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 to be reimbursed for her son's tuition at the Big N Little Tiferet Torah Program (Tiferet Torah) for the 2023-24 school year.  The appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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]).  In addition, 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 (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 relating to IESPs, 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 of the IDEA 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 attended a general education class in a religious nonpublic school from kindergarten through eighth grade (2022-23 school year) and received special education through IESPs (Tr. pp. 53, 56, 59; Parent Ex. H at p. 1).

A CSE convened on June 6, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the student with a projected implementation date of June 12, 2023 (Parent Ex. B at p. 1).[1]  The June 2023 IESP highlighted the student's academic progress, noting improvements in reading and language, with decoding and fluency described as "on point," though reading comprehension remained a challenge (id. at pp. 1, 3).  The student benefited from independent reading and more challenging literature to enhance vocabulary and sentence structure (id.).  In writing, progress was noted with one-on-one support, and the student effectively used outlines and identified main ideas (id. at pp. 1-2).  The student's math skills were reported to be below grade level, particularly in word problems and geometric concepts, requiring teacher support (id. at p. 2).  The IESP reflected that the student had made significant progress in speech-language therapy, with recommendations for discharge, as the student showed improved expressive language and reading comprehension (id.).  Socially, the student was described as outgoing and well-liked, with no concerns reported (id. at p. 3).  The June 2023 IESP noted that the student was parentally placed in a nonpublic school and the CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS) (id. at pp. 4, 6).  Through the June 2023 IESP, the CSE discharged the student from speech-language therapy services with the agreement of the parent (id. at pp. 2, 4).

On June 13, 2023, the district sent the parent a prior notice package that reflected the district's understanding that the parent would be placing the student in a nonpublic school at her own expense and seeking equitable services from the district (IHO Ex. III at pp. 1-3).

On August 31, 2023, the parent entered a contract with Tiferet Torah, a high school for students with "language and behavioral challenges," for the student's attendance for the 2023-24 school year at a cost of $120,000 (Parent Ex. C at pp. 1, 3, 4; see Tr. pp. 20, 30).[2]

Tiferet Torah completed several of its own assessments of the student, starting with a functional behavioral assessment (FBA) on August 25, 2023 (Parent Ex. G at pp. 2-7), which informed a behavioral intervention plan (BIP), dated September 1, 2023 (id. at pp. 9-12).  On September 7, 2023, the student underwent a psychoeducational evaluation (Parent Ex. H at p. 1).  The certified school psychologist and licensed behavior analyst who evaluated the student recommended that the student would "benefit from a special education setting in 12:1+2," in addition to a BIP to address his social and emotional needs (id. at p. 7).  On September 8, 2023, Tiferet Torah completed a treatment plan for the student (Parent Ex. G at pp. 13-18).

The hearing record includes a letter dated October 16, 2023, bearing the typed name of the parent in place of a written signature and referencing the parent's attorney as being authorized to proceed on the parent's behalf (Parent Ex. I at pp. 1-2).  In the letter, the parent requested that the district reevaluate the student and reconvene the CSE to develop an IEP placing the student "in a full-time special education classroom for the 2023-2024 school year" as she did not feel the student's academic, social, and behavioral needs could be met in a general education classroom (id.).  The letter indicated that, "if these issues [we]re not timely addressed," the parent intended to unilaterally place the student in a private special education program for the 2023-24 school year and would commence proceedings to seek tuition funding and/or reimbursement from the district (id. at p. 2).  In a second letter, dated December 19, 2023 and identified in boldface type as a "TEN DAY NOTICE," the parent reiterated her requests and expressing her concern that the district had not yet acted on her previous notice (Parent Ex. J at pp. 1-2).

Evidence in the hearing record suggests that the student attended Tiferet Torah for the 2023-24 school year from September 1, 2023, through June 24, 2024 (see generally Parent Exs. F; G at pp. 19-28).[3]

A. Due Process Complaint Notice

In a due process complaint notice dated January 10, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to develop an IEP and offer the student a public-school placement (Parent Ex. A at p. 2).  The parent alleges that by failing "to provide an evaluation, timely and appropriate IEP, and placement for the [s]tudent for the 2023-24 school year," the district "forced the [p]arent to privately place the [s]tudent" (id.).

By way of relief, the parent requested an award of direct funding and/or reimbursement for the full cost of tuition at Tiferet Torah for the 2023-24 school year (Parent Ex. A at p. 2).

