STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-028
Application of a STUDENT WITH A DISABILITY, by her 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:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya M. Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Abigail Hoglund-Shen, 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 her request that respondent (the district) fund the costs of her daughter's private services delivered by Always a Step Ahead, Inc. (Step Ahead) for the 2023-24 school year. The district cross-appeals from that portion of the IHO's decision which denied its motion to dismiss for 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 January 29, 2023, found the student eligible for special education as a student with an other health impairment, and developed an IESP with a projected implementation date of February 5, 2023 (Dist. Ex. 2 at p. 1).[1] The CSE recommended a program of services consisting of three periods per week of group special education teacher support services (SETSS); two 30-minute periods per week each of individual and group occupational therapy (OT), and one 30-minute period per week of counseling services (id. at p. 9).[2] The January 2023 IESP indicates that the student was attending a nonpublic school at the time of the CSE meeting (id. at p. 12).
On November 16, 2023, the parent electronically signed a document on the letterhead of Step Ahead, dated September 1, 2023, acknowledging that the services being provided to the student were consistent with those set forth in the January 2023 IESP and that she would be liable to pay Step Ahead for SETSS and related services should the district not pay for them (Parent Ex. C).[3]
A. Due Process Complaint Notice
In a due process complaint notice dated July 26, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) by failing to "provide adequate special education and related services" for the 2023-24 school year (Parent Ex. A at p. 1). The parent alleged the student required services consistent with the January 2023 IESP for the 2023-24 school year and that the district failed to provide those services, thus denying the student a FAPE (id. at pp. 1-2). The parent further alleged that she was unable to locate providers to deliver the services to the student at the district's rates (id. at p. 1). For relief, the parent requested a pendency hearing and funding for SETSS and related services consistent with the January 2023 IESP at the rates charged by the parent's chosen providers even if higher than the district's standard rates for the 2023-24 school year (id. at p. 2). The parent also requested relief in the form of compensatory education for services the student did not receive but was entitled to receive (id.).
In a due process response dated October 7, 2024, the district generally denied the parent's allegations and asserted that it intended to pursue defenses of, among other things, a failure by the parent to request services by June 1 of the preceding school year under Education Law § 3602-c (see Due Process Response at pp. 1-2).
B. Impartial Hearing Officer Decision
As described in greater detail below, an IHO from the Office of Administrative Trials and Hearings (OATH) issued a decision after an impartial hearing convened on November 14, 2024 (Tr. pp. 1-41). The IHO denied the district's motion to dismiss for lack of subject matter jurisdiction and dismissed the parent's due process complaint notice with prejudice for failure to comply with the June 1 notification requirement of Education Law § 3602-c (IHO Decision at pp. 4-5).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in dismissing her due process complaint notice for failing to comply with the June 1 notification requirement of Education Law § 3602-c. The parent argues that the district's development of the January 2023 IESP amounted to a waiver of the notification requirement and that the IHO's interpretation did not comport with the language of Education Law § 3602-c. The parent further argues that she is not required to notify the district annually of her request for services. For relief, the parent seeks direct funding for SETSS and OT at the enhanced rates provided by Step Ahead.
In an answer with cross-appeal, the district first seeks affirmance of the IHO decision on the issue of the June 1 affirmative defense as it properly raised the defense prior to and during the hearing and the parent failed to rebut the district's assertion that the parent failed to comply. The district also argues in the alternative that the parent did not meet her burden to prove that the unilaterally obtained services placement were appropriate for the student and that equitable considerations do not favor the parent's request for an award of funding. The district cross-appeals the IHO's denial of its s motion to dismiss for lack of subject matter jurisdiction, asserting that the parent does not enjoy a federal right to file a due process claim for a failure to implement an IESP.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
At the outset it is necessary to address the issue of subject matter jurisdiction raised by the district in its cross-appeal. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district raised the argument at the IHO hearing in a motion to dismiss, which went unaddressed in the IHO's decision.
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. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-574 Application of a Student with a Disability, Appeal No. 24-572; Application of a Student with a Disability, Appeal No. 24-564; Application of a Student with a Disability, Appeal No. 24-558; Application of a Student with a Disability, Appeal No. 24-547; Application of a Student with a Disability, Appeal No. 24-528; Application of a Student with a Disability, Appeal No. 24-525; Application of a Student with a Disability, Appeal No. 24-512 Application of a Student with a Disability, Appeal No. 24-507; Application of a Student with a Disability, Appeal No. 24-501; Application of a Student with a Disability, Appeal No. 24-498; Application of a Student with a Disability, Appeal No. 24-464; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-460; Application of a Student with a Disability, Appeal No. 24-441; Application of a Student with a Disability, Appeal No. 24-436; Application of the Dep't of Educ., Appeal No. 24-435; Application of a Student with a Disability, Appeal No. 24-392; Application of a Student with a Disability, Appeal No. 24-391; Application of a Student with a Disability, Appeal No. 24-390; Application of a Student with a Disability, Appeal No. 24-388; Application of a Student with a Disability, Appeal No. 24-386).
Under federal law, all districts are required by the IDEA to participate in a consultation process with nonpublic schools located within the district and develop a services plan for the provision of special education and related services to students who are enrolled privately by their parents in nonpublic schools within the district equal to a proportionate amount of the district's federal funds made available under part B of the IDEA (20 U.S.C. § 1412[a][10][A]; 34 CFR 300.132[b], 300.134, 300.138[b]). However, the services plan provisions under federal law clarify that "[n]o parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school" (34 CFR 300.137 [a]). Additionally, the due process procedures, other than child find, are not applicable for complaints related to a services plan developed pursuant to federal law.
