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 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision denying the district's motion to dismiss for lack of subject matter jurisdiction.  The appeal must be dismissed.  The cross-appeal must be dismissed.

II. Overview—Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to 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, 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 student received special education services as a preschool student with a disability, and on April 2, 2019, a CSE convened and determined that the student was eligible for school-age special education services as a student with a speech or language impairment (see Dist. Exs. 7; 8).[1]  The April 2019 CSE developed the student's "[t]urning five" individualized education services program (IESP) with a projected implementation date of September 4, 2019 at a nonpublic school (Dist. Ex. 7 at p. 1).  The April 2019 CSE recommended that the student receive two 30-minute sessions per week of group speech-language therapy in Yiddish and two 30-minute sessions per week of group occupational therapy (OT) in English (id. at pp. 7, 10).

A Committee on Preschool Special Education (CPSE) then convened on May 1, 2019 to develop an IEP for the remainder of the 10-month 2018-19 school year, and recommended that the student receive five 60-minute sessions per week of group special education itinerant teacher services (SEIT) in Yiddish; two 30-minute sessions per week of group speech-language services in Yiddish; and two 30-minute sessions per week of group OT to be implemented on May 2, 2019 (Dist. Ex. 8 at pp. 3, 12).

On August 29, 2023, the parent signed a contract with Alpha for the provision of SEITS/SETSS services at a rate of $195 per hour for the 2023-24 school year (fourth grade) (see Parent Exs. D; G at p. 1).[2]

A. Due Process Complaint Notice

On July 15, 2024, the parents filed a due process complaint notice alleging that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year and requesting funding at enhanced rates for the speech-language therapy services and OT services recommended in the student's April 2019 IESP (see Parent Ex. A).  The parents informed the district that they were unable to obtain the providers for the student's related services at the district's rate, therefore, they "secured their own providers to work with the student at an enhanced rate" (id. at p. 2).  The parents also requested a compensatory education award for any of the student's missed services (id.).

On August 16, 2024, the district responded to the parents' due process complaint notice which asserted, among other things, that it intended to "pursue a motion to dismiss any and all claims or requested relief regarding implementation of the student's program under New York State Education Law §3602-c on the basis that the Impartial Hearing Officer does not have subject matter jurisdiction" and that the district intended to pursue all applicable defenses including "that the parent failed to timely send a written request for equitable services by June 1 of the preceding school year, as required by New York State Education Law §3602-c(2)" (Response to Due Process Compl. Not. at p. 1).

B. Events Post-Dating Due Process Complaint Notice and Amended Due Process Complaint Notice

The district filed a motion to dismiss the parents' due process complaint notice for lack of subject matter jurisdiction and ripeness on August 30, 2024 (see IHO Exs. V; VII at p. 3).  On September 3, 2024, the parent emailed the parties her opposition to the district's motion to dismiss (see IHO Ex. VII; VIII).[3]  The parents amended their due process complaint notice on October 31, 2024 to clarify that they were seeking funding at enhanced rates for the services recommended in the student's May 2019 CPSE IEP, which included special education teacher support services (SETSS), speech-language therapy, and OT services for the student's 2023-24 school year (Parent Ex. B at p. 1).[4]^, [5]  In the amended due process complaint notice, the parents also requested a compensatory education award for any of the student's missed services (id. at p. 2).

C. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on November 8, 2024, during which the IHO noted that she had not received a copy of the parents' amended due process complaint notice, so the parties agreed to adjourn the hearing until December 10, 2024 (Nov. 8, 2024 Tr. pp. 1-10).[6]  During the November 8, 2024 impartial hearing the district confirmed that it consented to the parents' amendment of their due process complaint notice (Nov. 8, 2024 Tr. p. 6).

Through an email dated November 15, 2024, the district informed the IHO and the parents' attorney that "[t]he [d]istrict intend[ed] to raise the affirmative defense of Education Law § 3602-(c) notice provisions" (IHO Ex. IV).  On November 18, 2024, the district submitted parent subpoenas for the IHO's signature because "[t]he [p]arents [we]re a party to their case with firsthand knowledge and information relevant to the facts at issue" and submitted a supplemental motion to dismiss for lack of subject matter jurisdiction (IHO Exs. II at pp. 3-4; VI).  The IHO gave the parents' attorney the opportunity to respond to the district's subpoena request to which the parents' attorney asserted that the burden of proof was on the district and ultimately the IHO denied the district's subpoena requests on November 25, 2024 (IHO Ex. II at pp. 1-3).

