STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-090
Application of a STUDENT WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Gail Eckstein, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her son's private services delivered by Strivright for the 2023-24 school year. Respondent (the district) cross-appeals from that portion of the IHO's decision which denied its motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction. The appeal must be sustained in part. The cross-appeal must be dismissed, and the matter remanded to the IHO for further proceedings.
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 this case will not be recited in detail. Briefly, a CSE convened on September 26, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP for the student (Dist. Ex. 1 at p. 1).[1] The September 2023 CSE recommended that the student receive two 30-minute sessions per week of individual occupational therapy (OT) and three 30-minute sessions per week of individual speech-language therapy (id. at pp. 1, 8).
By prior written notice dated October 24, 2023, the district summarized the recommendations of the September 2023 CSE and indicated that "[t]he recommended services w[ould] be put into effect on 11/08/2023" (Dist. Exs. 2 at pp. 1, 2; 3 at p. 1).
On November 30, 2023, the parent electronically signed an agreement with Strivright for special education and/or related services for the 2023-24 school year (Parent Ex. C at pp. 1, 2). The agreement indicated that the "[s]ervice [t]ype" to be provided was three 30-minute sessions per week of speech-language therapy (id. at p. 1). However, the agreement also indicated that "Strivright intend[ed] to provide" special education teacher support services (SETSS)/special education itinerant teacher (SEIT) "at a rate of $200/hour depending on the provider" and "Speech Language, Occupational Therapy, Physical Therapy and Counseling at a rate of $250 depending on the provider" (id.).[2] In the agreement, the parent confirmed that she was "liable to pay [] Strivright the full amount for all services delivered by . . . Strivright in the event that [the p]arent [wa]s unable to secure funding from the" district (id.).
During the 2023-24 school year, the student was parentally placed at a nonpublic school (Parent Exs. A at p. 1; C at p. 1).
A. Due Process Complaint Notice
In a due process complaint notice dated July 14, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A at pp. 1-2). The parent invoked pendency "to implement the IESP dated 9/26/2023" and asserted that she was "concerned regarding implementation of the" September 26, 2023 IESP and that she had been unable to locate OT and speech-language therapy providers for the 2023-24 school year (id. at p. 2). The parent further alleged that the district failed to implement its own recommendations and that "[w]ithout supports, the parental mainstream placement [wa]s untenable, and the failure to either implement the services or provide a placement [wa]s a denial of a FAPE for the 2023-24 school year" (id.). As relief, the parent requested a finding that the district's failure to implement the recommendations in the September 2023 IESP was a denial of a FAPE to the student, district funding for the costs of services delivered by the providers located by the parent at their contracted rates, and funding for a bank of compensatory periods of OT and speech-language therapy for the entire 2023-24 school year "or the parts of which [that] were not serviced" at the providers' contracted rates (id. at p. 3).
B. Motions to Dismiss, Impartial Hearing, and Impartial Hearing Officer Decision
A prehearing conference was held on August 6, 2024 and an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on September 24, 2024, and concluded on November 7, 2024 (Aug. 6, 2024 Tr. pp. 1-14; Sept. 24, 2024 Tr. pp. 15-26; Nov. 7, 2024 Tr. pp. 1-48).[3]
The hearing record reflects that, during the August 6, 2024 prehearing conference, the parties and the IHO engaged in a conversation that was held off the record, which the IHO later summarized on the record (Aug. 6, 2024 Tr. pp. 2-6). The IHO stated that the district's attorney indicated she would be raising an affirmative defense based on the parent's failure to provide a written request for dual enrollment services by June 1, 2023, and that she intended to call the parent as a witness and request a subpoena in the event the parent was not appearing at the impartial hearing (Aug. 6, 2024 Tr. p. 4). The IHO also stated that the parent's attorney had indicated that he would present a witness related to the unilaterally obtained services but did not plan to call the parent as a witness (id.). When given the opportunity to "supplement [the] summary," the district reiterated its intention to raise the affirmative defense of a lack of a June 1 notice (Aug. 6, 2024 Tr. p. 6). The parent's attorney indicated that he would have a written response to a subpoena request and stated that he was "not volunteering the [p]arent" (Aug. 6, 2024 Tr. p. 7).
The district filed a written motion to dismiss the parent's due process complaint notice for lack of subject matter jurisdiction, which was dated August 21, 2024 (IHO Ex. I at pp. 1-4). The district filed a subsequent motion to dismiss with exhibits, dated August 28, 2024, wherein the district asserted that the IHO lacked subject matter jurisdiction to review the parent's claims in her due process complaint notice and further that the parent's claims were not ripe (IHO Ex. II at pp. 1-27).
