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 the decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to reimburse the parent for the costs of her daughter's unilaterally obtained special education teacher support services (SETSS) delivered by the Study Center, Inc. (Study Center) for the 2024-25 school year.  The appeal must be sustained.

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[a]).  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

In this matter, the evidence in the hearing record regarding the student's educational history is sparse.  Briefly, a CSE convened on June 13, 2022, and having found that the student remained eligible to receive special education as a student with a learning disability, developed an IESP for the student with a projected implementation date of June 22, 2022 (June 2022 IESP) (see Parent Ex. B at p. 1).[1]^, [2]  The June 2022 CSE recommended that the student receive three periods per week of SETSS in a group to address her needs (id. at p. 4).[3]

Evidence in the hearing record reveals that, on February 26, 2024, the student was discharged from the school district because she had received a "High School Regents Diploma" (Dist. Ex. 9).

A. Due Process Complaint Notice

By due process complaint notice dated December 4, 2024, the parent, through an attorney, alleged that the district failed to offer the student a free appropriate public education (FAPE) and "equitable services" for the 2024-25 school year (see Parent Ex. A at pp. 1-2).  Initially, the parent indicated that the June 2022 IESP was the last program developed for the student; the IESP included "sufficient and adequate services" to address the student's "academic, social and emotional issues"; the IEP would "enable the student to receive meaningful education benefits"; and the IEP offered the student an "appropriate education" (id. at p. 1).  The parent sought an order that "would make the IESP and the services recommended therein the [s]tudent's educational program for the 2024-2025 school year" (id.).

Next, the parent indicated that she had not "received any other educational program other than the IESP," and the district had not provided any "providers" to implement the services for the 2024-25 school year (Parent Ex. A at p. 1).  As a result, the parent indicated that she had to obtain providers "on her own" to deliver services to the student (id.).  In light of the foregoing, the parent asserted that the district failed to provide "adequate special education and related services" to the student for the 2024-25 school year (id. at p. 2).  More specifically, the parent noted that the district failed to "develop an appropriate educational program" and failed to "provide service providers" for the 2024-25 school year (id.).

As relief, the parent requested an impartial hearing to establish the student's pendency services, and to issue an order "awarding all services recommended on the IESP for the entire 2024-2025 school year, with any services that require[d] adjustment to reflect the student's age to be adjusted accordingly" (Parent Ex. A at p. 2).  The parent also sought an order allowing funding to pay the student's providers or agencies for the delivery of services set forth in the IESP, "or awarded on any other basis, for the 2024-2025 school year at the full rate each provider or agency charge[d]" (id.).  In addition, the parent sought compensatory educational services based on the district's failure to provide services to the student (id.).

In a response to the parent's due process complaint notice, dated December 10, 2024, the district denied the parent's material allegations, notified the parent of its intention to assert numerous defenses, including any applicable defenses pursuant to Education Law § 3602-c, and asserted that the IHO lacked subject matter jurisdiction to adjudicate the claims in the parent's due process complaint notice (see generally Dist. Resp. to Due Proc. Compl. Not.).

B. Impartial Hearing Officer Decision

On May 1, 2025, the parties proceeded to, and completed, an impartial hearing before an IHO with the Office of Administrative Trials and Hearings (OATH) (see Tr. pp. 1-32).  In the district's closing statement, the district representative stated, in part, that the student was not entitled to receive any award in this matter because, based on the evidence presented, she had received her "high school diploma" and had been "discharged" from the school district in February 2024 (Tr. p. 25).  The parent's attorney refuted the district's assertion, pointing to a progress report in the hearing record, which, according to the representative, indicated that the student was in 11th grade, and thus, had not graduated (see Tr. pp. 28-29).[4]

In a decision dated July 22, 2025, the IHO initially addressed threshold matters, including the issue of subject matter jurisdiction and the district's motion to dismiss based on the grounds that the student had graduated and received a high school diploma prior to the 2024-25 school year at issue (see IHO Decision at pp. 3-5).  The IHO found that she had subject matter jurisdiction, and then denied the district's motion to dismiss, noting that she was "unable to determine whether the [s]tudent was not enrolled during the school year at issue" (id. at pp. 4-5).  Next, the IHO addressed pendency (id. at p. 5).  Here, the IHO found that the student's June 2022 IESP formed the basis for pendency services (id., citing Dist. Ex. 8 and Parent Ex. B).

