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 cost of her daughter's private services delivered by Empowered Kids for Success (Empowered KFS) for the 2022-23 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

The student's educational history will not be recited in detail, as the hearing record is sparse in that regard.  At all relevant times, the student was parentally placed at a nonpublic school (Parent Exs. C at p. 11; D at p. 9).

A CSE convened on April 13, 2018, determined the student to be eligible for special education as a student with a learning disability, and developed an IESP for the student (Parent Ex. D at p. 1).[1]  The April 2018 CSE recommended that the student receive three periods per week of special education teacher support services (SETSS) in a group setting; one 30-minute session per week of individual counseling; and one 30-minute session per week of group counseling (id. at pp. 6-7).

The parent signed a contract, effective September 1, 2022, with Empowered KFS, a private educational agency, under which the agency would provide the student with three sessions per week of SETSS during the 2022-23 school year (Parent Ex. E).  Under the contract's terms, the parent would be responsible for paying any fees not funded by the district (id.).

A CSE convened on February 16, 2023, determined that the student remained eligible for special education as a student with a learning disability, and developed an IESP with a projected implementation date of March 2, 2023 (Parent Ex. C at p. 1).[2]  The February 2023 CSE recommended that the student receive four periods per week of SETSS in a group setting; one 30-minute session per week of individual counseling; and one 30-minute session per week of group counseling (id. at pp. 8-9).

During the 2022-23 school year, the student received three periods per week of SETSS from Empowered KFS, beginning on September 12, 2022 (Parent Ex. F ¶¶ 7-8; see Parent Ex. G at pp. 2-3).

A. Due Process Complaint Notice

In a due process complaint notice dated July 14, 2024, the parent, through a lay advocate, alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year (Parent Ex. A at pp. 1-2).[3]  Specifically, the parent alleged that the district failed to implement the services recommended in the student's IESP and, having no success in securing a provider at the district rate, she unilaterally secured a provider at an enhanced rate (id. at p. 2).  In her due process complaint notice, the parent "reserve[d] the right to challenge the appropriateness" of the recommended program and placement "including, but not limited to, the appropriateness of any: services, programs, classes, staffing ratios, performance levels, student participation, accommodations, objectives, and drafted annual goals" (id.).  As relief, the parent requested direct funding for the services recommended in the April 2018 IESP along with "[c]ompensatory or makeup sessions for any services the student was entitled to, and did not receive, including pendency services" (id.).

B. Motion to Dismiss and Impartial Hearing Officer Decision

On or about February 11, 2025, the district submitted a motion to dismiss the parent's due process complaint notice on the ground that the IHO lacked subject matter over IESP implementation claims (see IHO Ex. II at pp. 1-3).

On February 24, 2025, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) and concluded the same day (see Tr. pp. 1-73).  During the proceedings, the parent's attorney expressed opposition to the district's motion, and the IHO denied the motion on the record (see Tr. pp. 6-7).  The parent presented various exhibits, each of which the IHO admitted into evidence (see Tr. pp. 11-12, 44; Parent Exs. A-J).  The parent's exhibits included direct testimony by affidavit from an educational representative for Empowered KFS, as well as direct testimony by affirmation from the parent herself (see Tr. pp. 11-12; Parent Exs. F; I).  Both the educational representative and the parent appeared for cross-examination during the hearing (see Tr. pp. 15-54).  The district presented no witness testimony but offered several exhibits, each of which the IHO admitted into evidence (see Tr. pp. 7-9; Dist. Exs. 1-5).

In a decision dated February 25, 2025, the IHO reiterated that the IHO "ha[s] subject matter jurisdiction to hear the matter" and then addressed the district's June 1 affirmative defense (IHO Decision at pp. 5-8).  According to the IHO, the district properly raised the June 1 defense and, thus, the parent was required to provide evidence of the June 1 letter with proof that it was sent to the district (id. at p. 7).  Although the parent testified that she mailed the notice before June 1, 2022, the IHO found such testimony to be unreliable (id.).  The IHO reasoned that on cross-examination, the parent initially testified that she sent the letter before August 2022 but later stated that she mailed the letter before June 2022 (id.).  The IHO further reasoned that, despite testifying that she was '"on top of"' the student's case, the parent could not specify that the date on which she mailed the letter and stated that she did not keep a copy (id.).  Thus, according to the IHO, the hearing record lacked credible evidence that the parent provided a June 1 notice (id.).  Moreover, the IHO rejected the parent's argument that the district waived the June 1 requirement through its conduct (id. at p. 8).  According to the IHO, the district's creation of an IESP for the student on February 16, 2023 did not reflect a clear and unmistakable waiver of the June 1 requirement, given that the district provided no services to the student during the 2022-23 school year (id.).[4]

