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 unilaterally-obtained special education services delivered during the 2023-24 school year.  The district cross-appeals from the IHO's denial of its motion to dismiss the parent's claims based on a lack of subject matter jurisdiction.  The appeal must be sustained in part.  The cross-appeal must be dismissed.  The matter is 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

The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.  Briefly, on September 30, 2020, a CSE convened, found the student eligible for special education as a student with autism, and developed an IESP for the 2020-21 school year with an implementation date of October 15, 2020 (Dist. Ex. 3).[1]  The CSE recommended that the student receive five periods per week of direct group special education teacher support services (SETSS), two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and two 30-minute sessions per week of individual counseling services (id. at p. 8).[2]

The student attended a religious nonpublic school during the 2023-24 school year (11th grade) (Parent Ex. H at p. 1).  The parent electronically signed an "Agreement For Special Education Teacher Support Services," effective September 1, 2023, with Kids Domain Childcare Center (Kids Domain) (Parent Ex. C).  The agreement provided that the student would receive five periods per week of SETSS (id.).  The hourly rate for SETSS was left blank in the agreement (id.).

On September 28, 2023, a CSE convened, found that the student continued to be eligible for special education as a student with autism, and developed an IESP for the 2023-24 school year with an implementation date of October 12, 2023 (Dist. Ex. 2).[3]  The CSE recommended the student continue to receive five periods per week of direct group SETSS, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and two 30-minute sessions per week of individual counseling services (id. at p. 7).  In a prior written notice to the parent dated September 28, 2023, the district relayed the CSE's recommendations for the student (Parent Ex. F).

In a due process complaint notice, dated July 15, 2024, the parent alleged that, for the 2023-24 school year, the district failed to implement the SETSS and related services recommended for the student in "[t]he last program the [district] developed for the [student] that the parent agreed with," which was the student's September 30, 2020 IESP (Parent Ex. A at p. 1).  Having had no success securing a SETSS or related services provider at the district's rate, the parent reported that she was forced to unilaterally secure her own providers; however, the rates were higher than the standard district rate (id.).  Consequently, the parent asserted that the district failed to provide the student a FAPE during the 2023-24 school year (id.).  As relief, the parent requested an order for direct funding of SETSS "at an enhanced rate" and related services at the providers' rates (id. at p. 2).

The district submitted a response to the parent's due process complaint notice, dated August 14, 2024, generally denying the allegations and asserting multiple affirmative defenses including a defense that the parent's claims were barred due to the failure of the parent to provide a written request to the district to implement the student's recommended services during the 2023-24 school year on or before June 1, 2023 (Parent Ex. E).

An IHO was appointed by the Office of Administrative Trials and Hearings (OATH).  In a motion to dismiss dated October 22, 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 claims were unripe for adjudication (Dist. Mot. To Dismiss).  An impartial hearing convened on November 14, 2024 and concluded the same day (Tr. pp. 1-45).  At the hearing, the IHO first denied the district's motion to dismiss for lack of subject matter jurisdiction (id. pp. 7-8).  Next, the IHO acknowledged that the district was asserting a June 1 defense that the parent failed to request special education services for the student for the 2023-24 school year by the June 1 deadline as required by Education Law § 3602-c (Tr. p. 8; Parent Ex. E. at p. 1).  At the hearing, the district cross-examined the student's mother regarding the contract for the unilaterally-obtained services (Tr. pp. 14-16).  The parent testified that she had six children, five of whom received special education services and, as such, she could not remember if she had sent or directed a letter to be sent requesting services for this student to the district for the 2023-24 school year on or before June 1, 2023 (Tr. p. 19).  In closing arguments, the parent, through her advocate, argued that the district agreed the student continued to be eligible for special education because it developed the student's September 2023 IESP and sent the parent a prior written notice, actions the parent advocate also contended could constitute a waiver of the June 1 defense (Tr. p. 38).[4]

In a decision dated December 16, 2024, the IHO initially reiterated her denial of the district's motion to dismiss based on a lack of subject matter jurisdiction (IHO Decision at p. 3).  Next, the IHO concluded that while the parent's due process complaint notice alleged a generalized challenge to any subsequent reduction of services or declassification after the September 2020 IESP, it did not specifically challenge, or even mention, the September 2023 IESP (IHO Decision at p. 4; see Parent Ex. A).  As such, the IHO held that the appropriateness of the services recommended in the September 2023 IESP was not properly at issue (IHO Decision at p. 4).

