addressed the IHO's basis for weighing the evidence, she has not presented an argument that would compel an alternate conclusion to the IHO's findings.  Overall, the hearing record lacks documentary evidence showing that a notice was sent and the parent's inability to recall specifics about the notice supports the IHO's conclusions.  As such, I decline to overturn the IHO's finding that the parent failed to provide the district with notice of her request for equitable services prior to June 1, 2023.

VII. Conclusion

I have considered the parties' remaining contentions and find they need not be addressed in light of the determinations herein.

Having found that the IHO properly dismissed the case, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.