Accordingly, the IHO dismissed the parent's due process complaint notice, with prejudice, without addressing the appropriateness of the SETSS provided by Empowered KFS, equitable considerations, or the parent's request for compensatory services (IHO Decision at pp. 6, 9).[5]

IV. Appeal for State-Level Review

The parent appeals.  The parties' familiarity with the issues raised in the parent's request for review and the district's answer is presumed and, therefore, the allegations and arguments will not be recited here in detail.  Briefly, the parties dispute the following issues: whether the IHO abused her discretion by declining the parent's adjournment request; whether the IHO erred in determining that the student was not entitled to equitable services for the 2022-23 school year based on the parent's failure to provide a June 1 notice; whether the parent is entitled to compensatory SETSS to account for the recommended increase from three to four periods per week; whether the parent met her burden of proving the appropriateness of the services provided by Empowered KFS during the 2022-23 school year; and whether equitable considerations support the parent's request for an award of funding.

Both parties submit additional evidence, absent from the hearing record below, for admission and consideration on appeal.

Neither party has appealed the determination that the IHO had subject matter jurisdiction to adjudicate the parent's claim.  Accordingly, that determination has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

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

A. Additional Evidence

As an initial matter, I must determine whether the parties' additional documentary evidence will be accepted for admission and consideration on appeal.  Along with her request for review, the parent submits a purported SETSS authorization form, which, according to the parent, shows that the district had awareness or, at least, constructive notice of the parent's desire for the student to receive special education services for the 2022-23 school year and that the district took steps to implement such services, thus, establishing the district's waiver of the June 1 requirement.  The parent's counsel asserts that she was unable to timely submit the subject document because counsel was retained just days before the hearing.  The district objects to admission of the parent's additional evidence in its answer, arguing that, irrespective of any change in representation, the document was available to the parent at the time of the impartial hearing.  Along with its answer, the district submits a series of emails, exchanged between the parties and the IHO on February 19, 2025, which the district has identified as SRO Exhibit 1.  According to the district, the subject correspondence indicates that the parent's counsel was amenable to proceeding with the hearing, as scheduled, on February 24, 2025.[8]

Generally, documentary evidence not presented at an impartial hearing may be considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; Landsman v. Banks, 2024 WL 3605970, at *3 [S.D.N.Y. July 31, 2024] [finding a plaintiff's "inexplicable failure to submit this evidence during the IHO hearing barred her from taking another bite at the apple"]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).  "'The party seeking to supplement the record . . . must . . . explain why the [additional] evidence was not presented at the administrative level.'" (M.B. v. New York City Dep't of Educ., 2015 WL 6472824, at *2-*3 [S.D.N.Y. Oct. 27, 2015], quoting Genn v. New Haven Bd. of Educ., 2015 WL 1064766, at *4 [D. Conn. Mar. 11, 2015]; see also A.W. v. Bd. of Educ. of the Wallkill Cent. Sch. Dist., 2015 WL 1579186, at *2-*4 [N.D.N.Y. Apr. 9, 2015]).

I now turn to the parent's additional evidence.  Initially, I note that the parent, who had notice of the district's intention to raise the defense of the June 1 deadline more than five months prior to the hearing date, does not dispute that the subject document was available on the hearing date (see Parent Ex. B at pp. 1-2).[9]  Moreover, review of the hearing transcript reveals the following: acknowledgment from the parent's counsel of the parties' agreement to waive the five-day disclosure requirement; testimony from the parent that she received a SETSS authorization form from the district in August 2022; and argument from the parent's counsel that the parent received a SETSS authorization form from the district (Tr. pp. 5, 46, 48-49, 64).  Despite her belief that the parent received a SETSS authorization form, and despite awareness that late disclosures would be accepted, the parent's counsel did not offer the subject document for admission into evidence during the hearing; nor did the parent's counsel ask the IHO to hold the record open to receive the subject document at a later time (see Tr. pp. 5, 64, 72).  Pertinently, the hearing record shows that, following closing arguments, the parent's counsel stated, "[i]f the IHO allows, we would be happy to supplement the record with . . . additional reports or anything that the IHO feels appropriate in order to render [a] decision," reflecting awareness that the IHO was empowered to accept additional evidence after the hearing concluded (Tr. p. 72).  However, the parent did not submit the subject document to the IHO after the hearing date.

