New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 608276 - NYC: 255427

FINDINGS OF FACT AND DECISION

Case Number: 255427

Student’s Name ^[1]: REDACTED (Student)

Date of Birth: REDACTED

School District: REDACTED (DOE)

Hearing Requested by: REDACTED (Parent)

Request Date/Date Complaint Filed: 9/7/2023

Date(s) of Hearing: 12/7/2023

Actual Record Closed Date: 12/20/2023

Date of Decision: 12/21/2023

Time Sensitive: No

Hearing Officer: William Yukstas

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/7/2023

For the Student:

REDACTED, Esq. (Parent’s Attorney)

Parent

REDACTED (Educational Director)

For the Department of Education:

Eric Dolce, Esq. (DOE’s Attorney)

INTRODUCTION

On 9/7/2023 Parent filed a Due Process Complaint (DPC), pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1), alleging that the Department of Education (DOE) failed to implement an individualized education service plan (IESP) for the 2023-2024 school year for Student. P-A. Parent seeks an order directing the DOE to fund the Special Education Teacher Support Services (SETSS) outlined in Student’s 12/20/2022 IESP (P-B) a provider obtained by Parent at provider’s contract rate. P-A; Tr. 16. Parent has not located providers for the related services included in Student’s 12/20/2022 IESP – Speech-Language Therapy (SLT) and Occupational Therapy (OT) – and is seeking an award of prospective funding, through related service authorizations issued by the DOE, to providers of Parent’s choosing to cover the 2023-2024 school year. P-A; Tr. 16.

On 12/7/2023, both parties appeared for a due process hearing. At the due process hearing, the DOE made no objection to Student’s entitlement or eligibility for equitable services during the 2023-2024 school year. Tr. 13. DOE did not directly concede this point. However, DOE did not make any argument regarding Student’s entitlement to equitable services or regarding what equitable services Student should receive. Notably, Student’s 12/20/2022 IESP had an implementation date of 1/3/2023 and was in effect at the beginning of the 2023-2024 school year given that Parent timely requested equitable services and the DOE did not generate a new IESP. The DOE failed to present any evidence that the DOE provided, attempted to provide, or took any steps to ensure that Student received equitable services. DOE argued I should deny Parent’s relief because Parent failed to show that Parent’s unilaterally obtained educational services were appropriate and that the rate charged for those services is excessive. Tr. 12-13.

Based upon the record, I find:

1) The DOE failed to provide Student with equitable services for the 2023-2024 school year: and,

2) The relief Parent seeks is appropriate with modification.

PROCEDURAL HISTORY

A due process hearing was held on 12/7/2023. At the hearing, DOE submitted four exhibits. The exhibits were not timely submitted. However, Parent agreed to the admission of D-3, and I accepted D-4 as rebuttal evidence. Tr. 44. The DOE essentially conceded that Student is entitled to equitable services as described in Student’s 12/20/2022 IESP and argued that Parent’s requested relief is inappropriate. Parent submitted nine exhibits, which were accepted into the record. Included in Parent’s evidence were affidavits from Parent (P-H) and from Educational Director (P-I).

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

Student is eligible for equitable services as a student with a disability attending a private school in New York. P-A; Tr. 16; NY Educ. Law § 3602-c. Student is eligible for services as a student with a Speech or Language Impairment. P-B-1.

For the 2023-2024 school year, the DOE took no steps to provide equitable services to Student. Parent unilaterally obtained a private provider to implement SETSS consistent with those outlined in Student’s 12/20/2022 IESP, three periods of SETSS per week, and is seeking that the DOE issue a related service authorization for SLT and OT. Tr. 16.

Parent signed a contract with Provider Agency for SETSS on 8/1/2023. P-E. Parent notified DOE of Parent’s intent to seek equitable services for the 2023-2024 school year on 5/30/2023 via letter from Parent’s Attorney. P-E. ^[2]

Student is receiving individual SETSS from Provider Agency three times a week and is taught by a qualified special education teacher. P-I-3. According to Educational Director, Provider Teacher generates goals and progress reports for Student and regularly communicates with Parent and Student’s private school to coordinate instruction. P-I-3. Educational Director has a master’s degree in early childhood education and supervises the Provider Teacher. P-I. Educational Director testified that Student is making educational progress due to the SETSS Student receives and continues to require such services. P-I-3.

