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Special Education Law
OSRMixed ResultAppeal No. 25-085

Application of the New York City Department of Education

July 1, 2025·Carol H. Hauge·New York City Department of Education

STATE OF NEW YORK

OFFICE OF STATE REVIEW

25-085

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability

Appearances:

Liz Vladeck, General Counsel, attorneys for petitioner, by Frank J. Lamonica, Esq.

Gulkowitz Berger LLP, attorneys for respondent, by Shaya M. Berger, 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 district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to reimburse the parent for her daughter's private services delivered by Yeled v'Yalda Early Childhood Center, Inc. (Yeled) for the 2023-24 school year.  The appeal must be sustained in part.

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

A CSE convened for an annual review meeting on December 22, 2021, determined the student to be eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of January 5, 2022 (Parent Ex. B at pp. 1, 6; Dist. Ex. 2 at p. 1).[1],[2]  The December 2021 CSE recommended that the student receive five periods per week of direct, group special education teacher support services (SETSS) in Yiddish, three 30-minute sessions per week of individual speech-language therapy in Yiddish, and two 30-minute sessions per week of individual occupational therapy (OT) in English (Parent Ex. B at pp. 1, 6).[3]

By prior written notice dated January 21, 2022, the district informed the parent of the CSE's recommendations regarding identification, evaluation, educational placement, and provision of special education services to the student (Dist. Ex. 10).  The district noted that it developed an IESP because the parent had indicated that the student would be placed in a nonpublic school at her own expense and she would seek equitable services from the district (id. at p. 1).  The district indicated that the student's recommended services would be "put into effect" on February 7, 2022 (id.).

Included in the record is a district form, signed by the parent on May 31, 2023, which indicated that she had placed the student in a nonpublic school at her own expense and that she wanted the student's special education services to continue to be provided by the district (Parent Ex. E at p. 2).

On August 29, 2023, the parent entered into a tuition agreement with Yeled for the provision of  "Special Education and/or Related Services" to the student for a term spanning September 1, 2023 through June 30, 2024 (Parent Ex. C).  Pursuant to its terms, Yeled would do its "best to provide [the student] with all the services they [were] entitled to," and the agreement also indicated that Yeled would charge $198 per hour for special education services, and $250 per hour for related services (id. at p. 2).[4]  The parent also agreed to seek funding for the services provided by Yeled from the district, but she acknowledged that she was responsible for the full amount owed to Yeled (id.).

A. Due Process Complaint Notices and Impartial Hearing

In a due process complaint notice dated July 12, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) and failed to provide the student with equitable services for the 2023-24 school year (Parent Ex. I).

The parties appeared before an IHO that was appointed by the Office of Administrative Trials and Hearings (OATH) for a prehearing conference on August 14, 2024 (Aug. 14, 2024 Tr. pp. 1-13), and the district raised an affirmative defense that the parent failed to provide the district with notice prior to June 1, 2023 that she would be seeking special education services for the student, who was placed in a nonpublic school at her expense, for the 2023-24 school year (id. at p. 4).[5]  The IHO subsequently issued a prehearing conference summary and order dated August 14, 2024 (IHO Ex. I).

On August 27, 2024, the IHO signed two subpoenas, requested by the district, one of which included a subpoena for documents from Yeled (IHO Exs. II, III).

The district submitted a motion to dismiss dated August 28, 2024, alleging that the IHO did not have subject matter jurisdiction over the parent's claims, and that the parent's claims were not ripe (IHO Ex. VIII).

By due process response dated September 3, 2024, the district generally denied the parent's allegations and asserted that it intended to pursue a motion to dismiss for lack of subject matter jurisdiction, and that it intended to pursue all applicable defenses, including a June 1 notice affirmative defense (IHO Ex. IV).

By email transmitted on September 13, 2024, the IHO informed the parties that the district had consented to the parent's request to amend the due process complaint notice and scheduled a second prehearing conference on October 15, 2024 (IHO Ex. V).[6]

In an amended due process complaint notice dated September 10, 2024, the parent alleged that the district denied the student a FAPE and failed to provide the student with equitable services for the 2023-24 school year (Parent Ex. A).  The parent alleged that the last agreed-upon educational program developed for the student was the December 2021 IESP, and she sought a pendency order to continue that program (id. at pp. 1-2).  She further indicated that she was unable to find providers to implement the student's recommended program at the district's rate, that the district failed to put forth any providers for the student's recommended program, and that she found providers who were willing to implement the student's program, albeit at a higher rate (id. at p. 1).  She sought an order awarding funding for five sessions per week of SETSS at an enhanced rate for the 2023-24 school year, as well as an order for all related services recommended in the student's IESP to be directly funded by the district at the parent's chosen providers' rates, or implemented through related services authorizations (RSAs) if accepted by the parent's chosen providers for the 2023-24 school year (id. at p. 2).

