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 son's private services delivered by Strivright 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).  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.

On September 20, 2023, a CSE convened for a meeting, determined the student to be eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of October 6, 2023 (Dist. Ex. 3 at p. 1).[1]  The September 2023 CSE recommended that the student receive two 30-minute sessions per week of speech-language therapy in a group setting, and two 30-minute sessions per week of group counseling (id. at pp. 7-8).

In a prior written notice dated September 22, 2023, the district indicated that the CSE developed an IESP for the student because the parent indicated that she would be placing the student in a nonpublic school, at her expense, and was requesting equitable services from the district (IHO Ex I at pp. 3-4).

On November 22, 2023, the parent signed a contract with Strivright, a private educational agency, under which Strivright would provide the student with educational services for the 2023-24 school year (Parent Ex. C at pp. 1-2).[2]  Under the contract's terms, the parent would be responsible for paying any fees not funded by the district (id. at p. 1).

During the 2022-23 school year, the student received two 30-minute sessions per week of individual speech-language therapy from Strivright (Parent Exs. E at p. 1; F ¶¶ 12-13).[3]

A. Due Process Complaint Notice

In a due process complaint notice dated July 13, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by its failure to implement the September 2023 IESP (Parent Ex. A at pp. 1-2).[4]  The parent further alleged that she was unable to locate providers on her own accord and, without supports, the parental mainstream placement was untenable (id. at p. 2).  The parent invoked pendency as the services recommended in the September 2023 IESP (id.).  As relief, the parent requested funding of the cost of unilaterally-obtained services for the 2023-24 school year, "at the provider's contracted rate," along with a bank of compensatory services "for the entire 2023-24 – or the parts [there]of which were not serviced," "funded at the prospective provider's contracted rate" (id. at p. 3).

B. Motion to Dismiss, Impartial Hearing, and Impartial Hearing Officer Decision

The district filed a motion to dismiss dated September 5, 2024, alleging that the IHO lacked subject matter jurisdiction to adjudicate the parent's claim and, further, that the parent's claim was not ripe for adjudication (Mot. to Dismiss at pp. 1, 6).  The district filed a second motion to dismiss dated October 28, 2024, reiterating its position that the IHO lacked subject matter jurisdiction to adjudicate the parent's claim and further alleging that the parent failed to comply with the June 1 requirement of New York Education Law § 3602-c (IHO Ex. II at pp. 1, 4, 6).

On January 6, 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. 1-22).  During the proceedings, the district withdrew its motion to dismiss the parent's claim as unripe; the IHO rendered a determination, on the record, that IHOs have jurisdiction over IESP implementation claims, thus, denying the district's motion to dismiss on that ground; the parent's counsel expressed opposition to dismissal based on noncompliance with the June 1 requirement; and the IHO reserved decision on the issue of the June 1 requirement (see Tr. pp. 3-6).

The parent offered several exhibits, all but one of which the IHO admitted into evidence (see Tr. pp. 8-9; Parent Exs. A; C-F).[5]  The parent's exhibits included testimony by affidavit from a supervisor at Strivright, who appeared for cross-examination during the hearing (see Tr. pp. 8-13; Parent Ex. F).[6]  The district offered three exhibits, two of which the IHO admitted into evidence, but presented no testimony (see Tr. pp. 5-8).[7]

In a decision dated February 28, 2025, the IHO found that the student was not entitled to receive equitable services for the 2023-24 school year because the hearing record included no evidence that the parent submitted a June 1 notice to the district (IHO decision at pp. 4-5).  The IHO found that the district properly raised the June 1 defense, noting that the district expressed its intent to assert the June 1 defense in its due process response and then asserted said defense in its motion to dismiss and its closing argument (see id. at p. 4 & n.4).  The IHO rejected the parent's argument that the district waived the June 1 defense by developing the September 2023 IESP (see id. at p. 4).  Instead, the IHO found that the hearing record did not reflect a clear and unmistakable waiver of the June 1 defense because, although the district created an IESP after the June 1 deadline, the district failed to implement any of the services recommended therein (see id.).