Based on the foregoing, I find that, irrespective of the parent's change in representation, the hearing record belies the parent's assertion that the document now submitted for admission on appeal could not have been offered for admission into evidence by the IHO.  I therefore decline to accept the parent's additional evidence for admission and consideration on appeal (see, e.g., Application of a Student with a Disability, Appeal No. 24-417 [declining to accept additional documentary evidence on appeal where the parents' attorney did not ask the IHO to admit the documents when they became available, despite awareness that the hearing record remained open]; Application of a Student with a Disability, Appeal No. 24-405 [declining to accept additional evidence on appeal where, although "the parent was advised of the district's June 1 affirmative defense well before . . . the hearing" and possessed "a letter to the district that could have resolved th[at] issue," the parent did not submit the letter "at . . . the impartial hearing, where it could have been introduced as evidence and subjected to cross-examination to establish its authenticity"]; cf. Application of a Student with a Disability, Appeal No. 24-415 [accepting additional evidence that was not available at the time of the hearing for admission on appeal]).

Turning to the district's additional evidence, review of the email correspondence submitted for admission on appeal indicates that, on February 19, 2025, the parent's counsel requested a "short adjournment" of the hearing, which had been calendared since October 2024, to allow more time to review the file and "make sure we submitted all docs[sic] needed" (SRO Ex. 1 at pp. 4-5).  The parent's counsel explained that her firm was "just retained" to take over the matter from the parent's lay advocate and that the previous representative may not have submitted any disclosures (id.).  The district's counsel expressed "no objections to a short adjournment," but the IHO stated "we can proceed with th[e] hearing" as scheduled (id. at pp. 1-2).  The IHO then inquired whether "the parties agree[d] to receiving late disclosures;" and the parent's counsel replied to the district's counsel as follows: "I am okay to appear on [February 24th].  Are you okay with the 5 day disclosure rule being waived" (id. at p. 1).

State regulation requires that, in addition to exhibits and the transcript of the proceedings, "all briefs, arguments or written requests for an order filed by the parties for consideration by the [IHO]," as well as "all written orders, rulings or decisions issued in the case including an order granting or denying a party's request for an order" are part of the hearing record (8 NYCRR 200.5[j][5][vi]).  Thus, as proposed SRO Exhibit 1 contains argument relied on by the IHO in deciding whether to grant an adjournment request, it does not constitute additional evidence presented for the first time on appeal, and will be considered herein, because its content falls within the categories required to be made part of the hearing record as per the regulation cited above.]

B. Conduct of the Impartial Hearing

The parties dispute whether the IHO abused her discretion by denying the above-described request by the parent's counsel to adjourn the impartial hearing.  The parent contends that the IHO's refusal to grant a short adjournment deprived the parent of due process by limiting her counsel's ability to review critical documents, consult with the client, and prepare a comprehensive case, resulting in the dismissal of the parent's due process complaint notice.  The parent argues that the adjournment request was reasonable, given that counsel had been retained less than five days before the hearing and required additional time to review the case file.  According to the district, the IHO's conduct, in proceeding with the hearing as scheduled, was appropriate and did not deny the parent due process.  The district argues that, while State regulation permits the IHO to grant an extension of time in certain circumstances, it does not require the IHO to do so.  The district further argues that the parent had ample time to prepare for the hearing, as the matter was pending for more than seven months and the parent was aware of the hearing date for approximately four months.  Finally, the district argues that the parent's counsel was amenable to proceeding with the hearing on February 24, 2025, as indicated in the above-described email chain, and that the parent raised no due process concerns during the hearing.

Unless specifically prohibited by regulations, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, with how they conduct an impartial hearing, in order that they may "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

Among other due process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]).  However, federal and State regulations provide that a party has the right to prohibit the introduction of evidence that has not been disclosed to that party at least five business days in advance of the impartial hearing (34 CFR 300.512[a][3]; 8 NYCRR 200.5[j][3][xii]).    Courts have not enforced absolute adherence to the five-day rule for disclosure, but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties' respective right to due process, and the effect upon the timely, efficient, and fair conduct of the proceeding (see New Milford Bd. of Educ. v. C.R., 431 Fed. App'x 157, 161 [3d Cir. June 14, 2011]; L.J. v. Audubon Bd. of Educ., 2008 WL 4276908, at *4-*5 [D.N.J. Sept. 10, 2008], aff'd, 373 Fed. App'x 294 [3d Cir. Apr. 9, 2010]; Pachl v. Sch. Bd. of Indep. Sch. Dist. No. 11, 2005 WL 428587, at *18 [D. Minn. Feb. 23, 2005]; Letter to Steinke, 18 IDELR 739 [OSEP 1992].