The parties appeared before the IHO on October 15, 2024 for a status conference (Oct. 15, 2024 Tr. pp. 14-22).  The district indicated that it would be submitting an updated motion to dismiss for lack of subject matter jurisdiction in light of a recent injunction (id. at pp. 15-16).  It also reasserted the June 1 notice affirmative defense (id. at p. 19).  After the conclusion of the appearance, the IHO, by email dated October 15, 2024, sent a summary of the conference to the parties (IHO Ex. VI).

The district submitted a supplement to motion to dismiss for lack of subject matter jurisdiction dated October 16, 2024 (IHO Ex. IX).  The parent thereafter submitted an opposition to the district's motion dated November 1, 2024 (IHO Ex. X).

The parties appeared before the IHO on November 1, 2024 for a status conference (Nov. 1, 2024 Tr. pp. 1-9).  The district again raised the June 1 affirmative defense (Nov. 1, 2024 Tr. p. 7).  The IHO then issued a status conference summary and order dated November 11, 2024 (IHO Ex. VII).[7]

An impartial hearing convened before the IHO on December 6, 2024 (Dec. 6, 2024 Tr. pp. 32-101).[8]  The district noted that it had served the IHO's issued subpoena for documents upon Yeled twice prior to the impartial hearing, but alleged that it had not received a response (Dec. 6, 2024 Tr. pp. 18-19, 62-63, 74).

B. Impartial Hearing Officer Decisions

In a decision dated December 30, 2024, the IHO ordered the district to fund four periods per week of SETSS, for any provider selected by the parent, at a rate not to exceed $198 per hour (IHO Decision).  The IHO found that the district failed to create or implement an IESP, thereby denying the student a FAPE and equitable services, and that the relief the parent sought was appropriate (id. at pp. 3-8).  The IHO further found that the rate charged by Yeled for SETSS services were not "unreasonable per se," as the district failed to provide the student with service providers, and as the parent was forced to do so instead, she "should not [have been] required to accept a lower rate" (id. at p. 8).  The IHO also granted the district's request for an adverse inference because Yeled failed to respond to a subpoena for documents, but found that the testimony and evidence provided by the parent still sufficiently demonstrated that the unilaterally-obtained SETSS were appropriate (id. at pp. 8-9).  The IHO also found that the district's arguments regarding the June 1 notice affirmative defense were not adequately supported, and thus, were not proven (id. at pp. 9-10).  The IHO found that the parent therefore had no burden to refute an unsupported allegation (id.).  The IHO noted that, nonetheless, the parent had presented a notice of intent to request equitable services prior to June 1, 2023 into the record (id.).  The IHO also denied the district's motion to dismiss on the ground that the IHO lacked subject matter jurisdiction, finding that Education Law § 3602-c permitted the parent to pursue her claims, that the action had commenced prior to the enactment of any changes to applicable regulations, and that the district's citations to an "FAQ" document were not binding authority (id. at pp. 9-10).

On January 8, 2025, the IHO issued a "Corrected" IHO decision (Corrected IHO decision) (Corrected IHO Decision at p. 1).  A comparison of the two IHO decisions reflects that the IHO changed the date of the decision on the cover page and signature page, and with regard to the relief ordered, the IHO adjusted the parent's award from district funding of four periods of SETSS per week, to five periods of SETSS per week (compare IHO Decision at pp. 1, 12 with Corrected IHO Decision at pp. 1, 12).[9]

IV. Appeal for State-Level Review

The district appeals, alleging, among other things, that the IHO erred in denying its motion to dismiss for lack of subject matter jurisdiction.  The district further contends that the IHO erred in finding that the parent requested equitable services prior to June 1, 2023, and that the IHO erred in finding that the parent met her burden in establishing the appropriateness of the SETSS privately provided by Yeled.  The district contends in the alternative that, should an award be given to the parent, it should be reduced as equitable considerations favor the district.

