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 Alpha Student Support (Alpha) for the 2022-23 school year.  The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss the parent's due process complaint for lack of subject matter jurisdiction.  The appeal must be sustained in part.  The cross-appeal must be dismissed, 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

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, a CSE convened on March 21, 2022, determined that the student was eligible to receive special education as a student with an other health impairment, and developed an IESP for the student with a projected implementation date of April 4, 2022 (see Parent Ex. B).[1]  The March 2022 CSE recommended that the student receive three periods per week of direct, group special education teacher support services (SETSS), two 30-minute sessions per week of individual occupational therapy (OT), two 30-minute sessions per week of individual physical therapy (PT), and one 30-minute session per week of group counseling services (id. at p. 10).[2]

On September 3, 2022, the parent signed a contract with Alpha for the provision of SETSS services for the 2022-23 school year at a rate of $195 per hour (Parent Ex. D at p. 2).  By email dated September 28, 2022, the parent's counsel sent the district an attached notification indicating that the student was parentally placed in a private school and that the parent was seeking the SETSS and related services recommended by the March 2022 CSE and that if the district did not implement the recommended services, the parent would procure them from a private provider and seek reimbursement (Parent Ex. C at pp. 1-2).

On February 7, 2023, the CSE convened to create an IESP for the student (see Dist. Ex. 2).  The February 2023 CSE recommended that the student receive three periods per week of direct, group SETSS, two 30-minute sessions per week of individual OT, two 30-minute sessions per week of individual PT, and one 30-minute session per week of group counseling services (id. at p. 8).

A. Due Process Complaint Notice

In a due process complaint notice dated July 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 school year (see Parent Ex. A).  The parent asserted pendency under the March 2022 IESP and alleged that the CSE failed to convene a new meeting during the 2022-23 school year (id. at p. 2).  Specifically, the parent alleged concern over a delay in convening a CSE meeting and that "[t]he 3/21/2022 IESP is outdated and expired" (id. at p. 2).  The parent asserted that she did "not receive any subsequent IEP or IESP documents and [was] uncertain whether there is a more recent program" (id.).[3]    Although the parent entered into the contract with Alpha as described above, and the due process complaint notice was dated over a year after the conclusion of the 2022-23 school year,  the parent made only vague references to private providers and their "contracted rate."  The parent also requested an award of compensatory education for missed SETSS and related services during the 2022-23 school year and an order directing the district to fund the student's SETSS from a private provider at a "prospective provider's contracted rate" (id. at pp. 2-3).

In a due process response dated August 12, 2024, the district generally denied the parent's allegations set forth in the due process complaint notice and indicated its intention to assert multiple 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 (Response to Due Process Compl. Not.).  The district attached to its due process response a prior written notice of recommendation dated February 8, 2023 that was addressed to the parent and referenced the February 7, 2023 CSE meeting (id. at p. 3).

B. Impartial Hearing and Decision

In a motion to dismiss dated September 5, 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 (IHO Ex. I).  The parent submitted a memorandum of law in opposition to the district's motion to dismiss dated September 12, 2024 (IHO Ex. II).

An impartial hearing convened on January 7, 2025 and concluded on the same day (Tr. pp. 1-23).  At the impartial hearing, the IHO determined that she possessed subject matter jurisdiction to adjudicate the parent's claims and denied the district's motion to dismiss (Tr. p. 4; see IHO Decision at p. 3).

In a decision dated January 10, 2025, the IHO first addressed the parties' pendency dispute (IHO Decision at pp. 3-4).  According to the IHO, the parent argued that March 2022 IESP constituted the student's last agreed upon placement; the district argued that the student was not entitled to pendency because it would require the district to provide services during the 2024-25 school year when the parent only made allegations about the 2022-23 school year and further argued that the parent's failure to provide notice by June 1 requesting equitable services precluded the student's entitlement to pendency (id. at p. 4).  The IHO held that although the student might be entitled to pendency, there was not enough evidence in the hearing record for the IHO to determine what constituted the student's last agreed upon placement so the IHO did not order pendency (id.).

Next, the IHO found that the district failed to provide the student with a FAPE for the 2022-23 school year, but because the parent failed to submit a June 1 request for dual enrollment services, the parent's requested relief was denied (IHO Decision at pp. 4-5).  The IHO stated that the district representative raised the affirmative defense of the June 1 request for services in September 2024, months before the impartial hearing, and that the parent's representative "had the opportunity to submit into evidence any documents or testimony to dispute this defense and show they provided the requisite notice by June 1st" but that the parent "offered no such evidence" (id. at p. 5).  The IHO also rejected the parent representative's argument that the district's creation of the March 2022 and February 2023 IESPs constituted conduct demonstrating the district's waiver of the June 1 parental request requirement (id.).  Regarding the creation of the March 2022 IESP, the IHO noted that the district "could reasonably believe that [s]tudent's circumstances or [p]arent's intentions had changed in the months following the [March 2022] IESP meeting and reasonably waited for such notice of [p]arent's intent to continue services for 2022-2023," and concluded that  "I do not find that the March 2022 IESP was created close enough in time to the June 1, 2022 deadline to constitute a waiver"  (id.).  Regarding the February 2023 IESP, the IHO found that it was "irrelevant" to the inquiry because the February 2023 IESP was created "well after June 1 notice was due for the 2022-2023 school year" (id.).  The IHO found that because the parent did not provide the district with June 1 request for dual enrollment services, the parent was "barred from funding" for the special education services the parent privately obtained from Alpha for the 2022-23 school year (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in failing to conclude that the district waived the June 1 parental request requirement by creating a new IESP on February 7, 2023.  The parent attaches the February 8, 2023 prior written notice as additional evidence, arguing that the contents of the prior written notice constituted a waiver of the June 1 defense because it demonstrated that the district was aware the student was attending a nonpublic school.[4]^, [5]  The parent further asserts that the SETSS services delivered by Alpha were specifically tailored to meet the student's unique needs and, as relief requests that the district be ordered to fund Alpha's SETSS services at the contracted rate of $195 per hour.