Turning to the merits of the parent's claims, the IHO concluded that the district failed to provide the student with "services on an equitable basis" by failing to implement the student's July 2023 IESP (IHO Decision at pp. 5-7).  With regard to the parent's unilaterally-obtained SETSS, the IHO found that the parent sustained her burden to establish that the "service provider" was appropriate and the "placement provide[d] an educational benefit designed to meet the [s]tudent's unique needs" (id. at p. 7).  The IHO also found that the SETSS provider had "identified the [s]tudent's weaknesses and ha[d] structured the sessions to work on the [s]tudent's weaknesses" (id., citing Parent Ex. H).  In addition, the IHO noted that the SETSS provider had developed goals for the student in writing (see IHO Decision at p. 7).  As a result, the IHO found that the student was entitled to receive SETSS for the entire 10-month school year, and ordered the district to fund the costs of three hours per week of SETSS at a rate not to exceed $195.00 per hour to the parent's selected provider, less any payments made for such services pursuant to pendency and upon submission of invoices and a provider affidavit to the district (id. at pp. 7-8).  The IHO also indicated that, to the extent that the ordered services were not delivered by the end of the 2024-25 school year, any remaining services expired in three years from the date of the decision (id. at p. 8).

IV. Appeal for State-Level Review

The district appeals, alleging that the IHO erred by finding that the student was eligible to receive special education because the student—who turned 19 years old during the 2024-25 school year—had graduated and was discharged from the district in February 2024, almost one year prior to the parent's attorney filing the due process complaint notice.  In addition, the district argues that more than half of the parent's documentary evidence in the hearing record did not refer to the student in this matter, but to another student entirely, and the parent did not testify in this matter.  Next, the district contends that the IHO erred by finding that the student was entitled to equitable services because the parent failed to timely request the same by June 1st, noting that the parent's documentary evidence on this issue did not refer to the student in this matter, but to another student.  The district also asserts that the IHO erred by finding that the parent's unilaterally-obtained SETSS were appropriate, and moreover, the parent's documentary evidence relevant to such analysis did not refer to the student in this matter, but to another student.  Additionally, the district contends that the IHO did little to no analysis of the SETSS, as the parent failed to present the SETSS provider to testify or any other individual even indirectly involved in delivering the student's services.  To the extent that the parent presented an administrator from the agency, the district asserts that the witness's testimony was not sufficient and did not refer to the student in this matter, but to another student.  The district further argues that the hearing record was devoid of evidence about the curriculum or instruction the student received at the nonpublic school where she was parentally placed.  Next, the district asserts that the IHO erred by finding that the parent had a valid contract with the agency to deliver SETSS, as the contract did not refer to the student in this matter, but instead, referred to another student.  The district also asserts that the parent failed to provide a 10-day notice of unilateral placement, and finally, that the IHO erred by awarding pendency services in this matter.  As relief, the district seeks to overturn the relief awarded by the IHO and to annul the pendency order.

The parent, who filed a letter in this matter through her attorney, Shaya Berger, did not prepare or file an answer responding to the district's request for review.  Instead, the parent's attorney indicated in a letter to the Office of State Review, dated September 9, 2025, that "respondents have not and will not be seeking or pursuing any part of the award contained" in the IHO's July 2025 decision now being challenged on appeal.  The parent's attorney also noted that "respondents will not be participating in this appeal."

V. Discussion

Upon review of the evidence in the hearing record, the district is correct in that, other than the parent's due process complaint notice (see Parent Ex. A at p. 1), the student's June 2022 IESP (see Parent Ex. B at p. 1), and a copy of the SETSS provider's teaching credentials (see Parent Ex. G), the majority of the parent's remaining documentary evidence—that is, exhibits C, D, E, F, and H—all refer to another student that is not the subject of the parent's due process complaint notice (compare Parent Ex. A at p. 1, with Parent Ex. C at p. 1, and Parent Ex. D at p. 1, and Parent Ex. E, and Parent Ex. F at p. 1, and Parent Ex. H at p. 1).  This discrepancy is confirmed not only by the fact that the documents reflect the names of two different students, but also because parent exhibits C, D, E, F, and H include the student's district identification number, which does not match the district identification number for the student at issue in the present matter (compare Parent Ex. A at p. 1, with Parent Ex. C at p. 1, and Parent Ex. D at p. 1, and Parent Ex. E, and Parent Ex. F at p. 1, and Parent Ex. H at p. 1).  Therefore, absent any evidence relevant to the student in this matter, as identified in the parent's due process complaint notice, the parent did not sustain her burden to establish the appropriateness of the SETSS delivered—if any were delivered to the student given the district's evidence to the contrary that she had graduated with a high school diploma and was no longer enrolled in the district as of February 2024.  Accordingly, because the IHO's analysis was factually inaccurate according to the evidence presented in the record, the IHO's decision must be reversed in its entirety and the parent's claims dismissed.  I have considered the district's remaining contentions and find I need not address them in light of my determinations herein.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision, dated July 22, 2025, is reversed and the parent's claims in the due process complaint notice are dismissed.