B. Impartial Hearing Officer Decision

After a prehearing conference on November 7, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 7, 2025 and concluded on the same day (see Tr. pp. 1-74).  In a decision dated March 6, 2025, the IHO found that the district offered the student a FAPE for the 2023-24 school year, that Tiferet Torah did not meet the student's unique needs and was therefore an inappropriate unilateral placement, that equitable considerations did not weigh in favor of the parent's requested relief, and that the complaint should be dismissed for lack of ripeness (IHO Decision at pp. 9-10, 12).

On the issue of whether the district offered the student a FAPE for the 2023-24 school year, the IHO acknowledged the district's concession on the issue of its offer of a FAPE to the student, but found that the evidence in the hearing record did not support a finding that the district denied the student a FAPE on the grounds alleged by the parent in the due process complaint notice (IHO Decision at p. 8; see Tr. p. 14).  For example, the IHO found that the parent had not objected to the June 2023 CSE's removal of speech-language therapy services from the student's IESP (IHO Decision at p. 8).  The IHO further noted that the district's 60 school days to reevaluate the student, as triggered no earlier than the date of the parent's October 16, 2023 letter, had not yet elapsed as of the date of the parent's due process complaint notice on January 10, 2024 (id. at pp. 8-9).  Finally, the IHO questioned whether the parent had actually sent the October 16, 2023, and December 19, 2023 letters at all, having received scant proof that the notices were ever sent or delivered (id. at p. 9).[4]  The IHO also opined that, even if the letters had been sent, the student had been attending the unilateral placement for approximately six weeks before the parent's request for the district to reevaluate the student, reflecting that the "[p]arent was not seeking a public school placement prior to the start of [the school year]" (id.).

Although the IHO did not find a denial of a FAPE on the grounds alleged by the parent, the IHO went on to consider the appropriateness of the unilateral placement and equitable considerations (see IHO Decision at pp. 9-12).  Regarding the appropriateness of the unilateral placement, the IHO found that Tiferet Torah identified that the student exhibited needs that had not previously been areas of concern, and that the parent did not sufficiently address these discrepancies in her case (id. at pp. 9-11).  Turning to equitable considerations, the IHO found that the parent's behavior throughout the CSE process as well as the impartial hearing process would have warranted a denial of the relief sought (id. at pp. 11-12).  Specifically, the IHO found that the parent's failure to express any concerns at the June 2023 CSE meeting demonstrated that she was uncooperative with the process (id. at p. 11).  Further, the IHO noted the unexplained discrepancies in the statements of the student's needs between the June 2023 IESP and Tiferet Torah's evaluations raised questions that the parent did not address in her evidence (id.).  Finally, the IHO found that the timing of the October 16, 2023 notice and January 10, 2024 due process complaint indicated that the parent was not acting in good faith to communicate with the district (id. at p. 12).

In conclusion, the IHO noted that, although the district failed to request that the case be dismissed for lack of ripeness, she was nevertheless going to dismiss the parent's due process complaint on that ground (IHO Decision at p. 12).  The IHO reasoned that, because the district's 60 school days to reevaluate the student and prepare an IEP had not yet elapsed when the due process complaint was filed, the allegations in the complaint were not yet ripe (id.).  To the extent the allegations could have become ripe while the matter was pending, the IHO noted that the parent's counsel "rejected the IHO's inquiry into these matters" during the impartial hearing (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding that the district offered the student a FAPE for the 2023-24 school year, that the parent failed to demonstrate that Tiferet Torah was an appropriate unilateral placement, and that the equitable considerations would have warranted denial of relief.  The parent argues that the IHO should have credited the district's concession and asserts that the district failed to present evidence to demonstrate that the June 2023 IESP was appropriate or that the district implemented the IESP, responded to the parent's notices, or provided the student "a placement."  Regarding the unilateral placement, the parent contends that she presented sufficient evidence, including testimony from the school supervisor of Tiferet Torah and documentation regarding the program delivered and the student's progress and that the IHO erred in relying on one score to invalidate the psychoeducational evaluation of the student.  Finally, the parent contests the IHO's finding that she was uncooperative with the CSE process, arguing that the parent cooperated with the CSE and sent notices to the district to which she did not receive any response.  For relief, the parent seeks findings that the district denied the student a FAPE for the 2023-24 school year, that Tiferet Torah was an appropriate unilateral placement, that equitable considerations favor the parent's requested relief, and that the district should be required to fund the cost of Tiferet Torah for the 2023-24 school year in the amount of $115,000.[5]

In an answer, the district argues that the IHO's findings regarding ripeness, the appropriateness of the unilateral placement, and the balancing of equitable considerations should all be affirmed.[6]  However, the district declines to defend the portion of the IHO's decision finding that the district had offered the student a FAPE for the 2023-24 school year given its concession at the impartial hearing.  Additionally, the district claims that the parent's request for review should be rejected as it exceeds the page limitations set by State regulation, fails to include citations to the hearing record, and is improperly verified.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[7]

With respect to students who are enrolled by their parents in nonpublic schools, the IDEA confers no individual entitlement to special education or related services (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.

