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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) son and ordered it to reimburse the parent for her son's private services obtained from The Children's Resources (Children's Resources), for the 2022-23 school year.  The appeal must be sustained in part.

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 of or person in parental relation to 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 detailed facts and procedural history of the case and the IHO's decision will not be recited here in detail. Briefly, a CSE convened on May 5, 2022, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of May 16, 2022 (Parent Ex. B).[1]^, [2]  The CSE recommended the student receive five periods per week of direct, group special education teacher support services (SETSS) and two 30-minute sessions per week of group speech-language therapy (id. at p. 10).  The IESP reflects that, at that time, the student was in first grade and "parentally placed in a private school" (id. at p. 1).

The district sent the parent a prior written notice, dated May 5, 2022, summarizing the CSE meeting and recommendations (Dist. Ex. 3).  Although unclear when, the parent signed a contract with Children's Resources to provide five periods of SETSS per week to the student, at a specified rate of $150 per hour, during the 2022-23 school year, effective September 1, 2022 (Parent Ex. C).[3]  According to a witness from Children's Resources, SETSS began with the student on October 26, 2022 (Parent Ex. D ¶4).

According to a prior written notice, on April 28, 2023, a CSE convened for an annual review of the student's IESP, determined the student remained eligible for special education, and again recommended the student receive SETSS and speech-language therapy  (Parent Ex. F at pp. 1-2).[4]

A. Due Process Complaint Notice and Response

In a due process complaint notice dated August 30, 2024, the parent alleged the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2022-23 school year (Parent Ex. A at p. 1).  In particular, the parent alleged that the district  failed to supply providers and implement the services recommended in the student's May 2022 IESP (id. at pp.1-2).  As relief, the parent requested that the district fund the SETSS provided to the student during the 2022-23 school year "at an enhanced rate" and provide compensatory education for the failure to deliver mandated services to the student in the 2022-23 school (id. at p. 2).

In a response, the district denied the material allegations contained in the due process complaint notice and raised several defenses (Due Process Response at pp. 1-2).  The affirmative defenses raised in the district's response included, in relevant part, that the parent failed to send the district a written request for dual enrollment services by June 1, 2022 for the 2022-23 school year (June 1 defense) and that the parent's claims were barred by the statute of limitation (id. at p. 1).

B. Impartial Hearing Officer Decision

An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on January 31, 2025 and concluded that same day (Tr. pp. 1-28).  In a decision dated February 21, 2025, the IHO ruled the district failed to timely raise a June 1 defense and that the matter was not barred by the statute of limitations (IHO Decision at pp. 4-5).  Substantively, the IHO found the district failed to implement the services recommended in the student's May 2022 IESP and thus failed to provide the student with equitable services in the 2022-23 school year (id. at p. 6).  The IHO then determined that the parent's unilateral placement was appropriate because the student's needs were addressed and the "services provided were reasonably calculated to enable the [student] . . . to receive educational benefits" (id.).  The IHO also found that equitable considerations favored the parent and awarded the parent reimbursement for the contracted SETSS provided to the student in the 2022-23 school year at a "maximum of 5 periods of SETSS a week delivered at the contracted rate of $150 per hour" less any "counsel/legal fees, directly or indirectly paid by the Provider Agency on behalf of the parent" and any payments made during pendency (id. at p. 7).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred in dismissing the district's affirmative defenses and arguing that the affirmative defenses raised by the district bar the parent's award of any relief, specifically the June 1 defense.  Additionally, the district argues the IHO erred in finding the parent proved the SETSS unilaterally obtained for the student were appropriate and the rates were appropriate equitable relief, in part because the SETSS provider did not testify and there was insufficient evidence of what services the student received or how Children's Resources addressed the student's needs.  The district seeks to have the IHO's decision reversed and vacated, in its entirety.

