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 special education services provided by HLER, LLC (HLER) for the 2023-24 school year.  The appeal must be dismissed.

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 CSE convened on October 31, 2022 to develop the student's IESP and found that the student remained eligible for special education as a student with a learning disability (see Parent Ex. B).[1]  The October 2022 CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS) (id. at pp. 1, 11).[2]   The district informed the parent in writing, via a prior written notice dated October 31, 2022, of the recommendations made by the CSE, noting that the student was parentally placed (id. at pp. 16-18).

On April 27, 2023, an email from the address of parentssubmissions@gmail.com was directed to various email addresses with the district's email domain (Parent Ex. E at p. 2).  The hearing record also contains a letter dated April 27, 2023, with the salutation "Dear Chairperson" and bearing the parent's conformed signature (i.e., "/s/"), which indicated that the parent intended to place the student in a nonpublic school for the 2023-24 school year and requested that the district provide the student with the educational services set forth in an "IEP/IESP" (id. at p. 1).

The parent signed an enrollment agreement with HLER for the provision of special education services to the student, which indicated services would be "provided in the frequency and duration as listed in the last agreed upon IEP/IESP/FOFD" at the rate of $205 per hour for special education services for the 2023-24 school year (Parent Ex. C).[3]  The student began receiving services from HLER on September 14, 2023 (Parent Ex. F ¶ 2).  By letter dated September 26, 2023, the parent's lay advocate notified the district that if it did not provide the student with his recommended services for the 2023-24 school year, the parent would seek funding for private providers at an enhanced market rate (Parent Ex. D).

A. Due Process Complaint Notice

In a due process complaint notice dated May 15, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  The parent asserted that the last time the CSE convened for the student was on October 31, 2022 and that the district failed to provide the student with the services contained in the October 2022 IESP (id. at pp. 1-2).  The parent requested an order of pendency, an award of compensatory education for missed services, and direct funding "at an enhanced rate set by provider" for the privately contracted for special education services (id. at pp. 2-3).

B. Events Post-Dating Due Process Complaint Notice

On August 9, 2024, the district submitted a due process response (see IHO Ex. II).  In its response, the district asserted that it would be raising the June 1 affirmative defense (id. at p. 1).  On September 9, 2024, the district sent a letter to the IHO indicating that the district wanted the parent to appear for the next scheduled hearing date (IHO Ex. VII).[4]  On September 11, 2024, the district submitted a subpoena requesting that the parent appear at the September 18, 2024 impartial hearing (see IHO Ex. III).  On the same day, the IHO ordered the parent to appear at the September 18, 2024 impartial hearing (see IHO Ex. XI).

C. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on September 18, 2024 (Sept. 18, 2024 Tr. pp. 1-19).[5]  During the September 2024 impartial hearing, in admitting the parties' evidence, the IHO noted that the district and parent had conflicting views as to whether the parent had provided the district with a notice by June 1 requesting equitable services, (Sept. 18, 2024 Tr. pp. 9, 13-14).  Due to the parties' differing positions  concerning whether a June 1 letter was sent and received by the district, the IHO notified the parties on the hearing record that she was "going to require someone from the CSE to appear and the [p]arent to appear" and that she would "adjourn this matter to another date [so] both parties can present these witnesses for [the IHO] to make a ruling as to [the submitted] documents" (Sept. 18, 2024 Tr. p. 13).  The matter was adjourned to November 25, 2024 (Sept. 18, 2024 Tr. p. 16).[6]^, [7]

At the November 25, 2024 hearing, the parent testified and a financial administrator from HLER testified on behalf of the parent (November 25, 2024 Tr. pp. 7-20, 29-61).  The district attempted to present a witness to testify about its special education student information system (SESIS) events log, but due to technical difficulties, the district witness was unable to timely sign into the virtual hearing and was precluded from testifying (November 25, 2024 Tr. pp. 4, 9-10).[8]

