STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-027
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Shehebar Law P.C., attorneys for petitioner, by Ariel A. Bivas, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Emily A. McNamara, Esq.
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 his request that respondent (the district) fund the costs of his son's private services delivered by Alpha Student Support (Alpha) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss the parent's claim based upon, among other things, 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 June 1, 2023, found the student eligible for special education as a student with a speech or language impairment, and formulated an IESP for the student for the 2023-24 school year with a projected implementation date of June 15, 2023 (Parent Ex. B).[1], [2] The CSE recommended that the student receive four periods per week of direct, group special education teacher support services (SETSS), one 30-minute session per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, one 30-minute session per week of individual counseling services, and one 30-minute session per week of group counseling services (id. at pp. 10-11).[3]
On September 4, 2023, the parent signed a "Parent Service Contract" with Alpha which recited the SETSS and related services recommended in the June 2023 IESP (Parent Ex. C at p. 1). Pursuant to the terms of the contract, Alpha agreed to "make every effort to implement the recommended services mentioned above with suitable qualified providers for the 2023-24 school year" (id.). The contract specified that "SETSS/SEITS" were to be provided at a rate of $195.00 per hour; however, the contract did not identify the rate for the related services (id. at p. 2).
The student attended a nonpublic school for the 2023-24 school year where he received SETSS delivered by Alpha (Parent Exs. D; F at p. 1).
In a due process complaint notice, dated July 12, 2024, the parent alleged that the district failed to offer the student a free appropriate public education (FAPE) for the 2023-24 school year by failing to implement the special education services recommended in the June 2023 IESP (Parent Ex. A at p. 2). The parent asserted that the district had an obligation to ensure that the student had an appropriate program by the start of the school year (id.). Having no success securing SETSS and related services providers at the district's rates, the parent unilaterally secured his own providers to work with the student at an enhanced rate (id.). The parent further asserted that if the district maintained that it did provide the student a FAPE or an appropriate program for the 2023-24 school year, the parent reserved the right to challenge the appropriateness of any recommended placement, as well as the student's entire IESP (id.).
For relief, the parent requested an order of funding or reimbursement for the SETSS and related services provided by the parent's unilaterally obtained provider at an enhanced rate (Parent Ex. A at p. 2). Further, the parent also requested compensatory education for "any services that were mandated but not provided" due to the district's failure to implement the recommended services (id.).
The district filed a due process response denying the material allegations contained in the due process complaint notice and asserting that the district intended to pursue a motion to dismiss the parent's claims on the grounds that they were not ripe and the IHO lacked subject matter jurisdiction to adjudicate the parent's claims (Response to Due Process Compl. Not. at p. 1). The district further asserted that it intended to "pursue all applicable defenses during th[e due process] proceedings, including . . . 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 school year, as required by New York State Education Law §3602-c(2)" (id.).
An IHO was appointed by the Office of Administrative Trials and Hearings (OATH). By a motion to dismiss, dated August 30, 2024, the district asserted that the due process complaint notice should be dismissed on the grounds that the IHO lacked subject matter jurisdiction to adjudicate the parent's claims and ripeness (IHO Ex. I). The parent submitted an opposition to the motion to dismiss (IHO Ex. II).
An impartial hearing was held on September 5, 2024 (Tr. pp. 1-28). At the outset, the parent confirmed that his requested relief was limited to direct funding of SETSS provided to the student at an enhanced rate during the 2023-24 school year together with a bank of speech-language therapy and counseling services for which the parent was unable to locate a provider during the school year (Tr. pp. 6-7). The IHO then addressed the district's motion to dismiss (Tr. p. 7). The IHO stated that her determination would be more fully addressed in her written decision, but she had reviewed the documents and identified that the motion was based on a recent regulation that applied only to due process complaint notices filed on or after July 15, 2024 (id.). Since the due process complaint notice was filed prior to that date, on July 12, 2024, and since, in her opinion, State guidance issued in August of 2024 did not "give proper notice" and "was unfair," she denied the motion (id.).