Student’s 12/20/2023 IESP notes that Student has academic strength in reading and comprehension. P-B-1. In writing, Student can generate appropriate sentences and paragraphs but has difficulty in writing cohesive essays. P-B-1. In math, Student has significant delays and struggles with computation. P-B-1. Parent expressed some social-emotional concerns regarding Student’s ability to make and maintain close peer relationships at the 12/20/2023 IESP meeting. P-B-2. Provider Agency’s Progress Report, from 5/11/2023, suggests that Student’s academic performance is weaker than that described in the 12/20/2023 IESP. P-G-1 (noting that Student is decoding at a sixth-grade level, can only write short paragraphs, and is struggling in computation). Overall, the 12/20/2023 IESP and the Progress Report (P-G) both clearly establish that Student requires special education support.

Provider Teacher generated appropriate goals for Student based on the Progress Report. P-G-3. Provider Teacher also implemented interventions in all academic areas to support Student’s academic functioning – guided reading, the use of graphic organizers to support writing, breaking down math problems into smaller parts, and providing additional guided support in math, are some interventions noted by Provider Teacher. P-G-2. Provider Teacher also noted that Provider Teacher is working to try to build Student’s self-confidence and to address Student’s social-emotional functioning. P-G-2.

I will note that I fully credit the testimony of Educational Director (except regarding the rate charged for services) and Parent as DOE presented no contrary evidence and did not impeach or undermine the credibility of either witness.

CONCLUSIONS OF LAW AND LEGAL ANALYSIS

Burden

Except for showing the appropriateness of a unilateral Parental placement, the burden of proof is on the school district during an impartial hearing. 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); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP). 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Dual Enrollment

Under State law, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request 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).^[3] In response, the district must review the request 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). Further, the location district is responsible for implementing the IESP services. Educ. Law § 3602-c(2)(a). 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.” Educ. Law § 3602-c(2)(b)(1). Here, the DOE effectively conceded that it did not offer equitable services to Student for the school year at issue.

Standard for Relief and Compensatory Relief

In general, the SRO has utilized Burlington/Carter analysis, as opposed to a compensatory services approach, when deciding cases in which the Parent alleges that the DOE failed to provide equitable services under NY Educ. Law §3602-c or to implement an IESP. See Application of a Student with a Disability, Appeal No. 23-010 (SRO NY 2023); Application of a Student with a Disability, Appeal No. 21-119 (SRO NY 2021); but see Application of a Student with a Disability, Appeal No. No. 23-065 (SRO NY 2023) (applying compensatory services analysis).

In this matter, DOE argued that I should utilize a Burlington/Carter analysis. I note that utilizing a Burlington/Carter analysis places a burden on the Parent. In due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)(c). The plain meaning of the term “tuition” is the cost paid for enrollment in a school. Additionally, the term “placement” in IDEA cases has also meant placement in a school, not educational services. It is not entirely clear whether the law regarding the burden in New York was meant to address not just cases in which a parent unilaterally places the student in a private special education school but also failure-to-implement IESP cases. ^[4]

There is some contradiction in applying a Burlington/Carter analysis in a case such as the one at hand. Despite the DOE’s failure to provide equitable services to Student, Parent must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or the Parent must forgo the services pending the outcome of the litigation. Burlington seems to suggest this is inappropriate as it notes, “[t]he Act was intended to give [] children [with disabilities] both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.” Burlington v. Dep’t. of Educ., 471 U.S. 359, 372 (1985). Despite these issues in applying Burlington/Carter to this case, I will follow the analysis below regarding the educational services that Parent obtained. I will follow a compensatory services analysis for the related services that Student is entitled to receive but that Parent has not been able to locate a provider for.

Prong I

DOE presented no evidence that it offered or provided equitable services to Student for the school year at issue. While DOE did not explicitly agree that Student was eligible for equitable services, the DOE also noted that there was no objection to Student’s eligibility, did not present any evidence to suggest that Student is not eligible or entitled to equitable services, and did not rebut any of the allegations regarding Student’s eligibility contained in Parent’s DPC. Accordingly, the DOE failed to meet its prong one burden.