Review of SRO Exhibit 1, the content of which is described above, reveals that, in requesting an adjournment of the February 2025 hearing date, the parent's counsel was primarily concerned with ensuring the opportunity to present documentary evidence (see SRO Ex. at p. 4).  The IHO addressed counsel's concern by suggesting that the parties agree to waive the five-day disclosure rule; and the parties confirmed their agreement to receive late disclosures on the record (Tr. p. 5; SRO Ex. 1 at p. 1).[10]  Contrary to the parent's contention that her counsel lacked adequate time to prepare, thus, depriving her of due process, the hearing record shows that the parent's counsel introduced witness testimony by affidavit in lieu of direct examination; introduced documentary evidence; and elicited testimony from the parent upon redirect examination (see Tr. pp. 11-12, 44, 47-49; Parent Exs. A-J).  I further note that the parent had an advocate's assistance from the case's inception and notice of the hearing date nearly four months in advance (see Parent Ex. A at pp. 1, 3; SRO Ex. 1 at pp. 4; Extension Order at p. 1; Tr. pp. 44-45).  Thus, the hearing record before me reflects an appropriate balancing of the parent's right to prepare and present her case with the need to move the matter, which had been pending for over seven months, toward a timely conclusion (see Parent Ex. A at pp. 1, 4; Dell v. Bd. of Educ., Tp. High Sch. Dist. 113, 32 F.3d 1053, 1061 [7th Cir. 1994] [noting the objective of prompt resolution of disputes]).

The parent's request for review asserts, somewhat vaguely, that, because "the parent retained counsel just days before the hearing, counsel was unable to" previously submit the proposed additional evidence; however, as discussed above, the parent's counsel knew of the subject document's existence but did not attempt to offer it for admission before the IHO (see Tr. at pp. 46, 48 64, 72; Req. for Rev. at p. 6 n.3).  The request for review specifies no other way in which more preparation time would have changed the parent's case or the resulting decision (see Req. for Rev. at pp. 9-10).

Therefore, considering the IHO's broad discretion to control the hearing process, the IHO's refusal to adjourn the scheduled hearing date does not provide a basis for reversal (see, e.g., Application of a Student with a Disability, Appeal No. 23-288 [concluding the IHO did not abuse her discretion in declining to adjourn the impartial hearing where "[t]he parent had almost seven weeks between the prehearing conference . . . and the second impartial hearing date . . .  to prepare and disclose her documentary evidence"]; cf. Application of a Student with a Disability, Appeal No. 20-009 [finding that "[t]he IHO failed to provide both parties with a sufficient opportunity to present evidence[,] in accordance with their right to due process," where the IHO required the parent to deliver her testimony in person but refused to accommodate the parent's work schedule in scheduling the hearing]; Application of a Child with a Disability, Appeal No. 04-018 [finding that the parents' "due process rights were violated by the hearing officer's determination to proceed with the hearing despite [the] p[arents'] requests for an adjournment . . . for the purpose of securing and appearing with counsel"]).

C. June 1 Deadline

I now turn to the crux of the parties' dispute, whether the IHO erred in determining that the student was not entitled to equitable services for the 2022-23 school year based on the parent's failure to provide a June 1 notice.  The parent contends that the IHO improperly shifted the burden of proof to the parent to provide documentary evidence of her compliance with June 1 requirement, as the district bears the burden of proving that it did not receive the notice.  The parent further contends, in any event, that, although she did not retain a copy of the June 1 letter or proof of mailing, her credible testimony established her compliance with the June 1 requirement.[11]  As stated above, the parent contends, alternatively, that the district waived the June 1 requirement by, first, sending the parent a SETSS authorization form and, later, developing an IESP for the student in February 2023, conduct which demonstrates that the district had awareness or, at least, constructive notice of the parent's desire for the student to receive special education services for the 2022-23 school year and took steps to implement such services.[12]  The district contends that, "[o]nce the [district] asserts a June 1 defense, it is the [p]arent's burden 'to rebut the district's defense and produce the notice with proof that it was sent to the district"' (Answer at p. 4, quoting Application of a Student with a Disability, Appeal No. 24-220).  Thus, according to the district, it was not required to produce any evidence to establish that the notice was not received.  The district further contends that an SRO should afford deference to the IHO's credibility determination and reject the parent's contention that the district waived the June 1 requirement through its conduct.  The district argues that the development of an IESP, alone, does not constitute a clear and unmistakable waiver of the June 1 requirement; and, in the event an SRO considers the parent's additional evidence, the district argues that the document, which, according to the district, is not a true and correct copy of a SETSS authorization form and does not establish the date on which the document was sent to the parent, does not establish a clear and unmistakable waiver of the June 1 requirement.