In an answer, the parent contends, among other things, that the IHO had subject matter jurisdiction over her claims, and that the IHO did not err in denying the district's June 1 affirmative defense.  The parent also contends that the IHO correctly found that she met her burden in establishing that the services provided by Yeled were appropriate, and that equitable considerations favor her, alleging that the costs charged by Yeled were reasonable.

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]).[10]  "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.).[11]  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

As an initial matter, I note that neither party has appealed from the IHO's determinations that the district failed to offer the student a FAPE or provide the student with equitable services for the 2023-24 school year or, that the IHO found an adverse inference against the parent; accordingly, these findings have become final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).

Likewise, the parent has not challenged on appeal the IHO's failure to address the parent's request for an order directing the district to fund the related services recommended in the student's December 2021 IESP (see Parent Ex. A at p. 2) and the district has not raised arguments on appeal regarding the IHO's failure to address the district's argument that the parent's claims were not ripe.  Thus, these claims have been deemed abandoned by the parties and will not be further addressed (8 NYCRR 279.8[c][2], [4]).

A. Subject Matter Jurisdiction

The district argues 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 and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.

Recently in a number  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]).[12]

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).[13]  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).[14]  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 circumstance for two reasons.  First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[15]  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).[16]

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]).[17]

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.

Therefore, for the reasons discussed above, 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

Turning to the district's claim that the IHO erred in his determination that the district failed to prove its June 1 affirmative defense, and erred in finding that the parent submitted a request for equitable services prior to June 1, 2023, it is well settled 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]).[18]

Initially I note that, contrary to the IHO's findings and to the parent's arguments that the district failed to originally support the affirmative defense with any sufficient evidence, and that, as a result, the burden did not shift to the parent to rebut the defense, I note that once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (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"]).  However, here the parent did successfully rebut the district's affirmative defense by, as the IHO found, submitting into evidence a signed and dated June 1 notice, and through testimony indicating that the notice was sent to the district by the parent or on behalf of the parent prior to June 1, 2023 (see Parent Ex. E; Dec. 6, 2024 Tr. pp. 31-33, 58-62).

Accordingly, given the evidence in the hearing record that the parent sent a timely June 1 notice to the district and absent any contrary evidence from the district that the parent failed to timely transmit the June 1 notice, there is an insufficient basis to disturb the IHO's finding that the parent complied with the June 1 notice requirements of Education Law § 3602-c.

C. Unilaterally-Obtained SETSS

The district also argues that the IHO erred in finding that the parent met her burden in establishing the appropriateness of the SETSS provided by Yeled. Here, 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 failed to implement the student's mandated public special education services under the State's dual enrollment statute for the 2023-24 school year and, as a self-help remedy, she unilaterally obtained private services from Yeled v'Yalda ECC for the student without the consent of the school district officials, and then commenced due process to obtain remuneration for the costs thereof.  Generally, districts that 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 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 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [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 parent's request for district funding of privately-obtained services must be assessed under this framework.  Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student 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; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[19]  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).

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 must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129).  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'" (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. Student's Needs

While not in dispute, it is necessary to consider the student's needs in order to determine whether the unilaterally-obtained SETSS provided to her by Yaled were appropriate under the Burlington-Carter framework

The December 22, 2021 IESP indicated that the student exhibited difficulties related to executive functioning, comprehension, reading, writing, math, fine motor skills, sensory processing, and classroom participation (Parent Ex. B at pp. 1-3, 9).  According to a November 2021 private speech-language evaluation report, the student presented with significant receptive and expressive speech and language difficulty which affected her academic performance (Dist. Ex. 6 at p. 1).  The December 2021 IESP reflected that the student was able to participate in the general education environment with the supports of speech-language therapy, OT, and special education teacher support (Parent Ex. B at p. 3).  In contrast, a teacher progress report from a prior school year indicated that the student did not complete classwork likely due, in the teacher's opinion, to the student's "lack of ability and lack of motivation" (see Dist. Ex. 8 at p. 2).

