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 dismissed the parent's due process complaint notice for lack of subject matter jurisdiction.  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 (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 300.32, 300.32; 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

Given the ultimate disposition of the matter, a full recitation of the student's educational history is unnecessary.  Briefly, a CSE convened on November 18, 2022, found the student eligible for special education and related services as a student with a learning disability and developed an IESP for the 2022-23 school year, with a projected implementation of November 25, 2022 (Parent Ex. B at pp. 1, 9, 12).  The November 2022 CSE recommended that the student receive four periods per week of direct group special education teacher support services (SETSS) delivered in a separate location, two 30-minute sessions per week of individual occupational therapy (OT) delivered in a separate location, and two 30-minute sessions per week of group speech-language therapy (id. at p. 9).[1]^, [2]

A February 24, 2023 progress report indicated that the student received four hours per week on individual SETSS from Special Edge for the 2022-23 school year (Dist. Ex. 7 at pp. 1-4).

In a letter dated May 15, 2023, the parent requested that the district provide the student with special education services for the 2023-24 school year (Parent Ex. E at pp. 1-2).

According to a June 15, 2023 speech-language therapy progress report, the student received speech-language therapy services from a district provider beginning on September 12, 2022 (Dist. Ex. 6 at pp. 1-2). 

On August 3, 2023, the parent electronically signed an enrollment agreement for the 2023-24 school year with EDopt, LLC (EDopt) (Parent Ex. C at pp. 1-3).  According to the agreement, the parent acknowledged that she understood that the fees for services for the 2023-24 school year were in accordance with Schedule A, which was attached to the agreement (id. at p. 1).  The agreement further stated that "[p]arents underst[oo]d that they remain[ed] financially responsible for all services provided to the [c]hild by EDopt," and that "[a]lthough [p]arents [we]re financially responsible for services provided, EDopt … agreed to allow [p]arents … time to seek funding through the impartial hearing process, before being billed by EDopt" (id. at p. 2).  According to Schedule A, EDopt would provide 10-month services from September 2023 through June 2024, and the parent agreed to the rates set forth in Schedule A, which includes SETSS and related services at an individual rate of $195 per hour and a group rate of $145 per hour (id. at p. 3).

 In a letter dated August 23, 2023, the parent, through a lay advocate from Prime Advocacy, notified the district that it had failed to "assign a provider for the services mandated" for the 2023-24 school year (Parent Ex. D).  The parent requested that the district assign a provider to "fulfill the mandate" and that if the district failed to do so, the parent would "be compelled to unilaterally obtain the mandate services through a private agency at an enhanced market rate" (id.).

The hearing record included district service records reflecting that the student received speech-language therapy services from a district provider for the 2023-24 school year (Dist. Ex. 11 at pp. 7-12).  According to session notes included in the hearing record, the student began receiving OT services from EDopt on September 7, 2023, and began receiving SETSS from EDopt on October 10, 2023 (Parent Exs. I at p. 1; J at p. 1).  The hearing record also included an October 10, 2023 teacher report, and an October 17, 2023 OT progress report (Dist. Exs. 4 at pp. 1-4; 5 at pp. 1-2).

A CSE convened on October 20, 2023, found the student continued to be eligible for special education and related services as a student with a learning disability, and developed an IESP for the 2023-24 school year, with a projected implementation date of November 3, 2023 (Dist. Ex. 3 at pp. 1, 12-13, 15).  The October 2023 CSE continued to recommend four periods per week of direct group SETSS delivered in a separate location, two 30-minute sessions per week of individual OT delivered in a separate location, and two 30-minute sessions per week of group speech-language therapy delivered in a separate location (id. at pp. 12-13).

A. Due Process Complaint Notice

In a due process complaint notice dated July 16, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years and denied the student "the right to equitable special education services" (Due Process Compl. Not. at p. 2).  The parent asserted that the district failed to inform her how the services the district recommended would be implemented and improperly and impermissibly shifted the burden of locating providers onto the parent (id.).  The parent contended that she was unable to procure a provider for the 2023-24 school year at the district's rates (id.).  The parent further asserted that she had no choice but to retain the services of an agency to provide the mandated services at an enhanced rate set by the provider (id.).  Additionally, the parent alleged that the district failed to develop a program for the student for the 2024-25 school year, which resulted in a denial of a FAPE to the student for the 2024-25 school year (id.).  As relief, the parent requested a pendency hearing, an impartial hearing, "an order awarding" four periods of SETSS per week, two 30-minute sessions per week of individual OT and two 30-minute sessions per week of speech-language therapy at an enhanced rate set by the provider for the 2023-24 school year, and "[a]llowance of funding for payment to the [s]tudent's provider/agency for" four periods of SETSS per week, two 30-minute sessions per week of individual OT and two 30-minute sessions per week of speech-language therapy at an enhanced rate set by the provider for the 2023-24 school year, "[a]warding all related services set forth on the [s]tudent's last IESP for the 2023-24 school year," [c]ompensatory [e]ducation services to be provided to the [s]tudent as a bank, at an enhanced rate set by the provider, to make-up for any mandated services not provided by the [district]," an order" for the entirety of the 2024-25 school year, directing the district to provide the student with "the services and supports included by the CSE in the last program of services developed for the student,"  to be funded at providers enhanced rates, "to ensure that the parent has the capacity to implement the ordered services in a timely and continuous manner" (id.).[3]