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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., 694 F.3d at 184-85).

VI. Discussion

Initially, it is first necessary to review the parent's request for review to determine whether it is in compliance with State regulation and to consider what issues are properly before me on appeal.

State regulation provides that an appeal to the Office of State Review "shall clearly specify the reasons for challenging the [IHO's] decision, identify the findings, conclusions, and orders to which exceptions are taken, or the failure or refusal to make a finding, and shall indicate what relief should be granted by the [SRO] to the petitioner" (8 NYCRR 279.4[a]).  Further, the request for review "must conform to the form requirements in section 279.8 of this Part" (8 NYCRR 279.4[a]).  Section 279.8 requires that a request for review set forth "a clear and concise statement of the issues presented for review and the grounds for reversal or modification to be advanced, with each issue numbered and set forth separately, and identifying the precise rulings, failures to rule, or refusals to rule presented for review;" as well as "citations to the record on appeal, and identification of the relevant page number(s) in the hearing decision, hearing transcript, exhibit number or letter and, if the exhibit consists of multiple pages, the exhibit page number" (8 NYCRR 279.8[c][2]-[3]).  In addition, State regulation provides that a "request for review, answer, answer with cross-appeal, answer to cross-appeal, or reply shall not exceed 10 pages in length" (8 NYCRR 279.8[b]).  A request for review must be verified by the petitioner (see 8 NYCRR 279.7[b]).

Generally, the failure to comply with the practice requirements of Part 279 of the State regulations may result in the rejection of the submitted documents or a determination excluding issues from the scope of review on appeal (8 NYCRR 279.8[a]; see Davis v. Carranza, 2021 WL 964820, at *12 [S.D.N.Y. Mar. 15, 2021] [upholding an SRO's conclusions that several claims had been abandoned by the petitioner]; M.C. v. Mamaroneck Union Free Sch. Dist., 2018 WL 4997516, at *23 [S.D.N.Y. Sept. 28, 2018] [upholding dismissal of allegations set forth in an appeal to an SRO for "failure to identify the precise rulings presented for review and [failure] to cite to the pertinent portions of the record on appeal, as required in order to raise an issue" for review on appeal]; T.W. v. Spencerport Cent. Sch. Dist., 891 F. Supp. 2d 438, 440-41 [W.D.N.Y. 2012] [upholding dismissal of a petition for review that was untimely and exceeded page limitations]).  However, "judgments rendered solely on the basis of easily corrected procedural errors or 'mere technicalities,' are generally disfavored" (J.E. v. Chappaqua Cent. Sch. Dist., 2015 WL 4934535, at *4-*6 [S.D.N.Y. Aug. 17, 2015], quoting Foman v. Davis, 371 U.S. 178 [1962]).

With respect to the page limitations, the district is correct that the parent's request for review is 11 pages long, in excess of the 10-page maximum set forth in State regulation (8 NYCRR 279.8[b]).  However, the parent's request for review exceeds the allowed page length by a single line of text, along with the date and the attorney's signature with address (Req. for Rev. at p. 11).  Viewing the request for review as a whole, it appears that the page limitations violation could have easily been avoided had the parent's attorney corrected the formatting on page four that created about a half of a page's length of blank space (id. at p. 4).[10]  Had this space been utilized, the single line of text, along with the attorney's signature and address, would have easily fit onto page 10.  Under the circumstances, I decline to reject the request for review on this basis.  In addition, to the extent the parent's attorney, who witnessed the parent's signature on the affidavit of verification, failed to accurately identify the registration number and/or expiration of her commission on the verification she notarized will not be held against the parent as a matter within my discretion.

However, the parent's pleading is deficient in another respect that it determinative of her appeal.  With respect to the issues raised, under the heading "Statement of Issues," the request for review numbers three issues generally pertaining to the three prongs of the Burlington/Carter test, i.e., alleging error in the IHO's decision with respect to (1) the district's offer of a FAPE to the student for the 2023-24 school year; (2) the appropriateness of Tiferet Torah; and (3) the weighing of equitable considerations.  The parent does not, however, allege that the IHO erred in her finding that, given the timing of the parent's October 2023 letter requesting a reevaluation and development of an IEP, the district's time to develop the IEP had not yet passed as of the date of the parent's January 2024 due process complaint notice (see IHO Decision at pp. 8-9, 12).  The IHO relied on this finding to conclude that the district did not owe the student an IEP prior to the date of the due process complaint notice, the parent did not cooperate in the process, and the parent's claims were not ripe (id.).

