I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from the decision of an impartial hearing officer (IHO) which determined the parent's claims related to the 2024-25 school year were not ripe for adjudication.  The appeal must be sustained in part, and the matter remanded to the IHO for further proceedings.

II. Overview—Administrative Procedures

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

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

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

III. Facts and Procedural History

Given the limited nature of the appeal and the procedural posture of the matter—namely that it was dismissed without prejudice prior to the introduction of evidence—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence.  Accordingly, the description of the facts and history of this matter is limited to the procedural history, including the parent's due process complaint notice and the IHO's dismissal of the due process complaint notice without prejudice.

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Due Process Compl. Not. at p. 1).[1]  The parent asserted that the district failed to provide the student with a procedurally valid and substantively appropriate IESP for the 2024-25 school year; failed to properly conduct updated evaluations; failed to consider the full continuum of services; failed to implement the student's recommended services; and failed to provide the parent with a procedural safeguards notice (id. at pp. 1, 4).

According to the parent, a CSE convened on June 16, 2022, found the student eligible for special education services, and developed an IESP that recommended that the student receive five periods per week of special education teacher support services (SETSS), two 30-minute sessions per week of speech-language therapy, three 30-minute sessions per week of occupational therapy (OT), and two 30-minute sessions per week of counseling services (Due Process Compl. Not. at p. 3).[2]  The parent also stated that the June 2022 CSE recommended that the student have a full-time paraprofessional (id.).

The parent disagreed with the CSE's recommendation of five periods per week of SETSS and challenged the appropriateness of the recommendation in a due process complaint notice concerning the 2023-24 school year (Due Process Compl. Not. at p. 3).  According to the parent, the IHO who presided over an impartial hearing addressing her claims related to the 2023-24 school year, found in her favor and awarded funding for 10 periods per week of SETSS, along with the student's related services and paraprofessional (id.).

According to the parent, a CSE convened in March 2024 and continued to find the student eligible for special education services (Due Process Compl. Not. at p. 3).  The parent further asserted that the March 2024 CSE developed an IESP for the student for the 2024-25 school year and continued to recommend five periods per week of SETSS (id.).  The parent alleged that the student's recommendation for paraprofessional support was "terminated" as of June 30, 2024, despite the CSE being "aware that the student c[ould not] function in a classroom without a paraprofessional's support" (id. at pp. 3-4).  The parent also argued that the district failed to assign providers to implement the services recommended in the IESP (id. at p. 4).

The parent invoked the student's right to pendency and asserted that the student's pendency services were based on an unappealed February 29, 2024 IHO decision and a June 16, 2022 IESP that "mandat[ed]" 10 periods per week of SETSS, two 30-minute sessions per week of counseling services, three 30-minute sessions per week of OT, two 30-minute sessions per week of speech-language therapy, and a full-time, behavior support paraprofessional (Due Process Compl. Not. at pp. 4-5).  As relief, the parent sought a finding that the district denied the student a FAPE for the 2024-25 school year; district funding for 10 hours per week of SETSS, three 30-minute sessions per week of OT, two 30-minute sessions per week of speech-language therapy, two 30-minute sessions per week of counseling services, and a full-time paraprofessional all to be delivered by the parent's chosen providers at their enhanced rates (id. at p. 5).  In addition, the parent requested "a bank of compensatory services to make up for any necessary services missed during the 24-25 school year for the failure to find a provider or for the failure to provide the student with a FAPE" (id.).

An IHO with the Office of Administrative Trials and Hearings (OATH) was appointed to preside over the matter (IHO Decision at p. 1).  In an order of dismissal dated March 5, 2025, the IHO stated that "[a] hearing on the merits was scheduled for [February 20, 2025]," however, "[b]efore the hearing commenced, [the IHO] determined that the [s]tudent had an IESP for the ten-month school year" (id.).  The IHO then determined that "the case filed in July of 2024 was unripe when filed" (id.).  The IHO then noted that both parties had been given the opportunity to place objections on the record (id.).[3]  For those reasons and "the [p]arent's failure to further pursue th[e] matter," the IHO dismissed the parent's claims "without prejudice to any right to renew" (id.).

IV. Appeal for State-Level Review

The parent appeals and alleges that the IHO erred in dismissing her due process complaint notice without prejudice on the ground that her claims were not ripe.  As relief, the parent requests reversal of the IHO's order of dismissal and remand for an impartial hearing on the merits of the parent's claims.  In addition, the parent requests that the SRO compel the IHO to issue a pendency order immediately on remand.