In an answer and  cross-appeal, the district argues that the parent's case should be dismissed for lack of subject matter jurisdiction.  Alternatively, the district alleges that the IHO erred in finding that the student is entitled to pendency.[6]  According to the district, pendency is precluded because the student is not entitled to equitable services for the 2022-23 school year, based on the parent's failure to submit a June 1 notice.

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]).[7]  "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.).[8]  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

As an initial matter, neither party appealed the IHO's findings that the district's failure to implement the student's IESP for the 2022-23 school year or that the district denied the student a FAPE for the 2022-23 school year (IHO Decision at p. 3).  Additionally, neither party appealed the IHO's findings that the parent did not provide a timely request for dual enrollment services to the district for the equitable services (id. at p. 5).  Accordingly, these determinations have become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

A. Subject Matter Jurisdiction

Next, it is necessary to address the issue of subject matter jurisdiction raised by the district in its motion to dismiss and then reasserted in its answer and cross-appeal.  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 on appeal 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 and SROs lack subject matter jurisdiction with respect to pure 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. 25-077; 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]).[9]

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]).

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 [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).[10]  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.

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.[11]

In its answer and cross-appeal, 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."  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]).[12]  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).[13]  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 district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.

B. Deadline to Request Dual Enrollment Services

Turning to that portion of the parent's appeal regarding the June 1 affirmative defense, 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, the parent does not appeal the IHO's findings that the parent failed to comply with the June 1 request provisions or that the district's creation of the March 2022 IESP did not constituted a waiver of the requirement.  However, the parent argues on appeal that the district waived the June 1 defense for the 2022-23 school year by convening a CSE meeting in February 2023 to develop an IESP.  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]).

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.

The IHO held that "the February 2023 IESP [wa]s irrelevant to this inquiry because it was created well after June 1st notice was due for the 2022-2023 school year" (IHO Decision at p. 5).  The IHO was correct insofar as the district's compliance with the annual review requirement and creation of the IESP in February 2023 was not a waiver of the June 1 request requirement in the dual enrollment statue.  However, in her analysis, the IHO failed to address the remaining evidence, which was the district's February 8, 2023 prior written notice which had been entered into the hearing record as an attachment to the district's August 12, 2024 due process response (see IHO Decision; Response to Due Process Compl. Not. at pp. 3-4).  Although the convening of the February 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 February 8, 2023 prior written notice leads to the conclusion that the district intended to arrange for delivery of the services recommended in the IESP to the student starting on February 21, 2023 (id.).

Specifically, the district asserted in its own opening argument before the IHO that there was no obligation to implement the March 2022 IEP; however, the district qualified its statement, noting that that it was required to implement the February 2023 IEP on February 21, 2023 (Dist. Ex. 3 at p. 2).  Indeed, as the parent points out, the February 2023 prior written notice reflects that on February 7, 2023, the CSE convened and the parent "indicated that [she] w[as] placing [the student] in a non-public school, at [her] own expense, and [was] seeking equitable services from the [district]" (Response to Due Process Compl. Not. at p. 3).  The February 2023 prior written notice further stated that the CSE "ha[d] developed an IESP because [the parent] ha[d] indicated that [she] w[ould] be placing [the student] in a private school at [her] expense and [was] requesting equitable services" (id. at p. 4).  The February 2023 prior written notice also stated that "[t]he recommended services w[ould] be put into effect on [February 21, 2023]" (id.).  Further, the communication from the district to the parent in the February 2023 prior written notice that the "recommended services will be put into effect" is without qualification that such receipt would occur only if the district had received a timely written request for services (id.).  In prior cases, this office has held that a prior written notice containing such language as the February 2023 prior written notice contains constituted the district's waiver of the June 1 notice (see, e.g. Application of a Student with a Disability, Appeal No. 24-473).  Accordingly, the district will be held to its own position asserted during the impartial hearing that the district should have implemented the services in the February 2023 IESP, which was the governing IESP during the later portion of the 2022-23 school year.

When an IHO has not addressed the issues raised in a due process proceeding, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims or arguments that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]). Here, I find the case must be remanded to allow the IHO to conduct a Burlington/Carter analysis to determine, under the totality of the circumstances, whether the Alpha's services privately obtained by the parent without the consent of school district officials for the limited period of February 21, 2023 through the end of the 2022-23 school year were appropriate to address the student's needs.  If the IHO finds in the affirmative, the IHO should determine whether equitable considerations favor the parent's claims, including whether the contracted rates charged by Alpha were excessive as the district has alleged.

VII. Conclusion

For the reasons stated above, this matter is remanded to the IHO to use the Burlington/Carter standard to determine if Alpha's SETSS were appropriate to address the student's needs under the totality of the circumstances.  If the IHO finds that Alpha's SETSS were appropriate, then the IHO must determine whether equitable considerations favor the parent for the limited period of February 21, 2023 to the end of the 2022-23 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the IHO's decision, dated January 10, 2025, is modified by reversing that portion which determined that the district did not waive the June 1 defense between February 21, 2023 and the conclusion of the 2022-23 school year;

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

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