Prong II

When following Burlington/Carter, the SRO has suggested that a Parent may satisfy prong two by demonstrating that the services obtained by Parent are the same as those the DOE agrees it was required to provide Student. Application of a Student with a Disability, SRO 21-119 *12 (“Here, the appropriateness of the SETSS delivered to the student by [provider] during the 2020-21 school year is not seriously in dispute in this matter as it is the same type of service which the district agreed during the impartial hearing that it was required to provide.”). Here, Provider Agency provided SETSS to Student. While Student’s IESP indicated that SETSS should be provided in a group, Provider Agency serviced Student on a one-to-one basis. I find that this distinction does not make the SETSS that Parent obtained inappropriate in this case.

In general, in IDEA cases, under prong two, Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate." Gagliardo, 489 F.3d at 112. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. Gagliardo, 489 F.3d at 112 (internal citations omitted).

In this matter, Parent hired a trained teacher to serve Student. P-I-3. This teacher addressed Student’s academic needs and Student experienced some academic progress as a result. P-G. There is no real dispute that the privately obtained services are substantially the same as those that the DOE agrees Student was entitled to receive except that Parent obtained one-to-one services instead of group services. I find that this does not negatively affect the appropriateness of the SETSS services in this case. Improved academics can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). Student received SETSS in an individual setting. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006) (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001). Provider Teacher formulated individual goals for Student. In reviewing all the evidence, the weight of the evidence establishes that Student’s individual special education needs were addressed by the unilaterally obtained services and that the instruction offered was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364.

Overall, I find that Parent has met their burden in proving that the SETSS Parent obtained offered an educational program which met Student’s needs under prong two of the Burlington/Carter standard.

Prong III

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, DOE argues that the rate that Parent’s SETSS provider funding should be capped at $125 per hour based on a general SETSS market analysis. Tr. 43; D-3. Educational Director testified that the Provider Agency charges $225 per hour for SETSS. P-I-2. Educational Director’s affidavit generically stated that this rate includes “one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs.” P-I-2. Somewhat bizarrely, Educational Director testified that Provider Agency has been contracted to provide related services of SLT and OT to Student but had not secured those services for Student. Tr. 36-37. I will note that Provider Agency is providing Student with a trained and qualified teacher; however, Provider Teacher is not certified to provide special education to students as old of Student. Tr. 36.

I cannot assign significant weight to the market analysis introduced by the DOE. D-3. It is not affirmed, no one involved in its preparation testified, and its contents have no specific connection to this case. It is filled with assumptions and qualifications. It also notes that numerous specific factors would affect the general market rate. D-3-12. However, I cannot assign any weight to the claims of the Educational Director regarding the rate charged. Educational Director gave only vague testimony regarding the rate. In addition, Provider Agency contracted with Parent to provide related services but has, so far, failed to provide those services to Student. While this, obviously, does not bear on the rate, I find that it is an equitable factor weighing against full reimbursement. In addition, Provider Agency is not utilizing a properly qualified teacher to instruct Student. Given the difference in the proposed rates between the market study, $125, and what Parent is seeking, $225, I am awarding funding for SETSS at $175 per hour. Given everything I have noted here, I am reducing the award to $175 per hour as the market analysis notes that its proffered market rate, of $125 per hour, may not be accurate in certain areas and if a student is receiving individual services instead of group services.

Compensatory Services

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” Sch. Comm. of Town of Burlington, Mass., v. Dep’t of Educ. of Mass., 471 U.S.359, 374 (1985); Carter, 510 U.S. at 15-16. “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015) (citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P., v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 N.2 (2d Cir. 2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more — they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place,” and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE.

Here, Student was eligible for equitable services. Parent argued that the appropriate level of equitable services for Student was set forth in the 12/20/2023 IESP. DOE did not object to this contention and did not present any evidence to the contrary. Student is entitled to a related service authorization for two thirty-minute sessions of SLT per week and one thirty-minute session of OT per week for the 2023-2024 school year. Because there is no evidence that Student received this service, I am ordering a bank of SLT and OT as compensatory education to cover the 2023-2024 school year.