A second impartial hearing convened on December 10, 2024 and concluded the same day (Dec. 10, 2024 Tr. pp. 1-62).  During the December 10, 2024 hearing, the IHO noted that "this case was part of a larger omnibus hearing" and that "[t]here was an [o]mnibus part standing order which said . . . [i]f parties wishe[d] to present an opening statement, the parties shall provide a general written opening statement" and that such "statements shall be included in disclosures for each case" (Dec. 10, 2024 Tr. p. 15; see IHO Ex. III at p. 2).[7]  Because neither party had submitted a written opening statement, both parties waived their opening statements (Dec. 10, 2024 Tr. p. 16).  The IHO confirmed with the parents' attorney that the parents waived their claims for compensatory education services for speech-language therapy and OT and was only seeking funding for SETSS at a rate of $195 per hour (Dec. 10, 2024 Tr. pp. 16-17).  Although the reasons were unclear, the district agreed that the May 2019 IEP created by the CPSE for the conclusion of the student's final year in preschool were the services that the student should receive for the 2023-24 school year rather than the IESP (Dec. 10, 2024 Tr. pp. 17-18; compare Dist. Ex. 7, with Dist. Ex. 8).  During the district's closing statement it argued that since there was no evidence of  a June 1 letter sent, the student was not entitled to equitable services and pointed out that the district notified the IHO and the parent of its intent to raise the June 1 affirmative defense via an email dated November 15, 2024 (Dec. 10, 2024 Tr. pp. 46, 56-57).[8]  The IHO noted that she received an email from the district dated November 15, 2024 which indicated that the district intended to raise the June 1 affirmative defense and the parents' attorney confirmed receipt of the district's November 2024 email (Dec. 10, 2024 Tr. pp. 56-57).  Following the district's closing statement and the parents' closing statement, the parents' attorney requested permission to enter the parents' June 1 letter into evidence, to which the district objected (Dec. 10, 2024 Tr. pp. 58-59).  The IHO denied the parent attorney's request to enter the June 1 letter into the hearing record because the parent failed to comply with the rule that it be disclosed at least five days prior to the impartial hearing (Dec. 10, 2024 Tr. pp. 59-60).

In a decision dated February 10, 2025, the IHO found that the parents failed to show that they provided the district with a timely request for dual enrollment services on or before June 1 pursuant to New York State Education Law § 3602-c (IHO Decision at p. 3).  As part of her decision, the IHO issued a pendency order (id. at p. 9).  The IHO declined to issue rulings as to the appropriateness of Alpha's services or equitable considerations based on the parents' failure to comply with the June 1 deadline (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in refusing to admit evidence over the district's objection regarding a June 1 notice.  The parent further argues that the district failed to timely raise the June 1 affirmative defense, and that the IHO erred in precluding the parent from submitting the June 1 letter into the hearing record.  The parent requests that additional evidence be considered regarding the parents' obligation to request services under the dual enrollment statute on or before June 1.

In an answer with cross-appeal, the district requests that the IHO's ruling be upheld and that the parent's request to admit her June 1 letter for the first time on appeal into the hearing record be denied.  The district argues in its cross-appeal that the parent's case should be dismissed for lack of subject matter jurisdiction.

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).  Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).  Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[9]

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252).  In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).  "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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., 694 F.3d at 184-85).

VI. Discussion

A. Preliminary Matters

1. Subject Matter Jurisdiction

As a preliminary matter, 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 with 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]).[10]

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).[11]  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.[12]

In its answer with 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, nor has there ever been, a right to bring a complaint for 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]).[13]  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).[14]  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. June 1 Deadline

Turning next to the parent's arguments on appeal with respect to the request for dual enrollment services on or before June 1, I note that  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]).

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, the parent asserts numerous theories regarding why she should not have to show that she complied with the statute regarding the parental requests for dual enrollment services, none of which are availing. The parent should have been prepared to timely disclose the request in accordance with the rules governing due process proceedings.  First, the administrative record shows that the district notified the parent's attorney and the IHO that it intended to raise the June 1 affirmative defense through its August 16, 2024 response to the parents' due process complaint notice (Response to Due Process Compl. Not. at p. 1).  Then, on November 15, 2024, the district emailed the parent's attorney and the IHO reiterating the district's plan to raise the June 1 defense (IHO Ex. IV).  Most importantly, during the December 10, 2024 impartial hearing, the district attorney carried through with the plan to raise the defense and argued that there was no evidence that the parent had sent the district a request for dual enrollment services and therefore failed to comply with Education Law § 3602-c (Tr. p.  46).  The IHO correctly found the parent was on notice that the June 1 defense would be raised as the district asserted the defense in its November 15, 2024 email and the parent was given the opportunity to present evidence before the December 10, 2024 hearing to that effect (IHO Decision p. 8).  The district's assertion of the June 1 affirmative defense during the impartial hearing showed that it did not waive its defense.