In a final decision dated December 2, 2024, the IHO first revisited the district's motion to dismiss the appeal based on a lack of subject matter jurisdiction and ripeness and denied the motion's "jurisdictional objections" (IHO Decision at p. 4). The IHO stated that she was not aware of any case law that stood for the proposition that she did not have jurisdiction over such cases prior to July 15, 2024 (id.). As to the district's assertion that the parent's claims relating to the 2023-24 school year were not ripe, the IHO concluded that the matter was filed in connection with a school year preceding the due process complaint notice, and consequently the matter was ripe (id.).
Turning to the substantive issues, the IHO determined that the district failed to provide the student a FAPE during the 2023-24 school year as the record contained no evidence that the district implemented the mandated services (IHO Decision at p. 6).
Next, the IHO ruled that the burden of production and persuasion lies with the district to come up with an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that the student would have been but for the denial of a FAPE (IHO Decision at p. 8). The IHO concluded that the hearing record demonstrated that the district failed to offer any compensatory services for the student (id.). The IHO further determined that the evidence in the hearing record failed to demonstrate that the student was receiving services that met his special education needs (id.). According to the IHO, the parent's only witness, Alpha's secretary, possessed no substantive knowledge of the services provided to the student (id.). Alpha's progress report failed to explain the provider's methodologies, how the provider's instruction addressed the student's challenges, and what, if any, actual progress was made by the student (id.). Based on the foregoing, the IHO denied the parent's requested relief (id.).
IV. Appeal for State-Level Review
The parent appeals, asserting that the unilaterally-obtained services delivered by Alpha were appropriate. The parent argues that the Alpha progress report identified the student's struggles and deficits and how the student had progressed as a result of the provided services. The parent further argues that the IHO erred by not awarding compensatory speech-language therapy and counseling services for the district's failure to implement such services recommended in the June 2023 IESP. As such, the parent argues that he is entitled to direct funding of four periods of SETSS per week at an hourly rate of $195, together with a bank of compensatory hours of speech-language therapy services and counseling services at a reasonable market rate to be determined by the district's implementation unit.
The district answers and cross-appeals, asserting that while the IHO improperly failed to apply the Burlington/Carter test to assess the appropriateness of the services recommended to the student during the 2023-24 school year, the IHO correctly denied the parent's requested relief.[4] In addition, the district asserts that the parent's claims are barred because the parent failed to present any evidence to rebut the district's June 1 affirmative defense that was asserted in its response to the due process complaint notice. Finally, the district asserts that the IHO incorrectly denied its motion to dismiss the parent's claims based on a lack of subject matter jurisdiction.
The parent filed an answer to the cross-appeal, asserting that that the unilaterally-obtained SETSS provided to the student were appropriate, the district was effectively attempting to raise the June 1 defense after the impartial hearing, and if considered, the June 1 defense was waived by the district's creation of an IESP on June 1, 2023.[5]
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]).[6] "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.).[7] 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
The district did not challenge the IHO's finding that it failed to provide the student a FAPE for the 2023-24 school year. Accordingly, that determination has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see Bd. of Educ. of the Harrison Cent. Sch. Dist. v. C.S., 2024 WL 4252499, at *12-*15 [S.D.N.Y. Sept. 20, 2024]; M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). Consequently, the threshold issues of the appeal and cross-appeal are whether the IHO had subject matter jurisdiction to address the parent's claims raised in the due process complaint notice, and, if so, whether the June 1 defense was sufficiently raised.[8]
A. Subject Matter Jurisdiction
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]). Subject matter jurisdiction can be raised at any time in the proceedings, including on appeal (see U.S. v. Cotton, 535 U.S. 625, 630 [2002]; Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 733 [2d Cir. 2007] [ordering supplemental briefing on appeal and vacating a district court decision addressing an Education Law § 3602-c state law dispute for lack of subject matter jurisdiction]). Indeed, a lack of jurisdiction "can never be forfeited or waived" (Cotton, 535 U.S. at 630). Here, the district asserted in its motion to dismiss 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 lack subject matter jurisdiction with respect to pure IESP implementation claims.