In terms of cognitive development, the December 2021 IESP reflected results from a 2021 bilingual psychoeducational evaluation, which indicated that administration of the Wechsler Intelligence Scale for Children—Fifth Edition (WISC-V) to the student yielded a pattern of subtest scores which suggested that her nonverbal reasoning skills were much better developed than her verbal skills (Parent Ex. B at p. 1; see Dist. Ex. 7 at pp. 1-2, 5).[20]  The 2021 bilingual psychoeducational evaluation report noted that the student's performance on fluid reasoning tasks was particularly strong when compared to her performance on tasks that involved language-based skills (Dist. Ex. 7 at p. 3).  According to the IESP, the student's performance on the WISC-V yielded very low scores in verbal comprehension, average scores in fluid reasoning and processing speed, and an average full-scale IQ (Parent Ex. B at p. 1; see Dist. Ex. 7 at p. 5).  The IESP noted that the student demonstrated strengths in analyzing and synthesizing abstract visual information (Parent Ex. B at p. 2; see Dist. Ex. 7 at p. 5).  The student's performance on an academic achievement test yielded scores that fell within the very low range in reading comprehension (Dist. Ex. 7 at p. 5).  With respect to executive functioning, the IESP indicated that the student's classroom teacher reported that she was disruptive, off task, disorganized, did not complete assignments, had a poor attitude, and was distractible (Parent Ex. B at pp. 1-2, see Dist. Ex. 8 at pp. 1, 3).

Regarding academic skills, the December 2021 IESP reflected that, at that time, the student was in the deficient range across all academic subjects, performing at the equivalent of two grade levels below her then-current grade level in reading, writing, and math (Parent Ex. B at pp. 1-2; see Dist. Ex. 8 at pp. 1-4).  The IESP indicated that although the student scored in the average range for word reading, her reading comprehension scores were very low (Parent Ex. B at p. 1).  It was also indicated that the student read slowly in Yiddish and had difficulty with comprehension questions (id. at pp. 1-2).  The IESP further indicated that the student's classroom teacher reported that she needed support to read simple instructions on a sheet of classwork, whereas the class read multisyllabic words easily (see Parent Ex. B at p. 2; see also Dist. Ex. 8 at p. 2).  The IESP noted that the student's teacher indicated that the student's spelling was "very poor" and that she "c[ould] not spell one sentence correctly" (Parent Ex. B at p. 2; see Dist. Ex. 8 at p. 2).  The student's teacher also reported that the student could "only" write one sentence, whereas her peers were able to write a few paragraphs (Parent Ex. B at p. 2; see Dist. Ex. 8 at p. 2).  The IESP also revealed that, in math, the student could add and subtract up to 20 with difficulty, while her peers knew numbers up to 1,000 and were able to add and subtract numbers up to 999 (Parent Ex. B at p. 2; see Dist. Ex. 8 at p. 2).

As noted above, in the area of speech-language development, the November 2021 private speech-language evaluation report indicated that the student had significant language delays (Dist. Ex. 6 at p. 2).  The report noted that the student was more than two years behind in academic and speech-language skills, and that she struggled with language gaps that affected her auditory comprehension, verbal reasoning, problem-solving, expressive vocabulary, and word retrieval abilities (id.).  The report reflected that the student needed "intensive intervention to make progress" (id.).

Regarding social/emotional development, the December 2021 IESP reflected that the student had difficulty following classroom rules but was liked by peers and adults, often offering help (Parent Ex. B at pp. 1-2; see Dist. Ex. 8 at p. 1).  The IESP noted that during an unnamed evaluation, the student was cooperative, maintained eye contact, and was aware of her deficits, but the school psychologist reported at the CSE meeting that sometimes the student engaged in self-defeating behaviors as a coping mechanism (Parent Ex. B at p. 2).

With respect to physical development, according to the December 2021 IESP, the student was in good overall health, with strengths in gross motor skills, such as swimming and biking (Parent Ex. B at p. 3).  In terms of fine motor skills, the IESP reflected that the student was able to copy circular strokes, snip paper with scissors, and complete an eight-piece non-interlocking puzzle (id.).

2. SETSS from Yeled

Having reviewed the hearing record to identify the student's needs, the inquiry now turns to whether the parent's unilaterally-obtained SETSS from Yeled during the 2023-24 school year provided the student with specially-designed instruction to address those needs.

A June 2024 Yeled SETSS progress report noted areas of concern regarding the student's cognition, attention span, organization and study skills, math, literacy, writing, reading comprehension, auditory listening, communication, receptive and expressive language, motor (handwriting), and social/emotional and behavior development (Parent Ex. H at pp. 1-4).  With regard to cognitive skills, the SETSS progress report reflected that the student exhibited delays in cognitive skills, which affected her ability to understand lessons and follow directions, leading to poor classroom performance (id. at p. 2).  To address the student's cognitive skills, the report reflected that the SETSS provider taught the student skills to understand complex sentences, provided language cues, and "taught some of the classroom material" using graphic organizers and concrete manipulatives (id.).  The SETSS progress report reflected that the student "learned many valuable tools in executive functioning as well as studying skills to assist her memory tasks" (id. at p. 1).