In a decision dated January 22, 2025, the IHO found that the district asserted the June 1 affirmative defense and demonstrated that no June 1 documentation had been entered into the district's SESIS log (IHO Decision at p. 4).[9]  The IHO noted that she had adjourned the hearing to allow both parties the opportunity to present their June 1 testimony and documentation (id.).  The IHO held that although the parent provided documentation and "testimony as to submitting a June 1st letter" the IHO "d[id] not find this evidence to be credible or persuasive" (id. at p. 5).  The IHO held that because the parent failed to notify the district by June 1, 2023 of her request for public services in the student's nonpublic school, the district "was under no obligation to develop an IESP or implement such services" at the nonpublic school (id.).  The IHO made an alternative finding that in the event it was found that the parent did provide a timely June 1 notification, the parent failed to prove that the services provided by HLER were appropriate to meet the student's unique needs (id.).  The IHO also noted that the district had made a motion to dismiss for lack of subject matter jurisdiction, but the IHO denied the motion because of a temporary restraining order that had been issued for all implementation cases (id. at p. 2).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in allowing the district to raise the June 1 affirmative defense and erred in allowing the district to subpoena the parent.  The parent argues that the IHO's finding that the parent did not send a June 1 notice to the district should be reversed because the IHO exhibited bias and failed to conduct the hearing in a manner consistent with due process.  Regarding the adequacy of the services provided by HLER, the parent argues that the hearing record supports that they were adequate to meet the student's unique needs and that the IHO's alternative finding should be reversed.  The parent requests an award directing the district to pay HLER for the services provided to the student for the 2023-24 school year at the contracted for rate.

In its answer, the district asserts that the parent's appeal should be dismissed because the request for review contains a conformed signature instead of the parent's signature.  The district requests that that the IHO's decision be affirmed.

In a reply, the parent argues that the parent's conformed signature of "/s/" was an acceptable electronic signature and that the parent signed the affidavit of verification and had her signature notarized.  The parent also asserts that the IHO erred in allowing the district to question the parent regarding the June 1 letter.

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]).[10]  "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.).[11]  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. Preliminary Matters

The IHO held that the parent's testimony and evidence was not credible or persuasive (IHO Decision at p. 5).  Neither party appealed the IHO's credibility determinations which have, therefore, become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992 (S.D.N.Y. March 21, 2013).

With regard to the district's argument that the parent's request for review should be dismissed for containing a conformed signature, I note the parent's verification contains the signature of the parent and was sworn to and dated the same date as the request for review.  Thus, the parent's request for review was properly verified.  Under these circumstances, I will exercise my discretion and decline to dismiss the parent's request for review (see 8 NCYRR 279.2[f]; 279.8[a]).

1. IHO Bias

At the outset, I have conducted a thorough review of the hearing record, which included the IHO's account of the proceedings leading up to the hearing on the merits of the parent's claims and I find the parent's claims of bias to be without merit (see September 18, 2024 Tr. pp. 1-19; November 25, 2024 Tr. pp. 1-65; IHO Exs. I-XV).

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]; C.E. v. Chappaqua Cent. Sch. Dist., 695 Fed. App'x 621, 625 [2d Cir. June 14, 2017]).

Generally, unless specifically prohibited by regulation, IHOs are provided with broad discretion, subject to administrative and judicial review procedures, in how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; see Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]).  At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (Letter to Anonymous, 23 IDELR 1073).  State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

On review, the hearing record does not support a finding that the IHO demonstrated bias.  Notably, the parent did not identify any conduct of the IHO's that was related to the instant matter beyond unfavorable rulings. The parent's disagreement with the conclusions reached by the IHO 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]; Application of a Student with a Disability, Appeal No. 13-083).  Further, the IHO's rulings fell within her broad discretion (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *7-*8 [S.D.N.Y. Mar. 30, 2017]).

Here, the parent is correct that the IHO 's scheduling order directed the parties to disclose "[a]ny known or knowable affirmative defense… at least ten business days before the scheduled hearing via email" (IHO Ex. I ¶ 19).  The parent argues that the IHO displayed bias by allowing the district to assert its affirmative defense even though it did not email the parent its intent to raise the June 1 affirmative defense at least ten business days before the scheduled hearing (Req. for Rev. at pp. 4-5; IHO Ex. V).