Recently in several 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. 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 parent would not have a right to due process under federal law; however, the student did not merely have a services plan developed pursuant to federal law, and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).[9]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider enhanced rates claims from parents seeking implementation of equitable services.
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]). State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate 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).[10] In addition, the New York Court of Appeals has explained that students authorized to receive 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.
However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years. Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy. Policy makers have recently attempted to address the issue.
In May 2024, the State Education Department proposed amendments to 8 NYCRR 200.5 "to clarify that parents of students who are parentally placed in nonpublic schools do not have the right under Education Law § 3602-c to file a due process complaint regarding the implementation of services recommended on an IESP" (see "Proposed Amendment of Section 200.5 of the Regulations of the Commissioner of Education Relating to Special Education Due Process Hearings," SED Mem. [May 2024], available athttps://www.regents.nysed.gov/sites/regents/files /524p12d2revised.pdf).[11] Ultimately, however, the proposed regulation was not adopted. Instead, in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over 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" (8 NYCRR 200.5[i][1]). The amendment to the regulation does not apply to the present circumstances for two reasons. First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[12] Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024]). Specifically, the Order provides that pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity
(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24).[13]
Consistent with the district's position that New York law has never granted due process rights for IESP implementation claims or enhanced rate for services and that the preliminary injunction issued by the New York Supreme Court does not change the meaning of § 3602-c, 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]).[14]
However, acknowledging that the question has publicly received new attention from State policymakers, as well as at least one court at this juncture and appears to be an evolving situation, given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter. Further, the position set forth in the guidance document issued in the wake of the emergency regulation, which is now enjoined and suspended, does not convince me that the Education Law may be read to divest IHOs and SROs of jurisdiction over these types of disputes.
Accordingly, the IHO's determination that she possessed subject matter jurisdiction to adjudicate the parent's claim was correct, and the district's cross-appeal requesting that the IHO's denial of its motion to dismiss the parent's due process complaint notice be overturned must be denied.
B. June 1 Deadline
Turning next to the district's arguments raised on appeal with respect to its June 1 affirmative defense, I note that the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
Here, the IHO did not make any ruling with respect to the June 1 affirmative defense (see IHO Decision). Although the district's response to the due process complaint notice includes multiple affirmative defenses including a June 1 defense, the district did not raised the defense or assert any arguments on that point during the impartial hearing (see Response to Due Process Compl. Not. at pp. 1-2). Although the district filed a motion to dismiss on other grounds, the district did not include or otherwise raise the June 1 affirmative defense within the motion (IHO Ex. II). Thus, it is not dispositive that the parent did not further respond by proffering evidence to the IHO at the impartial hearing merely because the district mentioned a possible June 1 defense only in its response to the due process complaint notice and not at any point before the IHO. This proceeding is not unlike one in which the district apparently mentioned the defense in a blanket response to a due process complaint notice, but then similarly failed to properly pursue the defense in its motion to dismiss or otherwise during impartial hearing process (Application of a Student with a Disability, Appeal No. 25-008; Application of a Student with a Disability, Appeal No. 24-582).[15] As such, so much of the district's cross-appeal seeking the dismissal of the parent's claims based on a failure to provide evidence to rebut the district's mention of a possible June 1 affirmative defense in its response to the due process complaint notice is without merit.
Under the facts and circumstances presented herein in which the district failed to pursue the defense in its motion to dismiss nor raise it before the IHO during the impartial hearing, the district, effectively waived the June 1 affirmative defense in this matter. The parent's additional arguments regarding the waiver of the June 1 defense need not be addressed.
