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 Access to Success, LLC (Access to Success) for the 2024-25 school year.  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).  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

In this case, the evidence in the hearing record concerning the student's educational history is sparse.

On May 30, 2023, the parent signed a form to notify the district that the student would attend a nonpublic school at the parent's expense for the 2023-24 school year (first grade) and that the parent was requesting that the district continue to provide the student with special education services (Parent Ex. F at p. 1).  A CSE convened on October 16, 2023, found the student eligible for special education as a student with speech or language impairment, and developed an IESP for the student with a projected implementation date of October 23, 2023 (Parent Ex. C at p. 1).[1]  The CSE recommended the student receive 10 periods of direct, individual special education teacher support services (SETSS) per week; one 45-minute session of individual speech-language therapy per week; one 45-minute session of group speech-language therapy per week; and two 45-minute sessions of individual occupational therapy (OT) per week (id. at pp. 14-15).  The October 2023 IESP had a projected annual review date of October 16, 2024 (id. at p. 1).

Access to Success sent an email to the district on May 24, 2024, copied to the parent, purporting to forward to the district the parent's "letter of intent" for the student (Parent Ex. J at p. 4).[2]  The district responded that it would process the submission (id.).  On August 5, 2024, the district issued the parent an authorization to obtain up to 10 hours per week of SETSS for the student from an independent provider for the 2024-25 school year, which the parent signed on September 9, 2024 (Parent Ex. L).

By letter dated September 20, 2024, the parent advised the district that the student did not have a SETSS provider to deliver his services and stated her intention to privately obtain the student's SETSS from "an enhanced rate provider" and seek funding from the district for the costs thereof (Parent Ex. E).  On October 7, 2024, the parent signed a document acknowledging that Access to Success would provide the student with 10 hours per week of SETSS for the 2024-25 school year at a specified rate (Parent Ex. H).[3]  Access to Success began providing the student with SETSS at the end of October 2024 (Parent Ex. K ¶ 4).[4]

A. Due Process Complaint Notice

In a due process complaint notice dated October 8, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) by failing to implement the special education services mandated in the student's October 2023 IESP for the 2024-25 school year (Parent Ex. A).  For relief, the parent requested the district be ordered to fund the private SETSS obtained by the parent for the 2024-25 school year at the provider's contracted rate and to fund a bank of compensatory educational at "the contracted rate for services that were not provided due to lack of implementation" (id. at p. 2).

In a due process response dated October 29, 2024, the district generally denied the allegations contained in the due process complaint notice, stated its intent to raise certain affirmative defenses, including the parent's failure to provide a written request to the district for equitable services by June 1 as required by Education Law §3602-c (Due Process Response).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 27, 2025 (see Tr. pp. 1-28).  In a decision dated March 28, 2025, the IHO held that the district timely raised the affirmative defense that the parent had failed to submit a written request for the district to provide the student with equitable services prior to June 1, 2024 pursuant to Education Law § 3602-c (IHO Decision at pp. 4-5).  Next, the IHO concluded that the parent did not establish that she timely requested equitable services for the 2024-25 school year (id. at p. 5).  The IHO indicated that the parent did not "present any witnesses or evidence to support her position" that the district's issuance to the parent of an authorization to obtain independent SETSS reflected that it was on notice that the parent wanted services for the student (id.).  The IHO also noted that the parent's advocate acknowledged that she offered "the wrong June 1st letter" into evidence (id.).  Consequently, the IHO denied the parent's requested relief (id.).  Finally, the IHO found the student was entitled to pendency, retroactive to the date the due process complaint was filed (i.e. October 11, 2024), and that pendency lay in the October 2023 IESP (id.)

IV. Appeal for State-Level Review

The parent appeals from the IHO's decision, alleging that the IHO erred in finding the parent neglected to submit a written request for equitable services prior to June 1, 2024, as required under Education Law § 3602-c.  The parent contends that the IHO failed to review the parent's disclosure packet, which included evidence of a timely submission of the parent's written request and that the district acknowledged receipt of this letter.  The parent also asserts that the IHO erred by failing to rule on all issues raised, including that the district denied the student a FAPE and the appropriateness of the unilaterally-obtained SETSS.  The parent also claims that the IHO was biased and ruled against her without considering the totality of the evidence.  Finally, the parent alleges the IHO did not rule on pendency, despite stating it was warranted.[5]

The parent requests a reversal of the IHO's decision and an order that the district fund the unilaterally obtained SETSS for the 2024-25 school year. Alternatively, the parent requests a finding that she provided notice to the district of her request for equitable services or that the district, through its actions, waived the requirement for written notice, and that the matter be remanded to a different IHO to rule on the merits of the parent's claims and requests for relief.

In an answer, the district responds to the parent's allegations and asserts that the IHO's decision should be upheld.

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. June 1 Deadline

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).

