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 daughter's private services delivered by EDopt, LLC (EDopt) for the 2023-24 school year.  The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss based on a lack of subject matter jurisdiction.  The appeal must be dismissed.  The cross-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 parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.  Briefly, a CSE convened on December 11, 2017, determined that the student was eligible to receive special education as a student with a speech or language impairment, and developed an IESP for the student (see Dist. Ex. 3).[1]  The December 2017 CSE recommended that the student receive five periods per week of special education teacher support services (SETSS) in a group setting, two 30-minute sessions per week of individual speech-language therapy, and two 30-minute sessions per week of individual occupational therapy (OT) (id. at pp. 6-7).[2]

The hearing record does not include any subsequent IESP for the student.

On October 9, 2023, the parent electronically signed a contract with EDopt for the provision of services to the student "[a]s per the last agreed upon IEP/IESP/FOFD" for the 2023-24 school year (Parent Ex. C at p. 3).  In a letter to the district dated October 31, 2023, "Prime Advocacy, LLC, duly Authorized o/b/o Parent," notified the district that it had failed to assign a provider to deliver services to the student for the 2023-24 school year and that, therefore, the parent intended to unilaterally obtain the services "through a private agency at an enhanced market rate" (Parent Ex. D).

The hearing record indicates that EDopt provided SETSS to the student during the 2023-24 school year (see Parent Exs. G-H).

A. Due Process Complaint Notice

In a due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and/or equitable services for the 2023-24 and 2024-25 school years (see Parent Ex. A).  The parent asserted that the district failed to convene CSE meetings in advance of the 2023-24 and 2024-25 school years and consequently failed to develop current and appropriate programs of services for the student (id. at p. 2).  The parent also asserted that the district failed to identify providers to deliver the services it last recommended to the student during the 2023-24 school year (id.).  The parent sought an order directing the district to fund the costs of the SETSS for the student at the provider's enhanced rates together with an award of a bank of compensatory education services to make up for any mandated services not provided to the student during the 2023-24 school year (id. at p. 3).  The parent also sought an order for the entirety of the 2024-25, requiring the district to provide the student with the services and supports mandated by the CSE at the provider's enhanced rate "to ensure that the parent has the capacity to implement the ordered services in a timely and continuous manner" (id.).

In a due process response dated September 10, 2024, the district generally denied the parent's allegations set forth in the due process complaint notice and indicated its intention to assert multiple affirmative defenses, including the parent's failure to provide a written request to the district for equitable services by June 1 as required by Education Law §3602-c (Response to Due Process Compl. Not.).  The district attached to its due process response a supplemental notice that referenced the December 11, 2017 CSE meeting (id. at p. 3).

B. Impartial Hearing and Decision

The matter was assigned to an IHO from the Office of Administrative Trials and Hearings (OATH).  In a motion to dismiss dated January 8, 2025, the district sought an order dismissing the parent's due process complaint notice on the grounds that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims, and that the claims pertaining to the 2024-25 school year were unripe for adjudication (IHO Ex. I).  On January 31, 2025, the district advised the IHO that it intended to assert a June 1 affirmative defense under Education Law § 3602-c (IHO Ex. II). The parent submitted a February 11, 2025 answer to the district's motion to dismiss (IHO Ex. III).

An impartial hearing convened on February 18, 2025 and concluded on the same day (Tr. pp. 1-43).  At the impartial hearing, the IHO noted that she had ordered pendency per the parent's request, which was based on the December 2017 IESP (Tr. p. 5; see Interim IHO Decision on Pendency).  The parent withdrew her claims relating to the 2024-25 school year (Tr. p. 11).

In a decision dated March 17, 2025, the IHO dismissed the parent's claims with respect to the 2023-24 school year based on the fact that the parent failed to produce documentary evidence that she sent a written notice to the district requesting equitable services for the student for the 2023-24 school year to rebut the district's evidence that no notice had been received by the district (IHO Decision at p. 6).  In addition, the IHO found that the parent did not provide credible testimony that she submitted the required notice prior to June 1, 2023 (id. at p. 7).  The IHO found the parent's testimony to be vague and that she vacillated between stating that she did not know when she emailed the June 1 notice and that it was "maybe May" (id. at p. 6).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in concluding that she failed to provide the required notice prior to June 1 of the 2023-24 school year.[3]  The parent argues that the district failed to meet its burden to prove the affirmative defense.  Specifically, the parent asserts that the district failed to produce a witness to verify the details of the events log submitted by the district to prove that it did not receive written notice of a request for equitable services for the student in advance of the 2023-24 school year.  As such, the parent argues that the log should not have been entered into evidence or, in the alternative, it should have been afforded little evidentiary weight.  Next, the parent argues that the district waived the June 1 defense by consciously choosing to omit an end of service date in the December 2017 IESP, thereby suggesting a continuation of the mandated educational services.  Finally, the parent argues that she testified that she emailed a timely June 1 notice to the district, whereas the district failed to provide any testimony substantiating their affirmative defense in any manner.

In an answer with cross-appeal, the district initially asserts that the IHO correctly dismissed the parent's claims due to the lack of evidence that the parent requested equitable services by June 1 prior to the 2023-24 school year.  The district argues that it properly raised the affirmative June 1 defense and the parent provided no convincing evidence to rebut the district's evidence.  In addition, the district argues that, because the December 2017 IESP was several years old, it could not demonstrate a waiver of the notice requirements for equitable services for the 2023-24 school year.

