STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-058
Application of a STUDENT WITH A DISABILITY, by his parents, 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 PC, attorneys for petitioners, by Ariel A. Bivas, 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which denied their request that respondent (the district) fund the costs of their son's private services from Alpha Student Support Services (Alpha) for the 2023-24 school year. The district cross-appeals from the IHO's failure to determine that the private services were not appropriate for the student. The 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, an initial CSE convened on May 8, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the 2023-24 school year with an implementation date of September 1, 2023 (Dist. Ex. 1).[1] The CSE recommended the student receive five periods per week of direct group special education teacher support services (SETSS) to be conducted in a classroom in Yiddish, two periods per week of SETSS to be conducted at a separate location in Yiddish, two 30-minute sessions per week of individual speech-language therapy to be conducted at a separate location therapy room in Yiddish, one 30-minute session per week of group speech-language therapy to be conducted at a separate location therapy room in Yiddish, two 30-minute sessions per week of individual occupational therapy (OT) to be conducted at a separate location therapy room in English, and one 30-minute session per week of group counseling services to be conducted at a separate location therapy room in English (id. at p. 12).[2]
On July 9, 2023, the student's mother signed a "Parent Service Contract" with Alpha where Alpha agreed to provide SETSS at an hourly rate of $195 and speech-language therapy at an hourly rate of $250 to the student during the 2023-24 school year (Parent Ex. C).
In a due process complaint notice, dated July 15, 2024, the parents alleged that the student had a language impairment affecting his ability to learn (Parent Ex. A at p. 1). According to the parents, the CSE recommended that the student continue the programming in the May 2023 IESP (id.). The parents allege that the district failed to implement the SETSS and related services recommended to the student in the May 2023 IESP and thereby denied the student a FAPE for the 2023-24 school year (id. at p. 2). The parents alleged that they could not secure SETSS and related services provider at the "DOE rate," the parents unilaterally secured their own providers at an "enhanced rate" (id.). As relief, the parents sought direct funding/reimbursement of the SETSS and related services mandated in the May 2023 IESP at enhanced rates and, although the school year in question had already concluded, sought to "reserved the right to seek compensatory educational services" as well as other claims that may arise during the proceeding (id. at pp. 2-3).[3] The district submitted a response generally denying the allegations set forth in the due process complaint notice and asserting multiple affirmative defenses including the parents' failure to provide a written request to the district for equitable services by June 1 of the upcoming school year as required by Educ. Law § 3602-c[2] (Dist. Resp. to Due Proc. Compl. Notice).
An IHO was appointed by the Office of Administrative Trials and Hearings (OATH). In a motion to dismiss dated September 5, 2024, the district requested that the IHO dismiss the parents' due process complaint notice on the grounds that the IHO lacked subject matter jurisdiction to adjudicate the parents' claims, and that the claims were unripe for adjudication (Dist. Mot. To Dismiss). An impartial hearing convened on October 30, 2024 (Tr. pp. 1-22). At the hearing, the IHO acknowledged that the district's pre-hearing disclosure indicated that it was asserting an affirmative defense that the parents failed to request special education services for the student for the 2023-24 school year by the June 1 deadline under Education Law § 3602-c (Tr. p. 4). The parents objected to its timeliness because the disclosure was filed seven days before the hearing rather than ten days as set forth in the IHO's standing order (Tr. p. 4; IHO Ex. I). The IHO determined that the district was not precluded from raising the June 1 defense given the fact that the IHO's standing order provided that affirmative defenses raised less than 10 days before the hearing "may" be precluded, and in light of SRO decisions finding that June 1 defenses first raised in a party's opening statement at an impartial hearing were timely (Tr. pp. 4-5). The June 1 defense was addressed by the district and the parents in their respective closing arguments (Tr. pp. 17-20). In addition, citing a prior decision of the SRO, the IHO also denied the district's motion to dismiss based on a lack of subject matter jurisdiction (Tr. p. 8).