C. Framework and Scope of Review
Having considered the threshold issues of subject matter jurisdiction and the June 1 defense, I now turn to the substantive issues. In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the parental placement. Instead, the parent alleged that the district did not implement the student's mandated public services under the State's dual enrollment statute for the 2023-24 school year and as a self-help remedy, he unilaterally obtained private services from Alpha for the student without the consent of school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts which fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under the IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The IHO treated the relief sought by the parent as compensatory education (IHO Decision at pp. 7-8). In support of her treatment, the IHO cited authority for the proposition, that "[u]nder the IDEA, courts can '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. Easy Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015] [citation omitted]. See also Florence Cty. Ch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993), citing Sch. Comm. Of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985) ('[E]quitable considerations are relevant in fashioning relief,' and the court enjoys 'broad discretion in doing so')" (id. at p. 7). However, the IHO did not consider that, within the jurisdictions at issue in the cases cited, the burden of proof on all issues at the hearing lay on the party seeking relief, namely the parent, making the distinction between the different types of relief perhaps less consequential (see Schaffer v. Weast, 546 U.S. 49, 59-62 [2005]). In contrast, under State law in this jurisdiction, the burden of proof has been placed 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 Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 [2d Cir. 2014]; R.E., 694 F.3d at 184-85). In treating the requested relief as compensatory education, it is problematic to place the burden of production and persuasion on the district to establish appropriate relief when the parent has already unilaterally chosen the provider and obtained the services and is the party in whose custody and control the evidence necessary to establish appropriateness resides.
As a practical matter this kind of dispute can really only be effectively examined using a Burlington/Carter unilateral placement framework because the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated industry of independent special education teachers whom parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place. The attempts to resolve such cases that do not use a Burlington/Carter analysis have tended to lead to chaos. All IHOs should use a Burlington/Carter style analysis when deciding cases in which a parent requests a school district to directly fund or reimburse costs incurred by the parent on behalf of a student when obtaining private services without the consent of public school officials.
Accordingly, although the IHO viewed the relief sought as a request for compensatory education (see IHO Decision at pp. 7-8), the parent's request for the costs of the privately-obtained SETSS must be assessed under the Burlington/Carter framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7 [1993]; Burlington, 471 U.S. at 369-70; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[16] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
D. Unilaterally-Obtained Services
Turning to a review of the appropriateness of the unilaterally-obtained services, the federal standard for adjudicating these types of disputes is instructive. A private school placement or, as in this case, private services must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school or services offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" kloo(Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "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., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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). 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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
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. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. The Student's Needs
Although not in dispute on appeal, a brief discussion of the student's needs is necessary to resolve the issue of whether the SETSS delivered by Alpha were appropriate for the student for the 2023-24 school year. The hearing record includes the student's June 2023 IESP, which reflected the results of a May 2023 psychoeducational evaluation which included an administration of a Wechsler Intelligence Scale for Children–Fifth Edition (WISC-V) (Parent Ex. B at p. 1). According to the IESP, the student attained a full-scale IQ of 111 on the WISC-V, which was in the high average range of intellectual functioning (id.). Specifically, the student attained scores in the high average range on the working memory, visual spatial and processing speed indices (id. at pp. 1-2). The student scored in the average range on the verbal comprehension index and scored in the superior range on the fluid reasoning index (id.).
The June 2023 IESP reflected that the student's academic achievement was assessed using the Kaufman Test of Educational Achievement-Third Edition (KTEA-3), which revealed the student scored "significantly below grade level" on the letter and word recognition subtest with a standard score (SS) of 80, reading comprehension subtest with a SS of 72, and spelling subtest with a SS of 71 (Parent Ex. B at pp. 1-2). The student scored above grade level on the math concepts and applications subtest with a SS of 107, math computation subtest with a SS 113, and writing fluency subtest with a SS of 106 (id.). According to the IESP, the student's teacher reported that his reading skills were at a third-grade level and that he read very slowly and was unsure of himself (Parent Ex. B at pp. 2-3). Regarding writing, the IESP indicated the that based on teacher report, the student "did not spell well," could not spell words with more than four letters, and his written expression and grammar were lacking (Parent Ex. B at p. 3). As recorded in the IESP, the student's performance on the KTEA-3 showed that the student wrote good short sentences with adequate grammar, content, spacing, and handwriting; wrote capitals; but inconsistently wrote periods (id.). In addition, the student reversed "b's" and "d's" many times (id.). According to the June 2023 IESP, the student's teacher reported that math was a strength for the student, and he was excited when he did well in math (id.). It was further reported that the student enjoyed going on the computer and playing card games with his siblings (id.). The IESP noted that the student's performance on the KTEA-3 indicated that he was able to add, subtract, and multiply with regrouping; solve algebraic equations with on variable; multiply fractions; and divide a three-digit number by a one-digit number (id.). The student struggled when working with negative numbers, exponents, square roots, decimals, and fractions (id.).