As to the parent's request for funding of the services recommended in the September 2020 IESP, the IHO found the June 1 issue to be dispositive (IHO Decision at p. 9).  The IHO found no credible evidence that the parent submitted a timely written request for equitable services by June 1, 2023, specifically finding that the parent was not a reliable witness (id.).  Moreover, the IHO found that although the parent advocate did not specifically argue that the district waived the June 1 defense, even if the advocate had specifically argued at the hearing that the district had waived the June 1 defense by its development of the September 2023 IESP, such an action was not a waiver (id.).  The IHO noted prior SRO decisions wherein a CSE's development of an IESP for a student after June 1 of the upcoming school year, without more, did not constitute a clear and unmistakable waiver of the June 1 defense (id.).  Based on the forgoing, the IHO dismissed the parent's claims with prejudice.

IV. Appeal for State-Level Review

The parent appeals.  In pertinent part, the parent argues that the district failed to meet its burden of establishing the June 1 affirmative defense.  According to the parent, she was not required to file a June 1 notice every school year.  In addition, the parent asserts that the evidence shows a notice was sent and that even if it were not sent, the district waived the defense by developing an IESP for the student.  In particular, according to the parent, the IHO failed to recognize that the district waived the June 1 defense by developing the student's September 2023 IESP and by providing the parent with a prior written notice that identified the special education services the student "will receive" (Req. for Rev. ¶11).  As relief, the parent requests an award of direct funding of the SETSS provided by Kids Domain to the student during the 2023-24 school year.

In an answer and cross-appeal, the district generally denies the allegations contained in the parent's request for review and further contends, in pertinent part, that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims.  In addition, the district asserts that, in the event that the IHO's determination that the parent's claims were barred by the June 1 defense is overturned, the parent failed to prove that the SETSS provided to the student during the 2023-24 school year were appropriate.

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

Initially, the district's contentions on cross-appeal with regard to subject matter jurisdiction must be discussed.  The district argues 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, the IHO lacked subject matter jurisdiction with respect to pure IESP implementation claims.

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]).  Here, the district asserted in its motion to dismiss 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, IHOs lack subject matter jurisdiction with respect to pure IESP implementation claims.

Recently in a number of 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. 25-079; 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 the New York City Dep't of Educ., Appeal No. 25-068; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 25-028; Application of a Student with a Disability, Appeal No. 24-621; 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 parent would not have a right to due process under federal law; 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]

Education Law § 3602-c, concerning students who attend nonpublic schools, 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]).

However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider enhanced rates claims from parents seeking implementation of equitable services.

Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]).  State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate 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 received 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]), 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.

However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years.  That increase in due process cases almost entirely concerns services under the dual enrollment statute, and public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy.  Policy makers have recently attempted to address the issue.

In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available at https://www.regents.nysed.gov/sites/regents/files /524p12d2revised.pdf).[9]  Ultimately, however, the proposed regulation was not adopted.  Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over 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" (8 NYCRR 200.5[i][1]).  The amendment to the regulation does not apply to the present circumstance for two reasons.  First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[10]  Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]).  Specifically, the Order provides that

pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity

(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[11]

Consistent with the district's position that "there is not and has never been a right to bring a due process complaint" for implementation of IESP claims or enhanced rate for services and that the preliminary injunction issued by the New York Supreme Court does not change the meaning of § 3602-c, 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]).[12]

However, acknowledging that the question has publicly received new attention from State policymakers, as well as at least one court at this juncture and appears to be an evolving situation, given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter.  Further, the position set forth in the guidance document issued in the wake of the emergency regulation, which is now enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes.

Accordingly, the IHO's determination that she possessed subject matter jurisdiction to adjudicate the parent's claim was correct and, as a result, that portion of the district's cross-appeal requesting that the IHO's denial of its motion to dismiss the parent's due process complaint notice be overturned must be denied.

B. Scope of the Impartial Hearing and Review

The parent challenges the IHO's denial of her request for an award of direct funding for the unilaterally-obtained SETSS delivered by Kids Domain during the 2023-24 school year.  The parent asserts that the district recommended an IESP for the 2023-24 school year in September 2023, mandating, among other services, five periods of SETSS per week.  The parent further asserts that there was a prior IESP in September of 2020 that recommended that the student receive the same services.  The parent maintains that the IHO's determination that the June 1 defense asserted by the district precluded her requested relief was incorrect, and further argues that the unilaterally-obtained SETSS were appropriate for the student and equitable considerations weighed in her favor.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IESP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).

Here, the IHO correctly noted that while the parent's due process complaint notice alleged a generalized challenge to any subsequent reduction of services or declassification after the September 2020 IESP, it did not specifically challenge, or even mention, the September 2023 IESP, which carried an implementation date of October 12, 2023 (IHO Decision at p. 4; Parent Ex. A at p. 1).  Accordingly, only the alleged failure of the district to implement the SETSS recommended in the September 2020 IESP is at issue.

C. June 1 Deadline

Turning to the issue at the heart of this matter, 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]).  With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974).  Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).