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

In a written motion to dismiss, dated August 30, 2024, the district requested that the IHO dismiss the parent's due process complaint notice on the grounds that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims, and that the parent's claims for the 2024-25 school year were not ripe (Dist. Mot. to Dismiss at pp. 1-8).  The parent submitted an "answer" in opposition to the district's motion to dismiss, dated February 27, 2025 (Parent Mem. of Law in Opp'n at pp. 1-12).[4]

The parties convened on February 27, 2025, before an IHO with the Office of Administrative Trials and Hearings (OATH) (Tr. pp. 1-33).  The district stated that it had filed a motion to dismiss on August 30, 2024 (Tr. p. 5).  The IHO stated that she would not rule on the district's motion at that time, following additional discussion, the parent withdrew all of her claims related to the 2024-25 school year (Tr. pp. 9-10, 11).  Documentary evidence and witness testimony were offered by the parties and admitted during the impartial hearing (Tr. pp. 12-17, 19-30).  The parent sought funding for only SETSS and OT for the 2023-24 school year during the impartial hearing (Tr. p. 15).

In a decision dated April 14, 2025, the IHO granted the district's motion to dismiss for lack of subject matter jurisdiction (see IHO Decision at pp. 1-2.).  The IHO determined that she lacked subject matter jurisdiction to hear the parent's claims seeking implementation of equitable services brought pursuant to Education Law § 3602-c (IHO Decision at pp. 1-2).  The IHO noted a previously adopted emergency amendment to the Commissioner's regulations and a subsequent New York State Court's issuance of a restraining order staying implementation or enforcement of the emergency resolution (id. at pp. 1-2 & n.3).  The IHO explained that her determination that she lacked subject matter jurisdiction was not based on the emergency amendment in light of the restraining order (id.).

The IHO reasoned that parents who seek equitable services for their children under Education Law § 3602-c have opted out of public schools and are not entitled to a FAPE and do not have the same due process protections as public school students (IHO Decision at pp. 2-4).  The IHO interpreted Education Law § 3602-c to allow only two types of disputes that could be brought under IDEA due process complaint procedures: those related to the "review" of CSE recommendations and those related to child find activities (id. at pp. 4-8).  According to the IHO, the plain meaning of the word "review" in Education Law § 3602-c precludes an IHO from hearing a "failure to implement" claim and cannot mean "full due process" (id. at pp. 7-8).

The IHO reasoned that the IHOs appointed pursuant to the IDEA and Education Law § 4404 were "trained primarily to decide IDEA-based issues" and "lack[ed] the expertise to decide" disagreements about rates (IHO Decision at p. 8).  The IHO further noted that decisions from SROs and guidance from the New York State Education Department were not "binding precedent" (id. at p. 12).

The IHO also reviewed the legislative history of Education Law § 3602-c and determined that Education Law § 3602-c never granted an IHO jurisdiction to preside over a failure to implement claim (IHO Decision at pp. 9-10).  The IHO also addressed Gabel v. Board of Education of Hyde Park Central School District, 368 F. Supp. 2d 313 (S.D.N.Y. 2005) (id. at p. 12).  The IHO noted that, in Gabel, the parents "wanted related services for their parentally placed, private school child, but the [local educational agency (LEA)] did not recommend any (or possibly did not recommend what the parents wanted)" (id.).  According to the IHO, Gabel did not involve a "failure to implement" claim, instead, the issue in Gabel was the school district's failure to recommend related services after having conducted evaluations (id. at p. 12, n.47).  The IHO determined the New York State Legislature did not intend to grant parents the right to a due process hearing before an IDEA IHO for a rate dispute or "failure to implement" claim under § 3602-c (id. at p. 10).

According to the IHO, the purpose of Education Law § 3602-c is "to allow students access to various state provided services" (IHO Decision at pp. 12-13).  The IHO rejected State-level review decisions holding that dually-enrolled students who receive public school services are considered part-time public school students who are entitled to the same legal protections as public school students (id. at 13-14).  The IHO also denied the parent's request for a pendency order on the basis that "[§] 3602-c's plain language d[id] not grant parents of parentally placed students any right to pendency" (id. at p. 15).  The IHO reasoned that "[she did] not believe that provisions of [Education Law] §[]4404 appl[ied] broadly to students with IESPs" and found that Education Law § 4404[4][a] pendency provisions "refer[red] only to proceedings commenced under [Education Law] §[]4404[1]" and thus the "plain language" did not confer pendency rights on students with IESPs (id.).  The IHO held further that federal law "explicitly exclude[d] parentally placed students from the IDEA's pendency protections" (id. [emphasis omitted]).