Accordingly, the district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the 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]).[6]
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).[7] 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 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).[8] 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 as 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).[9]
Consistent with the district's position that New York law has never granted due process rights for IESP implementation claims or enhanced rates 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]).[10]
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.
Based on the foregoing, the district's argument that the matter should be dismissed based on subject matter jurisdiction is rejected and I decline to disturb the IHO's finding on this issue.
B. June 1 Deadline
I now turn to the issue of the June 1 notification requirement of Education Law § 3602-c. 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]).
In her decision dated December 4, 2024, the IHO summarized the position of the parties, noting, in pertinent part, that the district argued the student was not entitled to receive special education services for the 2023-24 school year because the parent did not comply with the notice requirements of Education Law § 3602-c and had not provided any proof that she had complied with the requirement (IHO Decision at p. 4). The IHO noted that that the parent's advocate acknowledged that the parent could not locate the email in which the parent purportedly requested equitable services from the district, but the advocate argued it was the district's burden to prove the June 1 defense (id.). The IHO properly rejected the parent's argument that the district failed to prove its affirmative defense, noting that the parent has the burden to prove a timely request for services by June 1 and that the parent's failure to do so was an admission that the parent did not timely request services (IHO Decision at p. 7, citing Application of a Student with a Disability, Appeal No. 23-114 and Application of a Student with a Disability, Appeal No. 23-118).[11]
The IHO summarized her findings of fact after a "full review of the record" (IHO Decision p. 4). The IHO found that the parent had "provided no evidence of a timely (or any) request" for equitable services to rebut the district's June 1 defense (id.). The IHO summarized the parent's testimony, noting that the parent was unable to recall the name of the agency she hired to implement services, could not recall the date she signed the contract with the agency, and testified inconsistently with the documentation in the record as to those allegations (id. at pp. 4-5). The IHO noted that the parent testified she was aware of the requirement to submit a request for services prior to June 1 and that the parent believed she had sent a letter by email to the district, but the parent could not recall who she sent the request to at the district or when it was sent (id. at p. 5). The IHO noted she asked the parent at the hearing to review her personal emails to locate the email and the parent was unable to find an email requesting equitable services (id.). The IHO also noted that she gave the parent's advocate an additional two weeks after the conclusion of the impartial hearing to locate the parent's proof of compliance with the June 1 notification requirement and they did not submit any further documentation (id.).[12] The IHO concluded that the parent was not a credible witness based on the unreliability of the parent's testimony, her lack of solid recollection of any of the relevant facts, and because her testimony was contradicted elsewhere in the record (id.).
The IHO also summarized the legal requirements that govern Education Law § 3602-c, including that it 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 (IHO Decision at p. 7). The IHO explained that pursuant to the statute, a parent must request equitable services from the district prior to June 1 for each year they request services (id.).
The IHO concluded that compliance with the June 1 notification requirement of Education Law § 3602-c was dispositive and that the parent did not submit credible evidence of a timely written request for equitable services by June 1, 2023 (IHO Decision at p. 9). The IHO held that the district timely raised the June 1 affirmative defense prior to and during the hearing (id.). The IHO found the parent's arguments that she did not have to comply with the statue "unavailing" (id.). The IHO held that even though the January 2023 IESP was still current at the start of the 2023-24 school year, this did not absolve the parent of her statutory requirement to submit a written request for equitable services annually prior to June 1 (id.). The IHO also rejected the parent's argument that the district waived the June 1 requirement by its conduct of purportedly providing the student with counseling services (id.). The IHO determined there was not sufficient proof of a "clear and unmistakable waiver" because only the parent testified regarding the district providing counseling services, the IHO discounted the parent's testimony as not being credible, and the parent neglected to offer any additional corroborating evidence to substantiate that allegation (id.).
Upon my independent review of the hearing record, I have determined that the IHO relied on the proper legal standards to support her conclusion that the parent failed to comply with the June 1 notification requirement of Education Law § 3602-c, that the decision also demonstrates that the IHO carefully recited and considered the testimonial and documentary evidence presented by both parties, and carefully marshalled and weighed the evidence in support of her conclusions. The IHO also found the parent's testimony not credible, and generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). Here, there is nothing in the hearing record to support a contrary conclusion. I find that the IHO in this matter conducted a thorough and well-reasoned analysis of the relevant evidence and controlling authority and, accordingly, adopt her findings of fact and conclusions of law as my own.
VII. Conclusion
Having concluded that there is insufficient basis to overturn the IHO's decision, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with an other health impairment is not in dispute (see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]).
[2] The term SETSS is not defined in the State continuum of special education services (see NYCRR 200.6), and, as noted in prior State-level administrative decisions, the term is not used anywhere other than within this school district, a static and reliable definition of "SETSS" does not exist within the district, and, unless the parties and the hearing officer take the time to develop a record on the topic in each proceeding, it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047).
[3] Step Ahead has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] 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]).
[5] 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 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). 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.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[6] 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]).
[7] The district did not seek judicial review of these decisions.
[8] 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.
[9] On November 1, 2024, Albany County Supreme Court 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]).
[10] 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, 23-121; Application of a Student with a Disability, 23-069; Application of a Student with a Disability, 23-068). The guidance document is no longer available on the State's website, thus, a copy of the August 2024 rate dispute guidance has been added to the administrative hearing record.
[11] Although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove the nonexistence of a notice (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]).
[12] The hearing record contains an email from the IHO to the parties' representatives notifying them the record would close December 4, 2024 (Email dated December 3, 2024).