In a memorandum of law dated August 30, 2024, the parent opposed the district's initial motion to dismiss arguing that a July 16, 2024 emergency amendment to State regulation was improper and could not be used as grounds to strip the IHO of jurisdiction (IHO Ex. III at pp. 1-20). In response to the district's motion to dismiss dated August 28, 2024, the parent submitted a memorandum of law in opposition dated September 4, 2024 (IHO Ex. IV at pp. 1-20). The parent reasserted her arguments related to the emergency amendment and also alleged that the district's ripeness argument was without merit (id.). Following legal challenges to the emergency amendment, the district filed a supplement to its motion to dismiss dated October 18, 2024, asserting that, irrespective of the emergency amendment having been "enjoined and suspended," the IHO lacked subject matter jurisdiction over the parent's claims (IHO Ex. V at pp. 1-4).
On September 16, 2024 the IHO signed a witness subpoena directing the parent to appear by video conference at the September 24, 2024 impartial hearing date (IHO Ex. VII). However, the September 24, 2024 impartial hearing date was subsequently adjourned due to the parent's unavailability (Sept. 24, 2024 Tr. pp. 17-22). On November 7, 2024, the parent presented testimony by affidavit of the director at Strivright and the parent, both of whom appears from cross-examination by the district (see Nov. 7, 2024 Tr. pp. 19-35; Parent Exs. F; H).
In a decision dated December 26, 2024, the IHO analyzed the district's motions to dismiss for lack of subject matter jurisdiction and found that the district's arguments were without merit (IHO Decision at pp. 7-13). In addition, the IHO determined that the district's motion to dismiss on the ground of ripeness appeared to be a template that incorrectly asserted the parent's claims were related to the 2024-25 school year (id. at p. 12). The IHO also noted that the district's attorney had indicated during the November 7, 2024 impartial hearing date that "ripeness [wa]s not an issue" (id. at p. 12; see Nov. 7, 2024 Tr. p. 18).
Next, the IHO addressed the district's June 1 affirmative defense. The IHO found that the parent did not provide documentary evidence of a written request for equitable services for the 2023-24 school year despite the district timely raising the June 1 affirmative defense (IHO Decision at p. 13). The IHO then found that the district's "explicit statement in a response to a parent's due process complaint [notice] that it recommended related services for the student" was not a waiver of the June 1 notice requirement (id.). The IHO also found that the parent's argument that the district did not demonstrate that the parent failed to comply with the June 1 notice requirement was "not accurate" (id. at p. 14). The IHO noted that the district called the parent as a witness and offered documentary evidence consisting of the district's special education student information system (SESIS) events log for the 2023-24 school year, which showed there was no entry recording a request for equitable services on or before June 1, 2023 (id.).
With regard to the parent's testimony, the IHO found it not credible (IHO Decision at p. 14). The IHO characterized the parent's testimony as "vague and not forthcoming with the truth," and determined that the parent did not comply with the requirement to request equitable service in a written notice on or before June 1, 2023 (id.). The IHO also determined that the development of the IESP was not a waiver of the June 1 notice requirement (id. at pp. 14-15). Having determined that the parent did not request equitable services for the 2023-24 school year, the IHO found that the parent was not entitled to any relief and dismissed the parent's due process complaint notice (id. at pp. 15-16).
IV. Appeal for State-Level Review
The parent appeals and alleges that the district waived the requirement for a written request for equitable services by June 1 through its conduct. Initially, the parent asserts that creation of the September 2023 IESP with an implementation date constituted a waiver of the June 1 affirmative defense. The parent further argues that the language in the district's October 24, 2023 prior written notice also constituted a waiver of the June 1 affirmative defense. With regard to the parent's unilaterally obtained services, the parent contends that the speech-language therapy services provided during the 2023-24 school year were specifically tailored to address the student's needs as a learner. The parent also argues that "[t]he [p]rogress [r]eport, [p]rovider [t]estimony, and [p]rovider credentials clearly indicate the SETSS and [s]peech-[l]anguage [therapy] services are specifically designed to meet [the student]'s needs." As relief, the parent requests reversal of the IHO's decision and direct funding for two 30-minute sessions per week of individual OT and three 30-minute sessions per week of individual speech-language therapy.