In an answer, the parent argues the IHO's rules were properly applied to the district's affirmative defenses and, therefore, the IHO correctly denied the district's affirmative defenses.  Additionally, the parent alleges that even if the district's June 1 defense was properly raised, it would not prevail because the district bore the burden of establishing the June 1 notice was not sent and it presented no evidence in support of that allegation.  Finally, the parent argues that she proved the SETSS provided to the student was appropriate and therefore, the IHO's decision should be upheld.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[5]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[6]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion - June 1 Deadline

The IHO found the district failed to raise a June 1 defense in compliance with her rules (IHO Decision at p. 5).[7]  The IHO stated in her decision that any affirmative defense was required to be raised prior to the hearing and ruled that the district asserting their intent to pursue a June 1 defense in their due process response and reiterating that intent on its disclosure cover page was "not sufficient to put [the p]arent on notice of the [district]'s intent to assert the" June 1 "affirmative defense" (IHO Decision at pp. 4-5).  The district alleges the IHO erred in finding the district neither timely nor sufficiently raise a June 1 defense.  The district also alleges the IHO erred in failing to dismiss the due process complaint notice on the basis that the parent did not comply with the June 1 deadline.  Finally, the district claims the student was not entitled to equitable services in during the 2022-23 school year under Education Law § 3602-c because the parent did not request them.

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 written 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]).

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]).  An IHO must provide all parties with an opportunity to present evidence and testimony, including the opportunity to confront and cross-examine witnesses (34 CFR 300.512[a][2]; 8 NYCRR 200.5[j][3][xii]).[8]

Here, the IHO's rules contained a section entitled "Affirmative Defenses," which specifically stated "[p]arties shall not raise claims or defenses for the first time at a hearing. Any claims or defense relevant to the hearing, that are not set forth in the due process request, the due process response, a prior written notice, or a timely motion are deemed waived" (IHO Ex. II at p. 4 [emphasis added])[9]  The district's due process response duly stated that the district "intends to pursue all applicable defenses during these proceedings, including but not limited to . . . a defense against any claims or requested relief alleged pursuant to Education Law § 3602-c on the basis that the parent failed to timely send a written request for equitable services by June 1 of the preceding year" (i.e. a June 1 defense) (Due Process Response at p. 1)  In addition to expressly raising the June 1 affirmative defense in the due process response, the district also noted its intention to pursue the June 1 affirmative defense when disclosing its documentary evidence (District Exhibit Disclosure List; IHO Decision at p. 5).[10]  Finally, the district's counsel argued the parent's failure to provide a written request prior to June 1, 2022 at the hearing itself (Tr. pp. 11-12).

Based on the foregoing, the district adequately raised its June 1 defense in compliance with the IHO's rules by specifically stating its intention to pursue it in the due process response.  Therefore, the parent was adequately placed on notice that the district was pursuing a June 1 defense in this proceeding and should respond accordingly.   Accordingly, I find the IHO erred in determining the district failed to properly raise the June 1 defense, and instead the hearing record shows that district complied with the very rules set forth by the IHO.  Having determined the June 1 defense was properly raised, I now turn to whether or not there is sufficient evidence for the parent to overcome the defense.

The IHO noted the district "did not offer any documents into evidence in support of the [June 1] affirmative defense," but the district was not obligated to do so (IHO Decision at p. 5).  However, it was incumbent upon the parent to rebut the district's defense, once raised, and produce the written request for dual enrollment services and/or sufficient evidence of its timely submission to the district.[11]  The hearing record contains no evidence that the parent submitted a written request for equitable services for the student for the 2022-23 school year on or before June 1, 2022 (see Parent Exs. A-I).  Therefore, I am constrained to find that the district was under no obligation to provide services to the student for the 2022-23 school year under the dual enrollment statute and the parent is not entitled to relief on her claims for that school year.

VII. Conclusion

I have considered the parties' remaining contentions and find it is unnecessary to address them in light of my determinations herein, and the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated February 21, 2025, is modified by reversing that portion which concluded that the district failed to properly raise a June 1 defense for the 2022-23 school year.

IT IS FURTHER ORDERED that the IHO's decision, dated February 21, 2025, is modified by reversing that portion which ordered the district to reimburse the parent for the costs of the SETSS from Children's Resources for the student during 2022-23 school year.