Accordingly, the IHO dismissed the parent's due process complaint notice in its entirety "with prejudice with respect to this forum, but without prejudice to refile in an appropriate forum" (IHO Decision at pp. 17-18).  The IHO likewise dismissed the parent's claim for compensatory education services because it arose from the parent's initial claim that the district failed to implement IESP services (id. at p. 16).

IV. Appeal for State-Level Review

The parent appeals alleging that the IHO erred in dismissing the due process complaint for lack of subject matter jurisdiction.  The parent points to numerous State-level review decisions that all stand for the proposition that IHOs have subject matter jurisdiction over implementation claims.  The parent contends that the IHO misinterpreted Education Law § 3602-c, misapprehended Gabel and asserts that implementation claims for special education dual enrollment cases can be heard in a due process proceeding.  The parent contends that the IHO refuses to adhere to the SRO's guidelines, which is "causing extreme prejudice to the parent in that appeals are timely and expensive" (Req. for Rev. at p. 2).  For relief, the parent requests that the case be remanded to a different IHO "in order to be heard without bias on the merits" (id. at p. 6).

In an answer, the district argues that the IHO's decision should be upheld.  The district contends that the IDEA and State law "preclude jurisdiction over this case" and notwithstanding any litigation over State regulation on the topic.  Additionally, the district argues that the legislative history of Education Law § 3602-c belies the SRO's consistent position that IHOs possess subject matter jurisdiction over failure to implement claims.  Lastly, the district argues that the IHO did not demonstrate bias, and the matter should not be referred to a different 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]).[5]  "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.).[6]  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. Subject Matter Jurisdiction

Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues in its answer that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district and the IHO, IHOs and SROs lack subject matter jurisdiction with respect to IESP implementation claims.

 In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-510; Application of a Student with a Disability, Appeal No. 25-297; Application of a Student with a Disability, Appeal No. 25-295; Application of a Student with a Disability, Appeal No. 25-220; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment 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]).[7]

Concerning students who attend nonpublic schools, Education Law § 3602-c 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 section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]).  SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[8]  In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.[9]

After legislative amendments took effect in 2007 the State Department of Education issued guidance further interpreting Education Law § 3602-c after legislative amendments in 2007 took effect, which provides that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("Chapter 378 of the Laws of 2007 – 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," Attachment 1 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).

The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago and then dramatically intensified to tens of thousands of due process filings per year within certain regions of this school district in the last several years.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[10]

In its motion to dismiss, the district contends that the decision does not change the plain meaning of the Education Law and that under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services" (Dist. Mot. to Dismiss at p. 4 [emphasis in the original]).  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[11]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis that has since lapsed as further described below.

Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or if certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c.  Instead, case law has carved out a narrow exception of when exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP.'"  (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 (2d Cir. 2009); quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).

More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]).  However, the Court did not address whether parents must use the ERES procedure or whether they may also permissively utilize the administrative due process procedures.  Because petitioners sought injunctive relief of a State regulation that had lapsed, the Court denied petitioners' request for a preliminary injunction as moot, and further denied their request for a permanent injunction "because there [wa]s an adequate remedy at law" regarding the ERES procedure and subsequent opportunity for judicial review (Agudath Israel of America, No. 909589-24, slip op. at 6, 7).  The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" (id. at p. 7).[12]  However, the Court did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).  Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).

Thus, case law has established that within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined to go further to hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case.  Accordingly, the IHO's decision dismissing the parent's claims due to a lack of subject matter jurisdiction is incorrect and must be reversed.

B. IHO Bias

With respect to the parent's allegations of IHO bias, 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).

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 points to the IHO's deviation from precedent to support her claim of IHO bias.  Specifically, the parent claims that "this IHO's continued refusal to adhere to the SRO's guidelines is causing extreme prejudice to the parent" (Req. for Rev. at p. 2).  For this reason, the parent seeks to have this case remanded to a different IHO.  However, as noted above, there have been many conflicting viewpoints regarding the dual enrollment statute, case law has continued to evolve while this matter was pending and may further still evolve.[13]  The parent cannot point to anything in the record beyond the IHO's decision to support her claim of bias.  Further, her request that this case be remanded to a different IHO seeks merely to avoid potential prejudice.  Such speculative claims without any further information are insufficient to support a finding that the IHO exhibited bias in this matter.  Therefore, the parent's request that this matter be remanded to a different IHO is denied.

C. Remand

Based on the foregoing, the IHO's dismissal with prejudice on the basis of subject matter jurisdiction must be reversed and the case remanded to address the merits of the issues raised in the parent's due process complaint notice.  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]).  Upon remand, the IHO is directed to conduct a three-prong Burlington/Carter analysis of the evidence submitted by the parties during the impartial hearing held on February 27, 2025, and issue a written decision on the merits of the parent's claims.

VII. Conclusion

For the reasons described above, this matter is remanded to the IHO to issue a written decision on the merits of the parent's claims asserted in her July 16, 2024 due process complaint notice.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO decision dated April 14, 2025, is modified by reversing that portion which dismissed the parent's claim pertaining to IESP implementation for lack of subject matter jurisdiction; and,

IT IS FURTHER ORDERED that the 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.