In an answer and cross-appeal, the district responds with general denials and argues that the IHO erred in denying its motion to dismiss for lack of subject matter jurisdiction. The district also asserts that the IHO correctly denied the parent's requested relief on the basis that the parent did not request equitable services on or before June 1, 2023. The district argues that the IHO properly rejected the parent's argument that the district waived the requirement for a June 1 notice by creating an IESP for the student and alleges that the language used in the prior written notice did not replace the parent's burden to request equitable services on or before by June 1, 2023. The district further argues that the parent would not have met her burden of proof that the private OT and speech-language therapy were appropriate for the student. As relief, the district requests a finding that the IHO lacked subject matter to review the parent's claims and that the parent's appeal be dismissed.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [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.).[5] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Education Law § 3602-c
1. Subject Matter Jurisdiction
As an initial matter, in its cross-appeal the district argues that the IHO erred by failing to grant its motion to dismiss based on subject matter jurisdiction because neither the IHO nor SRO has jurisdiction to determine implementation issues arising from an IESP developed for a dually enrolled student under Education Law § 3602-c.
Recently in several decisions, the undersigned and other SROs have rejected the district's position that IHOs and SROs lack subject matter jurisdiction to address claims related to implementation of equitable services under State law (see, e.g., Application of a Student with a Disability, Appeal No. 25-104; Application of a Student with a Disability, Appeal No. 25-079; Application of a Student with a Disability, Appeal No. 25-077; Application of a Student with a Disability, Appeal No. 25-076; Application of a Student with a Disability, Appeal No. 25-075; Application of a Student with a Disability, Appeal No. 25-074; Application of a Student with a Disability, Appeal No. 25-071; Application of the New York City Dep't of Educ., Appeal No. 25-068; Application of a Student with a Disability, Appeal No. 25-067; Application of a Student with a Disability, Appeal No. 24-620; Application of a Student with a Disability, Appeal No. 24-615; Application of a Student with a Disability, Appeal No. 24-614; Application of a Student with a Disability, Appeal No. 24-612; Application of a Student with a Disability, Appeal No. 24-602; Application of a Student with a Disability, Appeal No. 24-595; Application of a Student with a Disability, Appeal No. 24-594; Application of a Student with a Disability, Appeal No. 24-589; Application of a Student with a Disability, Appeal No. 24-584; Application of a Student with a Disability, Appeal No. 24-572; 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]).[6]
Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]). It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).
However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confer IHOs with jurisdiction to consider enhanced rates claims from parents seeking implementation of equitable services.
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4404[1][a]; see 20 U.S.C. § 1415[b][6]). State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).[7] In addition, the New York Court of Appeals has explained that students authorized to receive services pursuant to Education Law § 3602-c are considered part-time public school students under State Law (Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]; see also L. Off. of Philippe J. Gerschel v. New York City Dep't of Educ., 2025 WL 466973, at *4-*6 [S.D.N.Y. Feb. 1, 2025]), which further supports the conclusion that part-time public school students are entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.
However, the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years. Public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy. Policy makers have 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). 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.).[8] 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).[9]
According to the district, however, the aforesaid rule making activities support its position that parents never had a right under State law to bring a due process complaint regarding implementation of an IESP or to seek relief in the form of enhanced rate services. Consistent with the district's position, State guidance issued in August 2024 noted that the State Education Department had previously "conveyed" to the district that:
parents have never had the right to file a due process complaint to request an enhanced rate for equitable services or dispute whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services. Therefore, such claims should be dismissed on jurisdictional grounds, whether they were filed before or after the date of the regulatory amendment.
("Special Education Due Process Hearings—Rate Disputes," Office of Special Educ. [Aug. 2024]).[10]
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. Acknowledging that this matter has received new attention from State policymakers and appears to be an evolving situation, I nevertheless must deny the district's request for dismissal of the parent's appeal and underlying claim relating to implementation of the IESP on jurisdictional grounds.
2. June 1 Deadline
Turning to the substance of the parent's appeal, generally, the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011])].
Contrary to the parent's argument that the district did not raise the defense, here, the IHO correctly found that the district timely raised the June 1 affirmative defense in its due process response, the prehearing conference, and during the impartial hearing (IHO Decision at p. 13; see Aug. 6, 2024 Tr. p. 6; Sept. 24, 2024 Tr. pp. 18-21; Nov. 7, 2024 Tr. pp. 32, 37; IHO Ex. VI at p. 1).
Next, the parent contends that the district had the burden to demonstrate that the parent failed to comply with the June 1 deadline and that it failed to meet its burden of proof on this issue.[11] Once raised, 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 [S.D.N.Y. Sept. 30, 2024] [noting "it is unclear how the school district could have proved such a negative"). Nevertheless, here, the evidence in the hearing record supports the IHO's concluded that the district offered sufficient evidence to demonstrate that it did not receive a written request for equitable services from the parent on or before June 1, 2023 (IHO Decision at p. 14; see Dist. Ex. 3).