The closest that the parent's appeal comes to raising the IHO's determination in this regard is the parent's assertion that "[t]he timeliness of the notices and [the district's] receipt of notices should go toward the equities in this case, not towards the [district] obligation to provide a FAPE" (Req. for Rev. ¶ 11).  In the discussion of equitable considerations, the parent does not set forth any argument about the IHO's findings relating to the timing or transmittal of her letters to the district, stating only that "[t]he Parent sent notices to the [district] and did not receive responses to the notices" (Req. for Rev. ¶ 27).

On the point raised by the parent relating to the district's obligation to offer the student a FAPE after having developed the IESP, in its Official Analysis to Comments in the Federal Register, the United States Department of Education noted that, when a student is placed in a nonpublic school located outside of the district, a student's district of residence is responsible for providing FAPE but further indicated that, "[i]f the parent makes clear his or her intention to keep the child enrolled in the private elementary school or secondary school located in another LEA, the LEA where the child resides need not make FAPE available to the child" (71 Fed. Reg. 46,593 [Aug. 14, 2006]).[11]  The United States Department of Education has maintained this position in relatively recent guidance answering the following question:

If a parent makes clear his or her intention to keep the child with a disability enrolled in the private school, is the LEA where the child resides obligated to offer FAPE to the child and develop an individualized education program (IEP) for the following school year, and annually thereafter?

Answer: No.  Absent controlling case law in a jurisdiction, after the LEA where the child resides has made FAPE available to the child, and the parent makes clear his or her intention to not accept that offer and to keep the child in a private school, the LEA where the child resides is not obligated to contact the parent to develop an IEP for the child for the following year and annually thereafter.  However, if the parent enrolls the child in public school in the LEA where the child resides, the LEA where the child resides must make FAPE available and be prepared to develop an IEP for the child.

("Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schools" 80 IDELR 197 [OSERS 2022] [emphasis added]; see also "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 3602-c," Attachment 1 at p. 12, VESID Mem. [Sept. 2007], available at https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

Courts have grappled with the effect of a parent's intention to place a student at a nonpublic school on a district's obligation to provide the student with an IEP.  On the one hand, it is clear that a district violates the IDEA by refusing to convene a CSE meeting to develop an IEP when the parent of a student who is parentally placed in a private school is making inquiries about potentially enrolling a student in a public school for special education programming and an outdated IEP in that instance is not a permissible placeholder (Bellflower Unified Sch. Dist. v. Lua, 832 Fed. App'x 493, 496 [9th Cir. Oct. 26, 2020]).  However, in E.T. v. Board of Education of Pine Bush Central School District, after concluding that the district retained an obligation to offer the student a FAPE, the court found that the "issue of the parents' intent [was] a question that inform[ed] the balancing of the equities rather than whether the district had an obligation to the child under the IDEA" (2012 WL 5936537, at *16 [S.D.N.Y. Nov. 26, 2012]; see R.G. v. New York City Dep't of Educ., 585 F. Supp. 3d 524, 539 [S.D.N.Y. 2022] [examining the parents' intent as an equitable consideration]).  In contrast to the court's holding in E.T., at least two federal district courts have found that an objective manifestation of the parent's intention to place a student in a nonpublic school is a threshold issue regarding whether a district remained obligated to offer the student a FAPE (see Dist. of Columbia v. Vinyard, 971 F. Supp. 2d 103, 108-10 [D.D.C. 2013] [finding the court's explanation in E.T. "illogical"]; Shane T. v. Carbondale Area Sch. Dist., 2017 WL 4314555, at *15-*20 [M.D. Pa. Sept. 28, 2017]).[12]

Accordingly, on the parent's contention that the IHO should not have considered the timing of the parent's letter as a matter affecting FAPE, I do not agree.  Whether the IHO was correct in her determination is another matter, which the parent does not explicitly appeal.[13]^, [14]

As the parent did not appeal the IHO's findings regarding the effect of the timing of the parent's October 2023 letter to the district vis-à-vis the date of the January 2024 due process complaint notice as they pertained to the IHO's findings relating to ripeness, as well as the district's offer of a FAPE and equitable considerations, these determinations have 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]).  Given that these findings of the IHO were determinative of the outcome in this matter, it is unnecessary to reach the issues raised by the parent in her request for review.

VII. Conclusion

Based on my determination above that grounds for the IHO's dismissal of the parent's due process complaint are unappealed, the necessary inquiry is at an end.

THE APPEAL IS DISMISSED.