Regarding social development, the June 2023 IESP indicated the student had poor self-esteem and "need[ed] a constant boost" (Parent Ex. B at p. 4). The student's classroom teacher reported the student demonstrated poor social skills, and had very few friends, but liked to join in with class/group activities (id.). The student also was characterized as having a "poor attitude toward school," low self-confidence, anger management challenges, a tendency to seek negative attention, and struggled socially (id.). The student's teacher further reported that the student never completed his homework assignments and often asked for breaks to go out of the room (id.).
The June 2023 IESP noted that according to the psychoeducational report, the student was "generally cooperative, focused, and responsive", and "did not become distracted or annoyed, even on difficult items, but persevered in his work" (Parent Ex. B at p. 4). The evaluator noted that the student gave "mostly negative responses about school," and reported that other students did not say nice things to him and "hit him sometimes" (id. at pp. 4-5). The student reported that he had three friends and his "teachers [we]re not really good and they pick[ed] on him" (id. at p. 5).
The June 2023 IESP reflected that the parent reported that the student had trouble following social cues and was "constantly bullied" and acted "odd amongst his peers" (Parent Ex. B at p. 4). The parent reported that the student often screamed and cried at home and that his behavior did not seem age appropriate (id.). Additionally, the parent expressed concerns that the student easily gave up and became frustrated by his academic challenges (id.). According to the IESP, the parent reported that the student's teacher called home to report that he gave his teachers a "hard time" and avoided more difficult work (id.). The parent further reported that spelling was very difficult for the student and he skipped over it or went very fast (id.). In addition, the IESP noted the parent reported that the student had few friends and did not get invited to play dates, but sometimes played with children in the neighborhood (id.). The parent also reported that the student had "atypical behaviors" and "could benefit from counseling" (id. at p. 5).
The June 2-23 IESP stated that a school liaison reported that the student had a "huge language processing issue. He [was] challenged with reading in school. He also recognize[d] that he [was] delayed which [was] very hard for him" (Parent Ex. B at p. 4).
In terms of physical development, the IESP reflected that the student in good health (Parent Ex. B at p. 5). The student wore glasses and the parent reported he "ha[d] gained a considerable amount of weight in recent years" (id.). The parent reported that they tried to encourage sports and physical activity and the student "[did] not love sports" but enjoyed going to his weekly flag football league (id.).
According to the June 2023 IESP, the parent expressed concern over sensory issues and reported that the student was "constant[ly] touching [] things and people around him" (Parent Ex. B at p. 5). The IESP reflected the results of an OT evaluation conducted in March 2023 due to possible sensory processing difficulties, writing/reading concerns, and visual perceptual challenges (id.). The IESP indicated that based on standardized testing, observation, parent interview, and anecdotes the student did not have any delays in visual motor integration, visual processing, planning, organization, gross motor, or planning for fine motor skills (id.). Occupational therapy intervention was not recommended for the student at that time (id.). As reported on the IESP, the student rode a bike, played ball and liked going on the trampoline (id.).
With respect to the student's management needs, the June 2023 CSE indicated the student learned best when presented when materials were presented visually and with repetition, responded well to incentives, and benefited from frequent praise, encouragement and boosts for his confidence (Parent Ex. B at p. 5). In terms of the effect of the student's needs on his involvement and progress in the general education curriculum, the IESP stated that given the student's delays in reading, writing, and social-emotional domains he would benefit from SETSS and related services so he could progress in the general education curriculum (id.).