In a decision dated December 18, 2025, the IHO first recited her decision to deny the district's motion to dismiss based on a lack of subject matter jurisdiction which she rendered at the impartial hearing (IHO Decision at p. 4). Next, she concluded that by raising the June 1 defense in its disclosures, and again during closing argument, the district had timely raised the affirmative defense (id. at p. 8). The IHO then determined that there was no evidence in the record suggesting that the parents provided the district with a request for dual enrollment services by June 1, 2024 or that the district had somehow waived the June 1 defense through its conduct (id.). As such, the IHO concluded that the parents were not entitled to funding of the provided equitable services due to their failure to comply with the June 1 deadline for requesting dual enrollment services (id. at pp. 8-9). In light of her determination, the IHO decided that she would not reach the issue of whether the special education services obtained by the parents were reasonable and appropriate and dismissed the parents' claims with prejudice (id. at p. 9).
IV. Appeal for State-Level Review
The parents appeal. Initially, without elaboration or analysis, the parents challenge the IHO's determination that the district timely raised the June 1 defense. Thereafter, the parents assert that even if the district did timely raise the June 1 defense as the IHO concluded, the defense "was unfounded" given the factual circumstances. The parents argue that, as evidenced by the September 2023 IESP, the student was about to turn five years of age and, as a preschool student, his special educational program and needs had been governed by an IEP. Accordingly, the parent's contend the district had notice of the student and the recommended services because the student's educational programming was subject to an IEP immediately prior to the 2023-24 school year, and the district committed to implementing the May 2023 IESP on September 1, 2023.
In further support of their argument that the IHO erred, the parents submit a proposed exhibit which they request be considered on appeal. The exhibit consists of a prior written notice dated May 25, 2023, which was provided by the district to the parents. The parents argue that it should be considered on appeal because the district failed to provide a response to the due process complaint notice and that the prior written notice would have likely accompanied that pleading. Moreover, the parents assert that the prior written notice evidenced that the district acknowledged that the parents had indicated that they intended to place the student in a non-public school at their expense and that they were seeking equitable services from the district for the 2023-24 school year. Finally, the parents assert that the district "should have known better to have raised the June 1 defense" since it had the prior written notice in its possession. Based on the foregoing, the parents assert that the June 1 notification requirement was satisfied by the district's prior written notice.
As relief, the parents request that reversal of the IHO's decision and that the matter be remanded to the IHO for a hearing on the merits or that an order be issued granting direct funding of the SETSS and speech language therapy recommended in the May 2023 IESP at the providers' rates, and awarding a bank of compensatory hours of occupational therapy and counseling services at a reasonable market rate.
In an answer and "cross-appeal," the district argues that the additional evidence submitted by the parents should be rejected because it was available to the parents at the time of the hearing. In addition, the district argues, in pertinent part, that if the June 1 request requirement is deemed satisfied, the parents' claims should be denied because the parents failed to demonstrate at the impartial hearing that that the private services obtained by the parents were appropriate, and further that equitable considerations did not favor the parents.[4]
The parents submitted an answer to the district's cross-appeal. Thereafter, the district submitted a reply to the answer to cross-appeal.
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]).[5] "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.).[6] 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. Additional Evidence
The parents submit with their request for review additional evidence and request that it be considered on appeal. As described above, the newly proposed evidence consists of a prior written notice, dated May 25, 2023, prepared by the district and directed to the parents (Exhibit A to the Req. for Rev.). The parents maintain that the language contained therein evidences that the district was aware that the parents were requesting equitable services for the student during the 2023-24 school year and committed to providing them. Consequently, the June 1 defense was "unfounded."
Generally, documentary evidence not presented at an impartial hearing is considered in an appeal from an IHO's decision only if such additional evidence could not have been offered at the time of the impartial hearing and the evidence is necessary in order to render a decision (see, e.g., Application of a Student with a Disability, Appeal No. 08-030; Application of a Student with a Disability, Appeal No. 08-003; see also 8 NYCRR 279.10[b]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 488-89 [S.D.N.Y. 2013] [holding that additional evidence is necessary only if, without such evidence, the SRO is unable to render a decision]).