A review of the hearing record establishes that the district raised the June 1 affirmative defense in its August 9, 2024 due process response and in its September 6, 2024 Exhibit List (IHO Ex. II at p. 1; Sept. 6, 2024 Dist. Ex. List).[12]  The district also emailed the IHO and the parent's advocate on September 11, 2024 that it was "requesting [p]arent be made available for testimony" (IHO Ex. XI).[13]  Considering all three of these communications occurred prior to the impartial hearing and one occurred more than ten business days prior to the hearing, I am in agreement with the IHO's determination that prior to the September 18, 2024 hearing, the "[p]arent was on notice of the affirmative defense, and [p]arent was further on notice with the subpoena request for [p]arent to testify" (IHO Decision at p. 2).  Moreover, the IHO adjourned the impartial hearing for two months to give the parent an ability "to present credible and persuasive evidence that [she] complied with the June 1st requirement" (id.).  The IHO took special care during the September 18, 2024 hearing to explain evidence that would lean toward a finding that the parent had timely sent the June 1 letter to the district (Sept. 18, 2024 Tr. pp. 13-17).  The IHO stated she would weigh the parent's documentation and testimony for "authentication and credibility" (Sept. 18, 2024 Tr. p. 16).  The IHO further instructed both the district and the parent that she wanted the testimony to be "[d]irect, because [she] want[ed] to ask questions to authenticate these documents" (Sept. 18, 2024 Tr. p. 17).

Additionally, during the November 25, 2024 impartial hearing, the IHO precluded a district witness from providing testimony based on the witness' failure to timely appear at the virtual hearing (Nov. 25, 2024 Tr. pp. 5, 9).  The IHO almost precluded the parent from testifying for the same reason, but the parent appeared in time (Nov. 25, 2024 Tr. pp. 5-20).  The parent's advocate called a second witness, a financial administrator from HLER (financial administrator), who the IHO allowed to testify and replaced an affidavit over the district's objections even though it was a different witness than the one the parent originally disclosed (Nov. 25, 2024 Tr. pp. 23-28).[14]^, [15]   These rulings of the IHO do not indicate that the parent was denied due process or that the IHO acted with bias against the parent (see Educ. Law § 4404[2]; 34 CFR 300.514[b][2][i], [ii]; 8 NYCRR 200.5[j]).  Accordingly, my review of the hearing record does not lead me to the conclusion that the IHO exhibited bias against the parent or the parent's advocate such that the parent was prevented from developing the hearing record or was otherwise deprived of a full and fair opportunity to be heard (see Withrow v. Larkin, 421 U.S. 35, 47 [1975] [holding that administrative hearing officers are entitled to "a presumption of honesty and integrity"]; Mr. & Mrs. V. v. York Sch. Dist., 434 F. Supp. 2d 5, 12–13 [D. Me. 2006]).

Even if the IHO had acted improperly, the undersigned has conducted an independent review and as further describe below finds no reason to reach a different conclusion.

2. June 1 Deadline

The hearing record reflects that this student was parentally placed in a nonpublic school, but that the parent was seeking to obtain special education services from the district (see Parent Ex. A).  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, as explained in further detail above, the district notified the parent on August 9, 2024 of its intent to pursue the June 1 affirmative defense in its due process response and again on September 6, 2024 in its exhibit list (IHO Ex. II at p. 1; Nov. 9, 2024 Dist. Ex. List).  The first date of the impartial hearing was September 18, 2024, during which the district discussed that it was attempting to admit District Exhibit 8, the SESIS events log, into evidence because "it's relevant to the [d]istrict's claims that'll be made regarding whether the [p]arent has submitted proper notification for services" (Sept. 18, 2024 Tr. pp. 7-8).  The parent's advocate sought to introduce a "June 1st letter dated 4/27/2023" which contained an email dated April 27, 2023 from parentssubmissions@gmail.com to multiple district CSEs with a picture of a PDF icon labeled "Notice of Residence, [student name].pdf" (Sept. 18, 2024 Tr. p. 10; Parent Ex. E at p. 2).