As for its cross-appeal, the district argues that, in the event the parent's claims are permitted to proceed, that the parent did not meet her burden to prove that the unilaterally obtained services were appropriate for the student, in that the parent failed to provide any testimony from any of the individual service providers regarding the appropriateness of the SETSS provided to the student by EDopt.  Further, the district argues that equitable considerations weigh against the parent's requested relief.  In addition, the district argues that the SRO should vacate the pendency award because pendency does not attach to a request for equitable services. Finally, the district argues that the IHO should have dismissed the due process complaint notice because she lacked subject matter jurisdiction to consider the parent's claims.  The district asserts that there is no federal right to file a due process complaint notice regarding services recommended in an IESP.  In addition, the district argues that State law limits subject matter jurisdiction to issues "relating to compliance of the school district of location with child find requirements, including evaluation requirements."  Finally, the district asserts that State law does not confer IHOs with jurisdiction to consider enhanced rate claims from parents seeking implementation of equitable services.

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]).[4]  "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.).[5]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

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

VI. Discussion

A. Subject Matter Jurisdiction

Initially, it is necessary to address the issue of subject matter jurisdiction raised by the district in its motion to dismiss and then reasserted in its answer and cross-appeal.  Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]).  The district argues on appeal that there is no federal right to file a due process claim regarding services recommended in an IESP and New York law confers no right to file a due process complaint notice regarding IESP implementation.  Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

In numerous recent decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No.  25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512; Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).

Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]).  However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]).  Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.

Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the New York Education Law affords 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]).[6]

Concerning students who attend nonpublic schools, Education Law § 3602-c 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 notice 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).[7]  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.

After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c to provide 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.  In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district.  As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[8]

In its answer and cross-appeal, the district contends that the Education Law does not provide a right to bring a complaint for the implementation of IESP claims or enhanced rate services.  Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:

parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services.  Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.

("Special Education Due Process Hearings - Rate Disputes," Office of Special Educ. [Aug. 2024]).[9]  However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.

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 whether 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 that provides that 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 utilize the administrative due process procedures.  Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought injunctive relief of a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6).  The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 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" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[10]  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 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.

As the district's jurisdictional argument is without merit, its related contention that "pendency does not attach to a request for equitable services" is also without merit (see, e.g., Application of a Student with a Disability, Appeal No. 25-035 [rejecting "the district's argument that the student [wa]s not entitled to pendency because she sought equitable services pursuant to Education Law § 3602-c"]; Application of a Student with a Disability, Appeal No. 24-579 [rejecting the district's argument "that the student was not entitled to pendency services because the IHO . . . lacked subject matter jurisdiction to order the district to maintain the student's pendency services"]).

B. June 1 Deadline

I now turn to the crux of the parties' dispute; namely, whether the IHO erred in determining that the student was not entitled to equitable services for the 2023-24 school year based on the parent's failure to provide a written request for services prior to June 1, 2023.

The State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).

Here, as the IHO noted, the district presented as evidence a copy of its events log for the student, which did not reflect receipt of a written request for equitable services for the student prior to June 1, 2023 (Dist. Ex. 4; see IHO Decision at pp. 6-7).[11]  Moreover, the hearing record includes no documentary evidence of the parent's compliance with the June 1 deadline.[12]  Although the parent testified in response to questioning by the IHO that she sent the requisite notice "maybe on May" 2023 (Tr. p. 25), the IHO found such testimony unreliable (IHO Decision at p. 7), and, given the absence of documentary evidence to corroborate the parent's testimony, I defer to the IHO's credibility determination (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995] [holding that a hearing officer's credibility judgments are entitled to deference on appeal "unless the non-testimonial, extrinsic evidence in the record would justify a contrary conclusion or . . . the record[,] read in its entirety[,] would compel a contrary conclusion"]; see also P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076).  Therefore, I find no basis to overturn the IHO's finding that the parent failed to provide the district with the required written request for equitable services prior to June 1, 2023 (see, e.g., Application of a Student with a Disability, Appeal No. 25-028 [affirming the IHO's finding that the parent failed to comply with the June 1 requirement where, although the parent testified that she sent the requisite notice by email, she could not locate the email or recall pertinent details]; Application of a Student with a Disability, Appeal No. 24-599 [affirming the IHO's finding that the parent failed to comply with the June 1 requirement, although the parent testified that he sent the requisite notice, because the IHO found the parent's testimony unreliable and "the hearing record lack[ed] a compelling reason to disturb the IHO's credibility findings"]).

Next, I will address whether the district impliedly waived the June 1 affirmative defense.  A district may waive a procedural defense through its actions (see N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991] [stating that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct"]; see also Application of the Bd. of Educ., Appeal No. 18-088).  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.Y. Tele. Co., 930 F.2d at 1011).

Here, the parent offers no support for the theory that the lack of an end date on the December 2017 IESP reflected the district's intent to provide the services recommended therein indefinitely.  While the delivery of services reflects a "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP leading up to or during the school year at issue would, without more, constitute a waiver.[13]  For example, to the extent a district was navigating two requirements in tension with one another, i.e., to conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a],  4402[1][b][2]; 8 NYCRR 200.4[f]) versus awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]), the occurrence of the meeting might not clearly or unmistakably reflect the district's waiver of the June 1 requirement.  Certainly then, an IESP developed more than five years prior to the school year at issue would also not constitute a waiver.

Thus, the evidence in hearing record does not support a finding that the district impliedly waived the June 1 defense through its conduct (see, e.g., Application of a Student with a Disability, Appeal No. 24-404 [finding that the district's creation of an IESP for the student, months into the school year, did not constitute an implied waiver of the June 1 defense]; cf. Application of the Bd. of Educ., Appeal No. 18-088 [finding that the district impliedly waived the June 1 defense where the district created an IESP for the student and began providing services at the student's nonpublic school after the June 1 deadline]).

Based on the foregoing, I find that the district was not obligated to provide the student with equitable services for the duration of the 2023-24 school year.

VII. Conclusion

I have considered the parties' remaining contentions and find it unnecessary to address them in light of my determinations herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS DISMISSED.