In terms of attention span, the SETSS progress report reflected that the student had a "deficient" attention span, which impacted her ability to attend to tasks as well as refocus once distracted (Parent Ex. H at p. 3).   In addition, the student's difficulty attending affected her ability to comply with classroom rules and to concentrate during group projects and activities (id.).  To address the student's ability to attend, the report revealed that the SETSS provider used positive reinforcement and self-awareness tools (id.).

In reading comprehension, the SETSS progress report indicated that the student had difficulty understanding the main idea and details of a story, which affected her ability to engage in discussions (Parent Ex. H at p. 3).  To help improve comprehension, the SETSS provider taught the student to use graphic organizers and visual cue cards (id.).  The report revealed that the student had "made great progress in her reading comprehension" and could "now" answer basic 'wh' questions after reading a short story, by referencing back to the book" (id. at p. 1).  "Moreover, [the student] ha[d] learned to retell a story using a variety of methods" (id.).

With respect to literacy, the SETSS progress report noted that the student was able to read all sounds of the Orton-Gillingham program in isolation but struggled with fluency and comprehension when reading text (Parent Ex. H at pp. 2-3).  The report also noted that the student struggled to decode each word separately, even more-so with multi-syllable words (id.).  To improve the student's reading skills, the SETSS provider used tools such as echo reading, paired reading, and audio books (id.).  With respect to progress, the SETSS report noted the student had shown improvement in decoding multi-syllable words (id. at p. 1).  The report indicated that the student "c[ould] now read v/cv [vowel/consonant-vowel] and vc/v [vowel-consonant/vowel] words in isolation and in context" (id.).  The report reflected that the student had also shown an improvement in her reading fluency (id.).  According to the SETSS report, this had "greatly impacted" the student's reading in context as seen in her "Fountas and Pinnell" reading level (id.).  For example, in October, the student was reading at a level "J" using word by word phrasing and needed prompting to achieve a basic understanding of the text, but in June, she was reassessed and was reading on a level "L" with two-to-three word phrasing and good comprehension of text (id.).  Further, the report reflected that the student was able to read 34 phrases per minute when reading "Fry Word Phrases" which was "comparable" to the 21 phrases she read in October (id.).

Regarding writing, the SETSS progress report reflected that the student showed deficits in written expression, noting that the student had difficulty responding to reading in written form even using graphic organizers "where 1-word answers [we]re acceptable" (Parent Ex. H at p. 3).  To address the student's writing deficits, the SETSS provider taught the elements of the "Writers Revolution" to help the student to create fuller and more complete sentences (id.).  The SETSS progress report noted the student had made progress in spelling multisyllable words using the phonics skills she knew as well as "generalizing" the spelling of basic sight words (id. at p. 2).  The report indicated the student "made much growth in her ability to use coherent sentences when expressing herself, especially when writing" (id.).

According to the SETSS progress report, math was an area of strength for the student, and she had a good understanding of all four computations, but she had difficulty computing multi-step problems such as long division and fraction operations (Parent Ex. H at p. 2).  The report noted that the student's struggles with executive functioning, language, and emotional/behavioral performance had, over time, increased the gap between her and her peers (id.).  According to the report, the student required language supports to learn new concepts such as fractions and relativity of fraction size (id.).  To help address those deficits, the provider had used math worksheets, checklists, picture cue cards, and math manipulatives (id.).  Regarding organization and study skills, the report indicated that limited progress in organization and study skills hindered the student's ability to complete assignments carefully (id. at p. 3).  The SETSS progress report reflected that the student had made "significant progress in her math skills" (id. at p. 1).  The student was "now" able to compute problems in "all four computations when they involve[d] multi-digit numbers" (id.).  The report indicated that the student's growth was specific in having the ability to follow checklists and anchor charts to enable her to solve multi-step computation such as long division (id. at pp. 1-2).

Regarding communication skills, the SETSS progress report indicated that the student struggled with receptive instruction skills, which affected her ability to follow lessons and understand complex sentences (Parent Ex. H at p. 3).  According to the report, the SETSS provider taught the student techniques to identify sentence components and separate details from the main idea (id. at pp. 3-4).  In terms of auditory listening skills, the report noted that weaknesses in this area affected the student's ability to recall information and follow multi-step directions (id. at p. 3).  The report reflected that as a note-taking skill the SETSS provider taught the student to draw information that she heard (id.).