Annual academic goals included in the June 2023 IESP aimed to improve the student's decoding and reading fluency, reading comprehension, ability to respond orally or in writing to questions about main idea, setting, plot, characters, and relevant details; respond to questions about reading passages or curriculum-based topics in writing; and ability to respond in writing using extended paragraphs and appropriate writing mechanics (Parent Ex. B at pp. 6-10). Turning to the student's speech-language development, the June 2023 IESP included goals that targeted the student's pragmatic language skills, ability to engage with and maintain interaction with peers, and receptive language skills (id.). The IESP also included goals that targeted the student's social/emotional weaknesses, including goals related to building self-confidence, coping with frustration and understanding boundaries (id.).
The CSE developed an IESP for the student for the 2023-24 school year that recommended weekly services as follows: four periods of SETSS, one 30-minute session of individual speech-language therapy, one 30-minute session of group speech-language therapy, one 30-minute session of individual counseling, and one 30-minute session of group counseling (Parent Ex. B at pp. 11-12).
Additionally, the student's testing accommodations included: all tests administered in a separate location/room no more than 12 students, five-minute breaks for every 30-minutes of testing, tests directions read aloud and re-read, and tests read by a human reader (Parent Ex. B at pp. 12-13).
2. Services from Alpha
Having reviewed the hearing record to identify the student's needs, the inquiry now turns to whether the parent's unilaterally-obtained SETSS from Alpha during the 2023-24 school year provided the student with specially-designed instruction to meet those needs. As noted above, to qualify for reimbursement under the IDEA, parents must demonstrate that the unilateral placement provided instruction specially designed to meet the student's unique needs, supported by services necessary to permit the student to benefit from instruction (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65). Regulations define specially designed instruction, in part, as "adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).
In her decision, the IHO expressed concern that the evidence in the hearing record failed to demonstrate that the unilaterally-obtained SETSS met the student's special education needs (IHO Decision at p. 8). The IHO specifically stated that the progress report did not explain the "provider's methodologies, how the provider's instruction addresses[ed] the [s]tudent's challenges, and what, if any, actual progress was made by the [s]tudent" (id.). In addition, the IHO found that the parent's only witness, Alpha's secretary, had no knowledge of the student (id.).
A review of the hearing record indicates that the parent proffered the testimony of a secretary employed by Alpha and submitted three exhibits about the student's SETSS from Alpha: the SETSS providers' teacher certification credentials, a June 2024 progress report, and an affidavit from the secretary at Alpha (Parent Exs. D; E; F). There were no provider session logs or notes, or affidavit or testimony from the SETSS provider or the student's parents. According to the secretary's testimony, Alpha serviced the student with SETSS for the 2023-24 school year, and the SETSS teacher who signed the progress report was certified to teach students with d grade 1-6 (Parent Exs. D; E).
In the student's June 2024 SETSS progress report, the provider stated the student had "many challenges that cause[d] him to struggle in the domains of reading, comprehension, classroom functioning, writing, and social interactions" (Parent Ex. F at p. 1). The progress report noted that decoding was a struggle for the student (id. at p. 2). According to the SETSS provider, the student had been learning to apply "word attack skills to read new words that [we]re more complex " (id.). The provider reported the student had a "tendency to guess the words , without decoding them" and he "need[ed] to be reminded to point to each letter and use the 'sliding' method, to help him focus on each small detail"(id.). The provider further noted that with "continued encouragement and intervention, [the student had] slowly closed the gap between himself and his peers" (id.).
Regarding decoding skills, the progress report reflected that the student began the year reading "end-of- second-grade texts," and "although he [had] mastered [] basic decoding rules," he struggled "to decode words with complex structures" (Parent Ex. F at p. 2). The progress report stated that the student "made considerable progress with identifying open syllables vs closed syllables insimpler multi-syllabic words" (id.). The SETSS provider reported that in reading the student "ha[d] gone up a grade level with his decoding and [was] now reading third grade level texts independently" (id.). The progress report listed the student's reading goals at the time which were: to apply word attack strategies to decode grade-level irregularly spelled words, self-correct an error while reading a sentence, and read grade-level text (id.).