Here, the parents were, or should have been, aware of the June 1 affirmative defense well before the hearing. The hearing record contains the district's August 20, 2024 response to the due process notice, which noted the district's intention to pursue a June 1 defense at the impartial hearing (Dist. Response to Due Proc. Compl. Not. at p. 1).[7] As recited by the IHO, the district also disclosed the defense in its pre-hearing disclosure (IHO Decision at p. 8). Consequently, it was the parents' responsibility to disclosed and be prepared during the impartial hearing to come forth with all available evidence to refute the affirmative defense. The proposed additional evidence, the prior written notice, dated May 25, 2023, was clearly available to the parents at the time of the December 18, 2024 hearing, yet was not proffered at the hearing.
Notably, the parents offer no explanation for not submitting the prior written notice to the IHO for consideration at the hearing other than attempting to lay blame on the district for not submitting a response to the due process complaint notice "which would have likely contained a copy of the prior written notice". In fact, as previously mentioned herein, the district did submit a response to the request to the due process complaint notice. It included a prior written notice, however, because the hearing was requested after the 2023-24 school year concluded and another CSE meeting that occurred on June 14, 2024, the district apparently included a copy of that prior written notice instead with its response (Dist. Response to Due Proc. Compl. Not.). Regardless, the parents' proffered excuse for not advancing these arguments during the impartial hearing is not sufficient.
Based on the foregoing, as a matter within my discretion, I decline to consider the parents' additional evidence on appeal.
B. June 1 Deadline
Having declined to consider the parents' additional exhibit proffered by the parents, the remaining issues on appeal become whether the IHO correctly determined that the June 1 defense was adequately raised and, if so, whether the IHO correctly determined that the hearing record was devoid of any evidence of the required notice by the parents and any conduct of the district that waived the deadline.
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]). With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available athttps://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available athttps://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
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]).
A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088). The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]). The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing services special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[8] However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).
While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver. This is due, in part, because the district is required to navigate requirements that are in tension with one another. On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services. In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]). Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]). Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.
Here, the IHO correctly determined that the June 1 defense was adequately raised. The district referenced the defense prior to the impartial hearing, and asserted it during its closing arguments at the hearing (Tr. p. 17; IHO Decision at p. 3). It had also raised it as an affirmative defense in its response to the due process complaint notice (Dist. Response to Due Proc. Compl. Not. at p. 1).
Moreover, the hearing record is devoid of any evidence that the parents wrote a request to the district for dual enrollment services prior to the June 1, 2023 deadline, nor does the remaining evidence lead me to conclude that the district waived its defense of the June 1 request deadline during the impartial hearing. Accordingly, there is insufficient basis to disturb the IHO's decision in this matter.
VII. Conclusion
For the reasons described above, as I have determined that the district properly raised the June 1 defense, and the parents did not provide evidence that they timely sent a written request to the district for dual enrollment services in accordance with Education Law § 3602-c, the parents are not entitled to funding for the student's educational services and the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (8 NYCRR 200.1 [zz][11]). Review of the May 2023 IESP shows that during the 2022-23 school year the student, who was approximately four years old, had an IEP (Dist. Ex. 1 at pp. 1, 2).
[2] 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.
[3] General "reservation of rights" statements in a due process complaint notice are inadequate to preserve claims for later review during an impartial hearing, administrative appeal, or judicial review, absent an agreement by the district (B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 [E.D.N.Y. 2012]).
[4] The district does not challenge the IHO's decision or seek reversal of the IHO's denial of its motion to dismiss based on a lack of subject matter jurisdiction and ripeness, and the district was not aggrieved by the IHO's decision. Thus, the district's cross-appeal is improper and will not be considered.
[5] 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]).
[6] 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.
[8] The statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the June 1 deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Frequently Asked Questions About Legislation Removing Non-Medical Exemptions from School Vaccination Requirements" Follow-Up, at p. 4 [DOH/OCFS/SED Aug. 2019], available athttps://www.health.ny.gov/prevention/ immunization/schools/school_vaccines/docs/2019-08_vaccination_requirements_faq.pdf).