Accordingly, the IHO dismissed the parent's claim, with prejudice, without addressing whether Strivright provided appropriate services or whether equitable considerations supported the parent's request for relief (see IHO Decision at pp. 4-5).

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 parent contends that the IHO erred in determining that the student was ineligible for equitable services for the 2023-24 school year based on the parent's failure to provide a June 1 notice.  According to the parent, the district was required to raise the June 1 defense in a timely due process response but failed to do so.  The parent further contends that the district was required to prove nonreceipt of a June 1 notice but presented no evidence in that regard.  Finally, the parent contends that the district waived the June 1 defense through its development of the September 2023 IESP and subsequent issuance of a prior written notice to the parent.  The district contends that it properly raised the June 1 defense and, thus, the parent was required to successfully rebut the June 1 defense to avoid dismissal.  The district further contends that nothing in the hearing record establishes the parent's compliance with the June 1 requirement or the district's clear and unmistakable waiver of the June 1 defense.

The parent requests reversal of the IHO's decision and an order directing the district to fund the cost of the speech-language therapy provided to the student by Strivright during the 2023-24 school year.  The district contends that the IHO's dismissal of the parent's due process complaint notice should be affirmed but alternatively argues that, if an SRO finds that the district waived the June 1 defense, the matter should be remanded to the IHO for determinations regarding the appropriateness of Strivright's services and equitable considerations.  The district contends that, in so remanding, the SRO should order that any relief awarded be limited to the cost of the services actually provided by Strivright beginning on September 22, 2023, the date of the aforementioned prior written notice.

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]).[8]  "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.).[9]  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. Education Law § 3602-c and June 1 Deadline

As stated above, the parties dispute whether noncompliance with the June 1 requirement of New York Education Law § 3602-c bars the parent's request for funding of the cost of unilaterally-obtained services for the 2023-24 school year.  The parent does not assert that she complied with the above-described June 1 requirement but, instead, contends that the district failed to properly raise the June 1 defense at the outset; that the district bears the burden of proving the parent's noncompliance with the June 1 requirement; and that the district waived the June 1 defense through its conduct.

New York Education Law § 3602-c, 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]).[10]

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 *6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level"]; 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]).

Contrary to the parent's argument on appeal, the district was not required to raise the June 1 defense in a due process response (see R.B., 2011 WL 4375694, at *4-*6 [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]; but, in any event, the district did express its intent to assert the June 1 defense in a due process response dated August 7, 2024 (IHO Ex. I at pp. 1-2).[11]  As noted in the IHO's decision, the district then asserted said defense in a prehearing motion to dismiss and in its closing argument (see Tr. pp. 4-5, 13, 17; IHO Ex. II at pp. 1-2, 4, 6; IHO Decision at p. 4).  Given that the district timely and adequately raised the June 1 defense (see, e.g., Application of a Student with a Disability, Appeal No. 23-162 [reversing the IHO's determination that the district procedurally waived the June 1 defense by raising said defense for the first time in its closing argument]; cf. Application of a Student with a Disability, Appeal No.23-217 [finding that the district procedurally waived the June 1 defense by failing to raise said defense within the 10-day deadline established in the IHO's prehearing conference summary and order]),"[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]).[12]  The parent's failure to present evidence of a written request for dual enrollment services is undisputed (see Tr. pp. 17, 19-20; IHO Decision at p. 4; Req. for Rev. at pp. 1-9; Answer at pp. 6-7).  Thus, the student's entitlement to equitable services for the 2023-24 school year turns on 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, without more, constitutes a waiver.  This is due, in part, to the district's need to navigate requirements in tension with one another.  On the one hand, State guidance states that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), and, therefore, arguably requires a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services.  In addition, a CSE must conduct an annual review to engage in educational planning for students found eligible for special education services under IDEA (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]).  Under some circumstances, a district may be required to develop an IESP for the student rather than await a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]).  Therefore, the occurrence of a CSE meeting and the development of an educational planning document, such as an IESP, without more does not clearly or unmistakably reflect the district's waiver of the June 1 requirement where the district is otherwise called upon to convene and engage in special education planning for the student.