The June 2024 progress report noted that the student's reading comprehension skills were "not up to par" (Parent Ex. F at p. 2). The SETSS provider stated that the student needed encouragement to listen and pay attention to stories read aloud to him (id.). The provider reported that the student had "learned to visualize the words he[wa]is reading in a simple sentence" and made progress with summarizing a short story (id.). The SETSS progress report listed reading comprehension goals that targeted the student's ability to make predictions and summarize grade level texts and answer higher-order thinking questions (id. at p. 3).
The June 2024 progress report described the student as a student who "struggle[ed] significantly" in the areas of writing and spelling and noted that his skills were "way below grade level" (Parent Ex. F at p. 4). According to the progress report at the beginning of the school year, the student's handwriting was "weak and messy" but improved and it was "now readable"(id.). The student's spelling abilities were "at an end-of-first-grade level, and he [was] now spelling many more complex and basic words" (id.). The progress report concluded that student's writing still included guessed spellings of words, lack of punctuation, and appropriate grammar (id.). The student wrote using short sentences but was not able to respond in full sentences to reading comprehension questions or write paragraphs (id.). The progress report noted writing goals for the student that targeted his ability to use proper punctuation including commas, exclamation points, and question marks; spell 10 grade-level spelling words; answer questions in full sentences; and write a complete paragraph including a topic sentence, supporting details, and a conclusion (id. at pp. 4-5).
According to the June 2024 progress report, math was a strength for the student and the and he could solve all fifth-grade level math expressions including multi-digit addition, subtraction, multiplication and division (Parent Ex. F at p. 4). The student struggled with word problems and understanding the instructions to math worksheets but was reported to be motivated by his accomplishments in math (id.). Math goals included in the progress addressed the students ability to solve a grade-level written word problem independently and read the instructions on a math worksheet and carry out the instructions independently (id.).
Regarding social emotional development, the progress report noted that the student struggled to make friends in "a grade-level manner" (Parent Ex. F at p. 5). The progress report specifically cited that the student asked peers for their snacks in exchange for being their friend (id.). It also noted that the student needed sensory input and his peers "look[ed] down on him" (id.). The student also had trouble making decisions and difficulty playing sports and games with others and frustrated his peers (id.). The progress report listed no annual social emotional or communication goals.
The progress report stated that the student struggled with language and expressing himself, which "cause[d] him to struggle in all the classroom lessons. Because the student ha[d] the understanding that he [wa]s not able to grasp concepts like his peers, this impact[ed] his motivation and determination to learn"(Parent Ex. F at p. 1).
Overall, the evidence in the hearing record does not support a finding that the parent met his burden to prove that the services he unilaterally obtained for the student constituted appropriate instruction specially designed to address the student's unique educational needs. On appeal, the parent argues that contrary to the IHO's findings, the progress report identified the student's struggles and deficits, what the provider did to address them, and the progress the student made in light of the remediation. Additionally, according to the parent, the progress report stated the techniques the provider used which included pre-teaching classroom lessons to motivate the student to participate, simplification, constant motivation in the form of charts, encouraging words and positive reinforcement, and breaking down tasks into small doable steps. The hearing record, while not robust in this regard, does contain some evidence of the strategies and materials the student's provider utilized during the provider's sessions with the student for the 2023-24 school year.
However, notably absent from the hearing record, is evidence regarding the curriculum at the nonpublic school, the student's non-SETSS instruction, and how the SETSS were connected to the instruction provided by the nonpublic school. Without such information, it is not possible to ascertain whether the student received special education support in the classroom to enable him to access the general education curriculum or whether the SETSS delivered to him supported his classroom functioning. Given that, by definition, specially designed instruction is the adaptation of instruction to allow a student to access a general education curriculum so that the student can meet the educational standards that apply to all students (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]), under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate to meet his needs.