As the IHO found, the hearing record does not include a written request by the parent for equitable services for the 2023-24 school year by June 1, 2023 (IHO Decision at p. 13; see Parent Exs. A, C-F, H; Dist. Exs. 1-2). Further, the IHO reviewed the testimony of the parent on the issue and found her to be not credible (IHO Decision at p. 14).[12] The IHO found that the parent was unable to establish through her testimony that she requested equitable services for the 2023-24 school year (id.; see Nov. 7, 2024 Tr. p. 33). In addition, the district's SESIS log includes not entry to reflect receipt of such a request (see Dist. Ex. 3). However, in this instance, the lack of evidence of a written notice is not the end of the inquiry.
The parent also argues on appeal that the IHO erred by finding that the district did not, through its conduct, waive the requirement for a June 1 request for services from the parent. 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]).
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 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 some circumstances, a district may be required to develop an IESP for the student rather than await 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.
However, while convening of the September 2023 CSE to create an IESP for the student may not, on its own, have constituted a waiver of the June 1 deadline, the language contained in the district's October 24, 2023 prior written notice lends further support to a finding that the district convened the CSE in response to the parent's request for dual enrollment services and, further, that it intended to arrange for delivery of the services recommended in the IESP to the student (see Dist. Ex. 2 at pp. 1-2). Specifically, the October 2023 prior written notice documents that the parent "indicated that [she] w[as] placing [the student] in a non-public school, at [her] own expense, and [was] seeking equitable services from the [district]," adding that the CSE "ha[d] developed an IESP because [the parent] ha[d] indicated that [she] w[ould] be placing [the student] in a private school at [her] expense and [was] requesting equitable services" (id. at p. 2). The prior written notice also stated that "[t]he recommended services w[ould] be put into effect on [November 8, 2023]" (id.). In other words, the language identifies that the CSE convened and developed an IESP because of the parent's communication to the district of her request for equitable services and not for an independent reason related to the district's obligation to develop an IESP or IEP for the student. Further, the communication from the district to the parent in the October 2023 prior written notice that the "recommended services will be put into effect" is without qualification that such receipt would occur only if the district had received a timely written request for services (id. at p. 2).
The district argues that the parent was required to respond to a timely June 1 affirmative defense "with evidence that [she] made a timely service request" irrespective of the language set forth in the October 24, 2023 prior written notice. However, the district's actions in convening the September 2023 CSE and sending the prior written notice described above reflect either a concession that the district received a written notice of the parent's request for the services or a waiver of the requirement for written notice. Accordingly, the evidence in the hearing record does not support the IHO's determination that the student was not eligible for equitable services for the 2023-24 school based on the district's affirmative defense that the parent did not submit a timely written request for services.
B. Remand
Having found that the student was entitled to equitable services for the 2023-24 school year, the merits of the parent's claims and requests for relief remain to be addressed. When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).
It is undisputed that the district failed to present any witnesses at the impartial hearing and did not dispute its failure to implement the September 2023 IESP (Tr. pp. 8-10). However, upon remand, the IHO should consider whether the district failed to provide the student with equitable services for the entirety of the school year or beginning on November 8, 2023, the date stated in the October 2023 prior written notice, or upon some other date (see Dist. Ex. 2). In addition, the matter is remanded to the IHO to address in the first instance the issues of whether the parent met her burden to prove that the unilaterally obtained services delivered to the student by Strivright during the 2023-24 school year were, under the totality of the circumstances, specially designed to address the student's unique special education needs and whether equitable considerations weigh in favor of an award of district funding for the unilaterally obtained services. Additionally, I leave it to the IHO's sound discretion to determine on remand whether any additional evidence is required to complete the record.
VII. Conclusion
The evidence in the hearing record does not support the IHO's finding that the parent's claims were foreclosed based on the lack of evidence of a timely written request from the parent for equitable services. As the IHO did not address the merits of the parent's claims or request for relief, including the appropriateness of the parent's unilaterally obtained services, or equitable considerations, this matter is remanded to the IHO to make determinations on these issues.
I have considered the parties' remaining contentions and find that I need not address them in light of my determinations herein.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED
IT IS ORDERED that the IHO decision dated December 26, 2024 is modified by reversing that portion which found that the student was not entitled to equitable services from the district for the 2023-24 school year due to the parent's failure to submit a written request for such services; and
IT IS FURTHER ORDERED that the matter is remanded to the IHO to determine whether the district failed to provide the student with equitable services for the 2023-24 school year, whether unilaterally obtained services provided to the student by Strivright were appropriate for the student for the 2023-24 school year; and whether equitable considerations weigh in favor of granting funding for the costs of the services provided by Strivright.