In the area of receptive and expressive language skills, the SETSS progress report revealed that deficiencies in the student's receptive language skills limited the student's understanding of directions, while expressive language deficits hindered her ability to express challenges and request support, which caused the student frustration (Parent Ex. H at p. 4).    According to the report, this was evident when the student "[g]ot very upset about consequences she was given, yet she ha[d] a hard time expressing her side of the story" (id.).  The report noted that the SETSS provider supported the student through such situations and guided the student in explaining why she thought she did not deserve "it" (id.).  The SETSS provider also taught the student "some metacognitive skills" such as asking herself questions that could guide her to the information she was seeking or being asked (id.).  To address the student's receptive language deficits, the SETSS provider explored with the student how to identify key words in instruction (id.).  With respect to progress, the report noted that the student "c[ould] now retell a story using key words, describe an object using identifiable features and follow two-step instructions as well as inverted sequences in sentences" such as "put your pen down after finishing answering number 2" (id. at p. 2).  According to the report, in expressive language, the student had grown in her ability to ask for help from specific adults she trusted (id.).  The student was able to identify key emotions and with prompts could express what was causing those emotions (id.).  The report reflected that the student learned to create sentences that included multiple parts, following the "Writing Revolution" process (id.).

In terms of social/emotional and behavior development, the report reflected that delays in social interaction skills affected the student's ability to work collaboratively (Parent Ex. H at p. 4).  The report indicated that limited progress deterred the student from interacting effectively with her peers (id.).  The report noted examples of the student's poor classroom performance which included her difficulty accepting redirection and trusting her teachers to support her (id.).  The report revealed that significant weaknesses in the student's social/emotional and behavior skills affected her ability to complete school assignments, express what she found difficult, and to be receptive to redirection (id.).  To address this deficit, the SETSS provider introduced the student "to the vocabulary of different emotions such as anxiety, frustration, and overwhelm as well as how to identify when she [wa]s feeling any of [those] emotions along with some tools to self-regulate" (id.).  The report reflected that the SETSS provider also introduced the student to perspective-taking skills and emotional self-awareness (id.).  In regard to progress, the SETSS progress report indicated that the student had shown a greater ability to maintain appropriate classroom behavior when incentives were in place (id. at p. 2).  The report reflected that the student learned to ask for breaks when necessary as well as tools to use on her breaks such as deep breaths, sensory stimulation and taking a short walk or drink to help her regulate herself (id.).  According to the report, the student explored many topics such as different kinds of relationships and how emotions affected the way she responded to difficult situations (id.).  The report noted that those were very beneficial to helping the student "accept classroom instructions and redirection when necessary" (id.).

With respect to motor skills, the SETSS progress report reflected concerns regarding the student's writing skills that affected her ability to take notes and complete classwork (Parent Ex. H at p. 4).  According to the report, the student's delay hindered her ability to write notes independently (id.).  To address this deficit, the report indicated that the SETSS provider broke down tasks and taught usage of shorthand (id.).

Additionally, the parent testified that she observed many SETSS sessions during the 2023-24 school year, and alleged that the SETSS provider "definitely worked on many areas of academic support, whether it was reading, writing, math, classroom [] function, executive function, social, releasing, really a lot of scope" with the student (Dec. 6, 2024 Tr. p. 40).

The foregoing evidence in the hearing record, while reflective of some supports and strategies used by Yeled, as well as some demonstrated degree of progress by the student, overall does not support a finding that the parent met her burden under Burlington-Carter to prove that the services she unilaterally obtained for the student constituted specially designed instruction to address her unique educational needs.  Specially designed instruction is defined as "adapting, as appropriate to the needs of an eligible student . . ., the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students" (8 NYCRR 200.1[vv]; see 34 CFR 300.39[b][3]).  The hearing record does not include any evidence of the instruction that the student received while attending the general education nonpublic school.  While there are references in the SETSS progress report to the student working with her teachers and peers, classroom performance, and her performance compared to her peers, as well as examples of how the student's reported deficits affected her classroom performance (see Parent Ex. H at pp. 2-4), the hearing record is nonetheless devoid of information regarding the student's curriculum at the nonpublic school, and it is unclear how the SETSS provider was able to obtain information about the student's conduct and performance within the classroom when the evidence and testimony in the hearing record support the conclusion that the student received SETSS at home after school and on weekends (Parent Ex. G; Dec. 6, 2024 Tr. pp. 37-39; but see Dec. 6, 2024 Tr. pp. 51-52).[21],[22]