In Application of a Student with a Disability, Appeal No. 22-145 (SRO 2022), the SRO noted, with some dismay, that calculations of the length of a school year length that exceed 36 weeks are incorrect. Accordingly, I will grant relief based on a 36-week 10-month school year.

Findings

After a full review of the record generated at hearing, my findings of fact are as follows:

1) Student is entitled to receive educational services through an IESP for the 2023-2024 school year;

2) The educational services described in the 12/20/2023 IESP are appropriate for Student;

3) DOE failed to provide equitable services to Student; and,

4) Parent’s proposed relief is appropriate with modifications noted below.

Considering the foregoing, the DOE has failed to establish that Student was provided a FAPE on an equitable basis for the 2023-2024 school year.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The DOE shall fund the following services for the entirety of the 2023-2024 school year:

a. 108 hours of Special Education Teacher Support Services (SETSS), direct service, by a provider of the Parent’s choosing at a rate of up to $175 per hour.

b. 36 hours of Speech-Language Therapy, group service, in English, through a related service authorization to a provider of Parent’s choosing (any SLT provided by the DOE during the 2023-2024 school year will count against this bank).

c. 18 hours of Occupational Therapy, individual service, in English, through a related service authorization to a provider of Parent’s choosing (any OT provided by the DOE during the 2023-2024 school year will count against this bank).

2. If Parent paid for any of the services described above, DOE must reimburse Parent for the cost of the services described above upon submission of proof of payment.

3. The DOE shall directly fund the SETSS provider selected by Parent only after receipt of (1) invoices for services rendered, (2) session notes for each service (at least weekly session notes), and (3) a sworn affidavit from each provider that the services described in the invoices were actually rendered.

4. To the extent such services, as described in Paragraph (1) above, are not provided to the student by 9/8/2025 any remaining services shall expire.

SO ORDERED.

DATED: 12/21/2023

/William Yukstas/ (signed electronically)

Impartial Hearing Officer

William Yukstas

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. DPC 9/7/2023 (6 pages)

B. IESP 12/20/2022 (8 pages)

C. TDN 8/21/2023 (2 pages)

D. Notice of Residence to DOE 5/30/2023 (2 pages)

E. Contract 8/1/2023 (2 pages)

F. Provider Credentials 11/29/2023 (1 page)

G. Progress Report 5/11/2023 (3 pages)

H. Affidavit of Parent 12/4/2023 (3 pages)

I. Affidavit of Educational Director 12/1/2023 (4 pages)

DOE EXHIBITS

3. Parental Placement Notice 4/18/2023 (1 page; DOE)

4. AIR Independent Market Analysis October 2023 (25 pages; DOE)

IHO EXHIBITS – N/A

Footnotes

[1] Personally identifiable information is listed in Appendix A, “Redaction Identification Page,” and will be removed prior to public distribution. Generic titles are used throughout this decision.

[2] DOE Attorney argued, without reference to any authority, that this notice was improper because it came from Parent’s Attorney instead of Parent. I find no merit in this argument.

[3] There is some conflicting authority about how to address the notice requirement in NY Educ. Law § 3602-c(2); i.e., whether it is properly considered as a jurisdictional issue or an affirmative defense for the DOE to raise. See Application of a Student with a Disability, SRO #23-018 (treating the June 1 deadline as an affirmative defense that the DOE waives if not raised at the hearing and suggesting that DOE may elect to provide services through an IESP regardless of whether the June 1 deadline is met); but see Application of a Student with a Disability, SRO #23-036 (suggesting that the June 1 deadline may be a jurisdictional issue). Parent provided a June 1 notice to the DOE on 5/30/2023. P-D.

[4] To be clear, NY Educ. Law § 3602-c cases concern students who are placed in private schools but those are not the “unilateral” special education placements contemplated by the IDEA. Instead, NY Educ. Law § 3602-c confers additional rights to students whose parents put them in non-public schools and ensures that they receive special education services while attending those schools.