Despite the defense being properly raised, the June 1 affirmative defense did not bar the requested relief in this matter.  Review of the hearing record shows that, on September 22, 2023, the district sent the parent prior written notice of the September 2023 CSE recommendations (IHO Ex. I at pp. 3-7).  Within that notice, the district explicitly stated that the CSE "has developed an IESP because [the parent] h[as] indicated that [she] will be placing [the student] in a private school at [her] expense and [was] requesting equitable services" (id. at p. 4 [emphasis added]).  Thus, while convening the September 2023 CSE to create an IESP for the student may not, on its own, have constituted a waiver of the June 1 requirement, the language contained in the district's September 2023 prior written notice indicates that the CSE convened and developed an IESP for implementation during the 2023-24 school year because the parent requested equitable services and not for an independent reason related to the district's obligation to develop an IESP or IEP for the student (see IHO Ex. I at pp. 3-4; Dist Ex. 3).  Furthermore, the September 2023 prior written notice conveyed to the parent that the student "will receive" equitable services, without qualification that such receipt would occur only if the district had received a timely written request for services (see IHO Ex. I at pp. 3-4).

The district argues that the prior written notice contained standard form language and, therefore, does not constitute a waiver; but State and federal regulations do not dictate the type of language that the district chose to include in its notice (see 34 CFR 300.503[b]; 8 NYCRR 200.5[a][3]). Thus, the district's actions in convening the September 2023 CSE and sending the prior written notice described above reflect either a concession that the district received a written request for dual enrollment services or a waiver of that requirement.  Accordingly, the evidence in the hearing record does not support the IHO's determination that the student was ineligible for equitable services for the 2023-24 school year based on the district's affirmative defense that the parent failed to submit a timely written request for services (see Application of a Student with a Disability, Appeal No. 25-067 [reversing the IHO's determination that the student was ineligible for equitable services based on the June 1 defense where the language contained in the district's prior written notice to the parent indicated "that the district convened the CSE in response to the parent's request for dual enrollment services and, further, that it intended to arrange for delivery of the services recommended in the IESP"]; see also Application of a Student with a Disability, Appeal No. 24-399).

B. Remand to IHO

Having found that the student was entitled to equitable services for the 2023-24 school year, the merits of the parent's claim and request for relief remain to be addressed.

The district's failure to implement the September 2023 IESP is undisputed (see Tr. pp. 17-18, IHO Decision at p. 7; Answer at pp. 6-7).  Accordingly, the district failed to provide the student with a FAPE on an equitable basis from October 6, 2023, the date on which the September 2023 IESP was to be implemented, through the end of the 2023-24 school year.[13]  However, the IHO denied relief, based on the June 1 defense, without addressing whether the unilaterally-obtained services were appropriate or whether equitable considerations would have warranted a denial or reduction of relief.  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]).  As the district has requested in the alternative, the matter is remanded to the IHO to address, in the first instance, whether the services delivered to the student by Strivright during the 2023-24 school year were, under the totality of the circumstances, specially designed to address the student's unique special education needs; and whether equitable considerations support an award of funding of the cost of such private services.  I leave the determination of whether any additional evidence is required to complete the record to the IHO's sound discretion on remand.

VII. Conclusion

In summary, the evidence in the hearing record does not support the IHO's finding that the parent's request for relief was foreclosed by lack of evidence of a timely written request from the parent for dual enrollment services.  As the IHO did not address the appropriateness of the parent's unilaterally-obtained services or equitable considerations, the matter is remanded to the IHO for determinations on those issues.

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated February 28, 205 is modified by reversing that portion which found that the student was not entitled to dual enrollment services from the district for the 2023-24 school year due to the parent's failure to submit a written request for such services;

IT IS FURTHER ORDERED that the district failed to provide the student with a FAPE on an equitable basis from October 6, 2023, the date on which the September 2023 IESP was to be implemented, through the end of the 2023-24 school year; and

IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the services delivered to the student by Strivright from October 6, 2023 through the end of the 2023-24 school year were appropriate for the student; and, if necessary, whether equitable considerations support an award of funding of the cost of such private services.