Thus, it is not possible to ascertain from the evidence in the hearing record whether the student received any special education support in the classroom to enable her to access the general education curriculum or how the SETSS delivered to her supported her functioning in the classroom.  Accordingly, the hearing record lacks information concerning the student's general education school in terms of the instruction and curriculum provided, which necessitates assessing the unilaterally-obtained services in isolation from the student's general education private placement.  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, under the totality of the circumstances, the evidence in the hearing record is insufficient to demonstrate that the student's program was appropriate. The student's educational program, as a whole, consisted of enrollment at a general education nonpublic school along with the parent's unilaterally-obtained SETSS, and when viewed together, with the idea that the specially designed instruction should support the student's access to the general education curriculum, there was insufficient information to support a finding of appropriateness under the Burlington-Carter framework (see Application of a Student with a Disability, Appeal No. 25-029; Application of a Student with a Disability, Appeal No. 24-461; Application of a Student with a Disability, Appeal No. 24-472; Application of a Student with a Disability, Appeal No. 24-478; Application of a Student with a Disability, Appeal No. 24-548; Application of a Student with a Disability, 24-593).

Additionally, the progress report, when compared to the December 2021 IESP, does not show that the student's significant speech-language needs were being addressed (compare Parent Ex. B and Dist. Ex. 6, with Parent Ex. G).  As noted above, the December 2021 IESP reflected the student was recommended to receive three 30-minute sessions per week of individual speech-language therapy services in Yiddish, along with two 30-minute sessions per week of individual OT in English (see Parent Ex. B at p. 6).  The November 2021 private speech-language report indicated that the student "[wa]s more than [two] years delayed in [both] her academic and speech and language skills" further noting the student "continuously struggle[d] with language gaps []which affect[ed] her auditory comprehension, verbal reasoning, verbal problem solving, expressive vocabulary, and word retrieval abilities" (see Dist. Ex. 6 at p. 2).  While I note that parents need not show that the placement provides every 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.  The evidence and testimony in the record indicated that Yeled only provided SETSS to the student, and did not provide her with speech-language therapy or OT for the 2023-24 school year.  Additionally, the parent does not dispute the December 2021 CSE's recommendations of speech-language therapy for the student, and, as reflected above, the hearing record indicates that the student had significant speech-language needs.

Accordingly, given the dearth of evidence concerning how the SETSS supported the student at the nonpublic school and the evidence showing that the student's speech-language and motor needs were only minimally addressed by the SETSS provider, the totality of the circumstances does not demonstrate that the parent met her burden of proving that the unilaterally-obtained services delivered by Yeled were appropriate for the student under the Burlington-Carter standard.[23]

VII. Conclusion

For the reasons described above, the IHO possessed subject matter jurisdiction to adjudicate the parent's claim and there is an insufficient basis to disturb the IHO's finding that the parent complied with the June 1 notice requirements of Education Law § 3602-c. Having determined, however, that the IHO erred in finding that the parent's unilaterally-obtained SETSS provided by Yeled to the student for the 2023-24 school year were appropriate to address the student's needs under the totality of the circumstances, the necessary inquiry is at an end.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO decision, dated December 30, 2024, is modified by reversing those portions which found that the parent met her burden to prove the appropriateness of the unilaterally-obtained services under the totality of the circumstances and awarded the parent funding from the district for the privately-obtained special education services.

Footnotes

[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).

[2] The hearing record contains multiple duplicative exhibits. For purposes of this decision, only parent exhibits will be cited in instances where both a parent and district exhibit are comprised of the same document (compare Parent Ex. B with Dist. Ex. 1; Parent Ex. I with Dist. Ex. 5; Parent Ex. A with Dist. Ex. 11).  The IHO is reminded that it is his responsibility to exclude evidence that he determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).

[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] It was not specified in the agreement what services would be provided to the student, or what services the student was "entitled to."  Testimony in the hearing record indicated that Yeled was to provide five hours of SETSS per week for the 2023-24 school year to the student (Parent Ex. D; see Parent Ex. H).

[5] There are four transcripts in the hearing record, however, they are not all consecutively paginated.  While some pairings of transcripts are consecutively paginated with others, for clarity, each transcript will be cited to by the date of the appearance, followed by the page number listed on the transcript page.