Footnotes
[1] The student's eligibility for special education as a student with a speech or language impairment is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[2] SETSS are 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. SEIT services are defined in State law and in State regulation as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available athttps://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]). The September 2023 CSE did not recommend that the student receive SETSS, SEIT services, physical therapy or counseling (Dist. Ex. 1 at p. 7).
[3] The hearing record includes one transcript that was not consecutively paginated. The transcripts for the prehearing conference and the first date of the impartial hearing were consecutively paginated. The impartial hearing concluded on November 7, 2024, and this transcript begins with page 1. The IHO noted in his decision that there was a change in transcription service providers for the November 7, 2024 impartial hearing date (IHO Decision at p. 3 n.5). For clarity, all transcripts will be cited by the date and corresponding page number.
[4] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[6] This provision is separate and distinct from the State's adoption of statutory language effectuating the federal requirement that the district of location "expend a proportionate amount of its federal funds made available under part B of the individuals with disabilities education act for the provision of services to students with disabilities attending such nonpublic schools" (Educ. Law § 3602-c[2-a]).
[7] The district did not seek judicial review of these decisions.
[8] A statutory or regulatory amendment is generally presumed to have prospective application unless there is clear language indicating retroactive intent (see Ratha v. Rubicon Res., LLC, 111 F.4th 946, 963 [9th Cir. 2024]). The presence of a future effective date typically suggests that the amendment is intended to apply prospectively, not retroactively (People v. Galindo, 38 N.Y.3d 199, 203 [2022]). The due process complaint notice in this matter was filed with the district on July 14, 2024 (Parent Ex. A), prior to the July 16, 2024 date set forth in the emergency regulation. Since then, the emergency regulation has lapsed.
[9] On November 1, 2024, the Supreme Court issued a second order clarifying that the temporary restraining order applied to both emergency actions and activities involving permanent adoption of the rule until the petition was decided (Order, O'Connor, J.S.C., Agudath Israel of America, No. 909589-24 [Sup. Ct., Albany County, Nov. 1, 2024]).
[10] Neither the guidance nor the district indicated if this jurisdictional viewpoint was conveyed publicly or only privately to the district, when it was communicated, or to whom. There was no public expression of these points that the undersigned was aware of until policymakers began rulemaking activities in May 2024; however, as the number of allegations began to mount that the district's CSEs had not been convening and services were not being delivered, at that point the district began to respond by making unsuccessful jurisdictional arguments to SROs in the past, which decisions were subject to judicial review but went unchallenged (see e.g., Application of a Student with a Disability, Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068; Application of a Student with a Disability, Appeal No. 23-121). The guidance document is no longer available on the State's website; however, a copy of the August 2024 rate dispute guidance is included in the administrative hearing record as an attachment to the district's motion to dismiss (see IHO Ex. II at pp. 18-27).
[11] The parent cites Application of a Student with a Disability, Appeal No. 23-033 in support of this assertion. I note that the facts of that case are distinguishable from the present matter. In that proceeding the district failed to appear at the impartial hearing and did not raise the June 1 affirmative defense during the impartial hearing, and the SRO determined that the IHO improperly addressed the June 1 deadline issue because the district failed to raise it during the hearing process. Here, there is no dispute that the district raised the defense and, moreover, it presented argument and evidence on the issue.
[12] Generally, an SRO gives due deference to the credibility findings of an IHO, unless non-testimonial evidence in the hearing record justifies a contrary conclusion or the hearing record, read in its entirety, compels a contrary conclusion (see Carlisle Area Sch. v. Scott P., 62 F.3d 520, 524, 528-29 [3d Cir. 1995]; P.G. v. City Sch. Dist. of New York, 2015 WL 787008, at *16 [S.D.N.Y. Feb. 25, 2015]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 330 [E.D.N.Y. 2012], aff'd, 725 F.3d 131 [2d Cir. 2013]; Bd. of Educ. of Hicksville Union Free Sch. Dist. v. Schaefer, 84 A.D.3d 795, 796 [2d Dep't 2011]; Application of a Student with a Disability, Appeal No. 12-076). Here, the hearing record lacks a compelling reason to disturb the IHO's credibility findings as the IHO was in the best position to assess the testimony and neither the documentary evidence nor the hearing record in its entirety justifies a contrary conclusion.