During the September 2024 impartial hearing, the district affirmed that it was asserting that the parent failed to notify the district prior to June 1, 2023 of her intent to seek equitable services from the district (Sept. 18, 2024 Tr. p. 9).  The IHO confirmed that "[t]he [d]istrict [wa]s alleging that there was no notice sent, and then the [p]arent [wa]s alleging that there was notice sent" so the IHO decided "to adjourn t[he] matter to another date [so] both parties c[ould] present these witnesses for [the IHO] to make a ruling as to the[] documents" (Sept. 18, 2024 Tr. p. 13).  When the hearing reconvened on November 25, 2024, the IHO heard the parent's testimony that she submitted a June 1 letter notifying the district that she "intend[ed] to place [her] child in a nonpublic school setting for the year of 2023-2024" and that the parent "gave [the June 1 letter] to [her parent advocate]" (Nov. 25, 2024 Tr. p. 8).  When asked if she had sent the June 1 letter to the district, the parent testified that she had "sent the letter… through the school… and then the school sent it to the [district], [she] th[ought]," before adding she thought she sent it "through like the school or through [her advocate]" and that thus happened last year in May or June, further adding "I don't even remember" (Nov. 25, 2024 Tr. p. 11).

On cross-examination, the parent testified that she received the June 1 letter from her advocate, read it on her phone, signed the letter with an /s/, and returned the signed June 1 letter to her advocate (Nov. 25, 2024 Tr. pp. 12-16).  She testified that she was later able to sign the HLER enrollment contract with her signature through her phone (Nov. 25, 2024 Tr. at  p. 19).  The parent did not testify that she mailed or emailed a signed June 1 letter to the district (Nov. 25, 2024 Tr. pp. 1-65).

The HLER financial administrator testified that he was unfamiliar with the parentssubmissions@gmail.com email address (Nov. 25, 2024 Tr. p. 60).  Additionally, review of the district's SESIS log reveals that there are no entries in the log between November 1, 2022 and June 6, 2024  indicating  the receipt of a June 1 notification from the parent or the parentssubmissions@gmail.com email address, covering the period of time in which the parent alleges she sent the district the April 2023 June 1 letter (Dist. Ex. 8 at p. 1).  It is of interest that the SESIS log's June 6, 2024 entry reads "Parent Notice of Intent/Parentally Placed for [student's name] Set to Final Status" (id. at p. 1).  The SESIS log contains a similar entry of the receipt of a June 1 letter on November 1, 2022 (id. at p. 2).  Considering this evidence, the IHO determined that the district's SESIS logs "showed that a June 1st request had not been entered into the [district]'s system" (IHO Decision at p. 4).

The IHO found that the parent's "testimony as to submitting the June 1st letter and also [p]arent's Exhibit E" were not credible (IHO Decision at p. 5).  The parent failed to appeal the IHO's credibility finding.  Having independently reviewed the hearing record, I find that there is nothing in the parent's evidence or testimony connecting the April 27, 2023 June 1 letter to the icon of the PDF in the April 27, 2023 parentssubmissions@gmail.com email.  I therefore decline to overturn the IHO's finding that the parent failed to meet her burden of proving that she sent the district the April 27, 2023 letter.  Based on the foregoing, there is insufficient basis to disturb the IHO's determination that the parent did not submit a written request for equitable services for the student by June 1, 2023 for the 2023-24 school year and that, therefore, the district was not obligated to provide the student with equitable services for that school year.

VII. Conclusion

Having found that the hearing record contains no evidence that the parent made a written request for equitable services by June 1st preceding the 2023-24 school year as required under Education Law § 3602-c, and that the district timely disclosed its intent to raise its June 1 affirmative defense, the necessary inquiry is at an end.

I have considered the parties' remaining contentions and find that I need not address them in light of my determinations above.

THE APPEAL IS DISMISSED.