The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).  "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

Here, contrary to the parent's arguments that the district failed to support the affirmative defense with sufficient evidence, I note that once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]).  Thus, I am not persuaded by the parent's argument that the district failed to sufficiently support its June 1 affirmative defense by proving that the parent did not send a letter requesting equitable services prior to June 1, 2023.

Moving to the notice requirements, the parent seeks direct funding of unilaterally-obtained SETSS provided by Kids Domain during the 2023-24 school year based on the allegation that the district failed to implement the student's IESP during the 2023-24 school year.  As such, the parent was obligated to have filed a written request for such services with the district on or before June 1, 2023 (Educ. Law § 3602-c[2]).  As the IHO found, the hearing record does not include a written request for equitable services for the 2023-24 school year that had been sent to the district by June 1, 2023 (IHO Decision at p. 9).  Additionally, the parent did not testify that she had sent a notice for the student, indicating, instead, that she did not remember (Tr. p. 19).  Moreover, the IHO did not find the parent to be a reliable witness due to her lack of recollection of relevant facts (id.).  Accordingly, there is no basis for finding that the parent sent a written notice requesting equitable services to the district prior to June 1, 2023.

It is worth noting that, on appeal, the parent also asserts that she was not required to send a notice before June 1, 2023 to request equitable services for the 2023-24 school year.  The parent argues that Education Law § 3602-c only requires notice prior to the first school year for which  a student's parents request equitable services.  However, this argument is in contravention of the requirement set forth in Education Law § 3602-c, which states that the request be filed "on or before the first of June preceding the school year for which the request is made" (Educ. Law § 3602-c[2][a]).  The statute does not differentiate between students already identified and receiving services pursuant to an IESP during the prior school year and those who are not; however, the law does make exceptions for students first identified as students with disabilities after the June first deadline (Educ. Law § 3602-c[2][a]).  Accordingly, to satisfy the statutory notice requirement, parents must make the request each year for which they seek dual enrollment services, and the parent's argument on this point does not warrant overturning the IHO's decision.

However, in this instance, the lack of evidence of a written notice is not the end of the inquiry.  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]). The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[13]  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" 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]).

While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver.  This is due, in part, because the district is required to navigate requirements that are in tension with one another.  On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services.  In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]).  Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]).  Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.

Here, while convening the September 2023 CSE to create an IESP for the student may not, on its own, have constituted a waiver of the June 1 deadline, the language contained in the district's prior written notice evidences that the district intended to arrange for delivery of the services recommended in the IESP to the student (Parent Ex. F at pp. 1-2).  Specifically, the prior written notice informed the parent that the student "continue[d] to meet the eligibility requirements for an educational disability" and confirmed that the parent had "indicated that [the parent] [was] placing [the student] in a non-public school" (id. at p. 1).  Additionally, the prior written notice indicated that the parent was "seeking equitable services from the [district]" and,  "[t]herefore an [IESP] was developed recommending the special education services [the student] w[ould] receive" (id.).

Thus, the district's actions in convening the September 2023 CSE, developing an IESP for the student for the 2023-24 school year with an implementation date of October 12, 2023, and sending the prior written notice described above constituted a waiver of the requirement for written notice.  Accordingly, the evidence in the hearing record does not support the IHO's determination that the student was not eligible for equitable services for the 2023-24 school based on the district's affirmative defense that the parent did not submit a timely written request for services.

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

It is undisputed that the district failed to present any witnesses at the impartial hearing and did not dispute its failure to implement the student's special education services (Tr. pp. 1-45).  Accordingly, as the IHO's finding as to the June 1 defense is being overturned, the hearing record supports finding that the district failed to provide the student a FAPE for the 2023-24 school year.

Because the IHO found the June 1 defense to be dispositive, she consequently did not determine whether the SETSS provided to the student by Kids Domain during the 2023-24 school year were appropriate or whether equitable considerations weighed in favor of granting funding for the costs of the services provided by Kids Domain.

VII. Conclusion

The evidence in the hearing record does not support the IHO's finding that the parent's claims were foreclosed based on the lack of evidence of a timely written request from the parent for dual enrollment services.  The evidence in the hearing record did not show that the district delivered special education services to the student and, as such, the district denied the student a FAPE during the 2023-24 school year.  However, as the IHO did not address the appropriateness of the parent's unilaterally-obtained SETSS, or equitable considerations, this matter must be remanded to the IHO to make determinations on these issues.

I have considered the parties' remaining contentions and find the necessary inquiry at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision dated December 16, 2024 is modified by reversing that portion which found that the student was not entitled to dual enrollment services from the district for the 2023-24 school year due to the parent's failure to submit a written request for such services; and

IT IS FURTHER ORDERED that that the matter is remanded to the IHO to determine whether unilaterally-obtained SETSS provided to the student by Kids Domain were appropriate for the student for the 2023-24 school year; and whether equitable considerations weigh in favor of granting funding for the costs of the services provided by Kids Domain.