As part of the parent's appeal, the parent argues that the IHO erred by failing to admit the parent's June 1 letter into the hearing record, attaching a copy of the document to the request for review and asking that it be entered into evidence.  The hearing record makes clear that the IHO issued an order for the omnibus cases (omnibus order) which clearly directed that the "[d]isclosure of exhibits, including written opening, and witness lists shall occur via email five (5) business days before the scheduled hearing date" (IHO Ex. III at p. 2).  This prehearing order is consistent with the rules for disclosure of evidence in due process proceedings in both State and federal regulation (8 NYCRR 200.5[j][3][xii]; see 34 CFR 300.512[a][3]). During the beginning of December 10, 2024 impartial hearing, the parent's attorney offered six exhibits as evidence, which the IHO admitted into evidence (Tr. pp. 11-14).  None of these six exhibits was the parent's June 1 letter (id.).  It was not until after the district's closing statement wherein the district alleged that "there was no June 1st letter sent[] [s]o therefore, the . . . child is not entitled to equitable services, given the failure to send that June 1st letter as required for the services being requested" that the parent's attorney attempted to introduce a June 1 letter (Tr. pp. 46, 51, 58-59).  During the impartial hearing, the parent's attorney admitted that he had received the district's November 15, 2024 email which "stat[ed] that the [d]istrict intend[ed] to raise the affirmative defense of Educational Law 3602-c" but argued that the district failed to affirm in their November 15, 2024 email that they were raising the affirmative defense, only "say[ing] [they] intend to raise it" (Tr. p. 57).  Having reviewed the November 15, 2024 email, which sufficiently conveyed that the district was asserting the June 1 notice provisions, I find the parent's attorney's argument to be unavailing (see IHO Ex. IV).

The parent's attorney further argued that the parent's initial disclosures were made before November 15, 2024 "because the case was really supposed to be heard prior . . . [a]nd so, when the [d]istrict sent th[e] e-mail on November 15th, we never supplemented our disclosures" (Tr. p. 58).  I find this point to be unpersuasive.  First, as noted above, the district first indicated that it would raise the defense in August 2024 in its response to the due process complaint notice, which was long before the impartial hearing was scheduled.  Next, according to the IHO's omnibus order, the parties had until five days before the impartial hearing to disclose their evidence.  The district's November 15, 2024 email was sent to the parent's attorney three weeks before the December 10, 2024 impartial hearing, giving the parent's attorney ample time and notice to supplement the parent's disclosure.  The parent's attorney received the district's November 15, 2024 email notifying the parent of the district's intent to assert the June 1 affirmative defense and the parent's attorney elected not to so do, but attempted to submit the June 1 letter at the end of the hearing (Tr. p. 57, 58).  The district permissibly objected to the parent's attempted submission of additional documentation after the five-day deadline for disclosure of evidence had passed and the hearing had almost concluded (Tr. p. 59).  The IHO acted within her discretionary authority to preclude the parent's late disclosure and submission of evidence "at the close of the hearing after evidence has already been submitted" (Tr. pp.  59-60).

Here, the IHO correctly found that the parent failed to adhere to the five-day disclosure requirement for evidence after the district informed the parent two occasions well before the impartial hearing that it intended to pursue its defense, and after the IHO reminded the parties of the five-day disclosure rule. Accordingly, the parent failed to show that she complied with the provision governing parental requests for dual enrollment under Education Law § 3602-c because the parent failed to timely enter evidence into the hearing record establishing that she made a timely request for equitable services (IHO Decision at pp. 8-9).

VII. Conclusion

For the reasons described above, the district's cross-appeal arguing that the IHO lacked subject matter jurisdiction to adjudicate the parent's claim is without merit.  Further, there is no reason to disturb the IHO's determinations that district raised the June 1 defense, that the parent failed to comply with the evidentiary disclosure requirements and, as a result that the hearing record lacked evidence of a written request to the district for dual enrollment services in accordance with Education Law § 3602-c.  Consequently, the parent is not entitled to reimbursement or funding for the student's special education services for the 2023-24 school year and the necessary inquiry is at an end. 

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.