Moreover, the hearing record lacks any evidence that the student received speech-language services and counseling despite evidence that the student has demonstrable needs in those areas. Although parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), the program as a whole must still be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances. Here, pursuant to the contract between Alpha and the parent, Alpha agreed to "make every effort to implement the recommended services" in the June 2023 IESP for the 2023-24 school year (Parent Ex. C at p. 1). It is undisputed that Alpha only provided SETSS to the student and did not provide speech-language therapy or counseling to the student for the 2023-24 school year. The parent does not dispute the June 2023 CSE's recommendation of speech-language therapy and counseling for the student, and as described above, the hearing record reflects the student had significant language and social/emotional needs.
Accordingly, given the dearth of evidence concerning how the SETSS supported the student at the nonpublic school and the lack of any evidence showing how the student's speech-language and counseling needs were being addressed, the totality of the circumstances does not demonstrate that the parent met his burden of proving that the unilaterally-obtained services delivered by Alpha were appropriate for the student under the Burlington-Carter standard.
As a final matter, regarding the parent's allegation that the IHO erred by not awarding the parent compensatory speech-language and counseling services, under the circumstances of this case, I find no basis for an award of compensatory education services to make up for gaps in the unilateral programming arranged for by the parents, especially here where the parent entered into a contract with Alpha for such services and there is no further development of the record explaining why such services were not provided.
VII. Conclusion
For the reasons described above, the IHO possessed subject matter jurisdiction to adjudicate the parent's claim and the district effectively waived its June 1 affirmative defense by failing to pursue the defense in its motion to dismiss or during the impartial hearing. Having determined that the parent failed to meet his burden to show that the SETSS Alpha delivered to the student were appropriate, the parent is not entitled to district funding for those services and the necessary inquiry is at an end.
Based on the foregoing determination, I need not consider the parties' remaining contentions.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The hearing record contains two copies of the June 2023 IESP (compare Parent Ex. B, with Dist. Ex. 3). For purposes of this decision, only the parent's exhibit is cited. Also, each of the parent's exhibits contains a cover page. The cover page has not been included in the page count when citing to pages of an exhibit.
[2] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district.
[4]Comm. Of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985); Florence Cty. Ch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[5] The parent miscaptioned the pleading as "Respondent's Answer to Request for Review" (Answer to Cr.-Appeal at p. 1).
[6] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[7] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("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 3602-c," Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available athttp://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.).
[8] The district did not cross-appeal the IHO's ruling that the parent's claim for relief was ripe.
[9] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[10] The district did not seek judicial review of these decisions.
[11] In this case, the district continues to press the point that the parent has no right to file any kind of implementation claim regarding dual enrollment services, regardless of whether there are allegations about rates, which is more in alignment with the text of the proposed rule in May 2024, which was not the rule adopted by the Board of Regents.
[12] A statutory or regulatory amendment is generally presumed to have prospective application unless there is clear language indicating retroactive intent (see Ratha v. Rubicon Res., LLC, 111 F.4th 946, 963 [9th Cir. 2024]). The presence of a future effective date typically suggests that the amendment is intended to apply prospectively, not retroactively (People v. Galindo, 38 N.Y.3d 199, 203 [2022]). The due process complaint in this matter was filed with the district on July 12, 2024 (Parent Ex. A), prior to the July 16, 2024 date set forth in the emergency regulation. Since then, the emergency regulation has lapsed.
[13] On November 1, 2024, the Supreme Court, Albany County, issued a second order clarifying that the temporary restraining order applied to both emergency actions and activities involving permanent adoption of the rule until the petition was decided (Order, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24 [Sup. Ct., Albany County, Nov. 1, 2024]).
[14] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SROs in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-121; Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068). The guidance document is no longer available on the State's website; however, a copy of the August 2024 rate dispute guidance is included in the administrative hearing record as an attachment to the district's motion to dismiss (see IHO Ex. II at pp. 17-27).
[15] Mention of the potential defense in the district's response to the due process complaint was more than sufficient to put the parent on notice that he should be prepared to timely disclose and offer such evidence at the impartial hearing if the district had argued the defense before the IHO during the impartial hearing.
[16] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the special education that the parent obtained from Alpha for the student (Educ. Law § 4404[1][c]).