I will first address whether the parent complied with the June 1 requirement.

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., 2011 WL 4375694, at *6, 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 parent does not dispute that the district properly raised the affirmative defense of the June 1 deadline (see Req. for Rev. at pp. 5-7).  Thus, contrary to the parent's contention, it was 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 (see Mejia v. Banks, 2024 WL 4350866, at *6 [S.D.N.Y. Sept. 30, 2024] [noting that "it [wa]s unclear how the school district could have proved . . . a negative"]).  In this case, the hearing record includes no documentary evidence of the parent's compliance with the June 1 deadline.[13]  Although the parent testified that she sent the requisite notice in May 2022 (Tr. pp. 45-46; Parent Ex. I at p. ¶ 6), the IHO found such testimony unreliable (IHO Decision at p. 7), and given the absence of documentary evidence to corroborate the parent's testimony, I defer to the IHO's credibility determination (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995] [holding that a hearing officer's credibility judgments are entitled to deference on appeal "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or . . . the record[,] read in it entirety[,] would compel a contrary conclusion"]; see also P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).  Therefore, I find no basis to overturn the IHO's finding that the parent failed to provide the district with the required written request for equitable services prior to June 1, 2022 (see, e.g., Application of a Student with a Disability, Appeal No. 25-028 [affirming the IHO's finding that the parent failed to comply with the June 1 requirement where, although the parent testified that she sent the requisite notice by email, she could not locate the email or recall pertinent details]; Application of a Student with a Disability, Appeal No. 24-599 [affirming the IHO's finding that the parent failed to comply with the June 1 requirement, although the parent testified that he sent the requisite notice, because the IHO found the parent's testimony unreliable and "the hearing record lack[ed] a compelling reason to disturb the IHO's credibility findings"]).

Next, I will address whether the district impliedly waived the June 1 affirmative defense.

A district may waive a procedural defense through its actions (see N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991] [stating that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct"]; see also Application of the Bd. of Educ., Appeal No. 18-088).  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.Y. Tele. Co., 930 F.2d at 1011).  While the delivery of services reflects a "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP would, without more, constitute a waiver.[14]  For example, to the extent a district was navigating two requirements in tension with one another, i.e., to conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a],  4402[1][b][2]; 8 NYCRR 200.4[f]) versus awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]), the occurrence of the meeting might not clearly or unmistakably reflect the district's waiver of the June 1 requirement.

In this case, it is undisputed that the district provided no services to the student during the 2022-23 school year.  The district created an IESP for the student in February 2023; but the timing of the February 2023 CSE meeting, months into the school year, and the preceding notations in the district's SESIS log, suggests an effort by the district to comply with its three-year reevaluation requirement, not a clear and unmistakable waiver of the June 1 requirement that arose eight months earlier (Parent Ex. C at p. 1; Dist. Ex. 2).[15]  Although the parent testified that she received a SETSS authorization form from the district in August 2022 (Tr. pp. 46, 48-49), an occurrence which could, theoretically, indicate waiver of the June 1 requirement (see Application of a Student with a Disability, Appeal No. 24-392 [finding that the district waived the June 1 deadline by completing and sending a form authorizing the parent "to obtain independent SETSS for parentally placed students"]), I find the parent's testimony unreliable in that regard, given her inconsistent statements and inability to recall pertinent facts (see Tr. pp. 44-50).[16]  Accordingly, the evidence in hearing record does not support a finding that the district impliedly waived the June 1 defense through its conduct (see, e.g., Application of a Student with a Disability, Appeal No. 24-404 [finding that the district's creation of an IESP for the student, months into the school year, did not constitute an implied waiver of the June 1 defense]; cf. Application of the Bd. of Educ., Appeal No. 18-088 [finding that the district impliedly waived the June 1 defense where the district created an IESP for the student and began providing services at the student's nonpublic school after the June 1 deadline]).[17]

Based on the foregoing, I find that the district was not obligated to provide the student with equitable services for the duration of the 2022-23 school year.

VII. Conclusion

As explained above, the hearing record before me, inclusive of SRO Exhibit 1, provides no reason to disturb the IHO's decision, which dismissed the parent's due process complaint notice due to insufficient evidence that the parent submitted a June 1 notice.

I have considered the parties' remaining contentions, including those regarding compensatory education, and find it is unnecessary to address them in light of my determinations herein.

THE APPEAL IS DISMISSED.