[6] There is no record of the parent's request to amend the due process complaint notice, aside from this email, in the hearing record.

[7] In an apparent typographical error, the status conference summary and order refers to the August 14, 2024 prehearing conference, however, both the coversheet and IHO's signature are dated November 1, 2024 (IHO Ex. VII).

[8] The cover page of the transcript indicates that the impartial hearing took place on November 6, 2024, but the IHO indicated at the start of the hearing that the correct date was December 6, 2024 (Dec. 6, 2024 Tr. p. 13), and the district has noted that December is the correct date in its hearing record submission.  The district further noted that the cover page had an incorrect start time listed.

[9] Although not raised by either party on appeal, I note that while in some instances an IHO may issue a corrected or amended final decision on the merits in order to make solely ministerial, non-substantive clarifications to an original IHO decision,  an IHO's jurisdiction is limited by statute and regulations and there is no authority for an IHO to reopen an impartial hearing, reconsider a prior decision, or retain jurisdiction to resolve future disputes between the parties (see, e.g., Application of a Student with a Disability, Appeal No. 17-021; Application of the Dep't of Educ., Appeal No. 16-065; Application of a Student with a Disability, Appeal No. 16-035; Application of the Dep't of Educ., Appeal No. 15-073; Application of a Student with a Disability, Appeal No. 15-026; Application of the Dep't of Educ., Appeal No. 12-096; Application of a Student with a Disability, Appeal No. 11-046; Application of the Dep't of Educ., Appeal No. 11-014; Application of the Dep't of Educ., Appeal No. 08-024; Application of the Bd. of Educ., Appeal No. 07-081; Application of the Dep't of Educ., Appeal No. 06-133; Application of a Child with a Disability, Appeal No. 06-021; Application of a Child with a Disability, Appeal No. 05-056; Application of the Bd. of Educ., Appeal No. 02-043; Application of the Bd. of Educ., Appeal No. 98-16; see also J.T. v. Dep't of Educ., Hawaii, 2014 WL 1213911, at *10 [D. Haw. Mar. 24, 2014]; Application of the Dep't of Educ., Appeal No. 08-041).  Rather, the IDEA, the New York State Education Law, and federal and State regulations provide that an IHO's decision is final unless appealed to an SRO (20 U.S.C. § 1415[i][1][A]; Educ. Law § 4404[1][c]; 34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]) and the IHO is cautioned to consider this authority before issuing a "corrected" decision.

[10] 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]).

[11] 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.

[12] 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]).

[13] The district did not seek judicial review of these decisions.

[14] 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.

[15] 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 original process complaint in this matter was filed with the district on July 12, 2024 (Parent Ex. I at p. 1) prior to the July 16, 2024 date set forth in the emergency regulation.  Since then, the emergency regulation has lapsed.

[16] 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]).

[17] 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 original motion to dismiss dated August 28, 2024 (see IHO Ex. VIII at pp. 17-27).

[18] 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, there is no dispute that the district timely raised the affirmative defense.

[19] 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 Yeled  (Educ. Law § 4404[1][c]).

[20] The 2021 bilingual psychoeducational evaluation noted that "[c]onsistent with the Chancellor's regulations concerning non-discriminatory testing standards, in the absence of local norms and due to some deviations of standard testing procedures to accommodate bilingual issues, exact quantitative results [we]re not presented, and the ranges presented [in the student's performance on the subtests] should be interpreted with caution" (Dist. Ex. 7 at p. 2).

[21] While the director of special services for Yeled, who oversaw the financial aspects of the agency but had no clinical knowledge of services offered by the agency, testified that she believed the SETSS occurred in school, the invoices provided by the parent in the hearing record confirms the parent's testimony that services occurred after school and on weekends (compare Dec. 6, 2024 Tr. pp. 51-52 with Parent Ex. G and Dec. 6, 2024 Tr. pp. 37-39).

[22] The parent reported that she had a conversation with the agency about providing SETSS at school, but the student rejected in-school services because she was concerned that they would affect her social standing (Tr. pp. 38-39).

[23] I also note that, to the extent the district argues that the student's SETSS provider was not qualified due to a period of license expiration for approximately three months during the 2023-24 school year, it is well-settled that a parent need not engage the services of a certified special education teacher—or, as here, a SETSS provider—in order to qualify for reimbursement or direct funding of those services (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]).