Here, there is no dispute that the district raised the June 1 affirmative defense prior to and during the impartial hearing (see Tr. pp. 19-20; Due Process Response).[8]  During the impartial hearing, the parent offered into evidence a May 30, 2023 notice to the district requesting equitable services for the 2023-24 school year (see Parent Ex. F) but did not present such a notice for the 2024-25 school year.  The hearing record does, however, include the email from Access to Success to the district on May 24, 2024, copied to the parent, purporting to forward to the district the parent's "letter of intent" for the student, which the district acknowledged (Parent Ex. J at p. 4).

Even if the May 24, 2024 email is insufficient to demonstrate a timely request for services from the district, the parent argues that the district waived the June 1 defense by issuing an authorization for the parent to obtain independent SETSS for the student for the 2024-25 school year.  A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088).  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" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).

In this case, the evidence reflects that the parent received a district form, dated August 5, 2024, titled "Authorization for Independent Special Education Teacher Support Services for Parentally-Placed Student" (Parent Ex. L at p. 1).  This authorization stated that the student was entitled to receive a maximum of 10 hours per week of SETSS beginning September 1, 2024 (id. at p. 2).  The authorization form further indicated that the services could not continue beyond a total of 360 hours or beyond June 30, 2025 (id.).  Section 1 of the form, labeled "to be completed by [district] staff" was filled out with the student's name, identification number, and private school he was attending, and listed a frequency of services consistent with the SETSS mandated in his October 2023 IESP (compare Parent Ex. C at p. 14, with Parent Ex. L at p. 2).

This authorization form, which is essentially a voucher created by the district for the parent to obtain private special education services on terms identified by the district, demonstrates the district's effort to ensure implementation of the student's SETSS during the 2024-25 school year.  Therefore, the district's act of authorizing the parent to obtain the SETSS services from independent providers during the 2024-25 school year constitutes evidence either that the district received a request from the parent for services or that it waived the need for such a notice.

Based on the foregoing, the evidence in the hearing record sufficiently demonstrates that either the parent submitted a request for the student to receive dual enrollment services for the 2024-25 school year by June 1, 2024, or that the district nevertheless waived the requirement through its conduct of completing and sending the authorization form to the parent that directed the parent to obtain the services from approved independent providers at district expense.  Accordingly, the IHO erred in dismissing the parent's claims based on the district's June 1 defense.

B. Remand to IHO

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]).

Because of the IHO's ruling dismissing the parent's due process complaint notice based on a June 1 defense, the IHO did not reach the issues of the district's provision of equitable services to the student, the appropriateness of the SETSS obtained by the parent, or whether equitable considerations would have warranted a denial or reduction of relief.  As those issues should first be addressed by the IHO, they are hereby remanded.

The parent requests that the matter be remanded to a different IHO because the IHO who presided over the impartial hearing demonstrated bias.  It is well settled that an IHO must be fair and impartial and must avoid even the appearance of impropriety or prejudice (see, e.g., Application of a Student with a Disability, Appeal No. 12-066).  Moreover, an IHO, like a judge, must be patient, dignified, and courteous in dealings with litigants and others with whom the IHO interacts in an official capacity and must perform all duties without bias or prejudice against or in favor of any person, according each party the right to be heard, and shall not, by words or conduct, manifest bias or prejudice (e.g., Application of a Student with a Disability, Appeal No. 12-064).  An IHO may not be an employee of the district that is involved in the education or care of the child, may not have any personal or professional interest that conflicts with the IHO's objectivity, must be knowledgeable of the provisions of the IDEA and State and federal regulations and the legal interpretations of the IDEA and its implementing regulations, and must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice (20 U.S.C. § 1415[f][3][A]; 34 CFR 300.511[c][1]; 8 NYCRR 200.1[x]).

Here, the parent claims the IHO's bias was demonstrated when "[t]he IHO ruled against the parent without taking into account the totality of the evidence."  To the extent that the parent disagrees with the conclusions reached by the IHO, such disagreement does not provide a basis for finding actual or apparent bias by the IHO (see Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 [2d Cir. 2009] [finding that "[g]enerally, claims of judicial bias must be based on extrajudicial matters, and adverse rulings, without more, will rarely suffice to provide a reasonable basis for questioning a judge's impartiality"]; see also Liteky v. United States, 510 U.S. 540, 555 [1994] [identifying that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion"]; Application of a Student with a Disability, Appeal No. 13-083).  The parent does not point to anything in the record beyond the IHO's decision to support her claim of bias.  Therefore, the parent's request that this matter be remanded to a different IHO is denied.

VII. Conclusion

Having determined that the IHO erred in dismissing this matter based on the district's defense that the parent did not submit a timely written request for equitable services for the 2024-25 school year, the matter must be remanded to the IHO for an evidentiary proceeding to determine if the district failed to provide the student appropriate dual enrollment services under Education Law § 3602-c for the relevant timeframe.  If the IHO finds that the district failed to 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's requested relief.  I have considered the parties' remaining contentions and find that I need not address them in light of my determinations herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated March 28, 2025, is modified by reversing that portion which dismissed the parent's claims based on the district's defense that the parent did not submit a timely written request for equitable services for the 2024-25 school year;

IT IS FURTHER ORDERED that the matter is remanded to the IHO for further proceedings in accordance with the body of this decision.