In an answer, the district asserts that the IHO correctly determined that the parent's claims were not ripe because the parent's due process complaint notice was filed before the start of the 10-month school year.  Regarding the parent's request for pendency, the district argues that the parent did not request a pendency hearing prior to dismissal.  The district further contends that the IHO's order of dismissal should be affirmed.

In a reply to the district's answer, the parent argues that she was not afforded the opportunity to be heard on the issue of pendency before the case was dismissed by the IHO.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5]  Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

According to the IHO's order of dismissal, an impartial hearing date was scheduled for February 20, 2025 (IHO Decision at p. 1).  Prior to the commencement of the impartial hearing, the IHO determined that the parent's claims were not ripe at the time the due process complaint notice was filed and subsequently dismissed the parent's claims without prejudice and without holding an impartial hearing (id.).

The parent argues that the claims raised in her July 15, 2024 due process complaint notice were ripe at the time of filing.  In addition, the parent argues that even if the claims were not ripe prior to the start of the 10-month school year, they were ripe as of the scheduled impartial hearing date on February 20, 2025.

The district contends that the IHO correctly dismissed the parent's claims pertaining to the 10-month 2024-25 school year, as those claims were unripe for adjudication.  At the time of the filing of the due process complaint notice, the 10-month school year had not yet started.  Thus, according to the district, it could not have violated the student's rights with respect to the March 2024 IESP because there was still time for changes to occur before the March 2024 IESP became the student's operative educational program.

For the reasons that follow, the IHO's order of dismissal must be vacated and the matter remanded for an impartial hearing on the merits of the parent's claims.

"An issue is ripe for judicial resolution only if it presents 'a real, substantial controversy, not a mere hypothetical question"' (Longway v. Jefferson Cnty. Bd. of Sup'rs, 24 F.3d 397, 400 [2d Cir. 1994], quoting AMSAT Cable Ltd. v. Cablevision of Conn., Ltd. P'ship, 6 F.3d 867, 872 [2d Cir.1993] [internal quotations and citations omitted]).  In other words, "a case . . . lack[s] ripeness when it involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all" (AMSAT Cable Ltd., 6 F.3d at 872 [internal quotation marks omitted]).

Review of the July 15, 2024 due process complaint notice reflects that while the parent asserted that the district failed to implement the recommendations in the March 2024 IESP, the parent also raised a number of challenges to the design of the March 2024 IESP (Due Process Compl. Not. at p. 1).  Specifically, the parent disagreed with the recommendation for five periods per week of SETSS and with the failure to recommend the support services of a paraprofessional for the 2024-25 school year (id. at pp. 3-4).  Contrary to the district's arguments and the IHO's ground for dismissal, the parent's claims regarding the substantive appropriateness of the March 2024 IESP were ripe upon creation of said IESP (see Application of a Student with a Disability, Appeal No. 24-033 [reversing the IHO's determination that the parent's claims pertaining to the 2023-24 school year were not ripe for adjudication where the parent alleged that the May 2023 CSE failed to recommend appropriate special transportation supports and accommodations]).

When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).  Here, the matter will be remanded to the IHO to address the merits of the parent's claims challenging the procedural or substantive appropriateness of the March 2024 IESP.  The IHO should be given the opportunity in the first instance to fully weigh the evidence and consider the parent's claims pertaining to the March 2024 IESP.  Therefore, I will remand this matter to the IHO for a determination as to whether the district met its burden of proving that it offered the student appropriate equitable services for the 10-month 2024-25 school.

With respect to the parent's implementation claims, the parent correctly argued that due to the passage of time, the issue was no longer "'a mere hypothetical question'" as of the scheduled date of the impartial hearing (Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 [2d Cir. 2013], quoting AMSAT Cable Ltd., 6 F.3d at 872).  Therefore, I find that the parent's claims concerning the 10-month 2024-25 school year became ripe for adjudication as of the first day of school of the 10-month 2024-25 school year.

VII. Conclusion

Having determined that the IHO erred in dismissing the parent's due process complaint notice on the ground of ripeness, the matter is remanded to the IHO for an evidentiary proceeding to determine the student's pendency, unless the parties otherwise agree, and to determine whether the district offered the student appropriate dual enrollment services under Education Law § 3602-c for the relevant timeframe.  If the IHO finds that the district failed to offer and/or provide the student appropriate dual enrollment services, then the IHO must determine if the student's unilaterally obtained services were appropriate and, if so, whether equitable considerations favor the parent.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's order of dismissal dated March 5, 2025 is vacated; and

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

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