STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-130
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
The Law Office of Philippe Gerschel, attorneys for petitioner, by Philippe Gerschel, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied his request that respondent (the district) fund the costs of the special education teacher support services (SETSS) delivered to the student by "Stepfwd, LLC" (Stepfwd) for the 2022-23, and 2023-24 school years. The district cross-appeals from that portion of the IHO's decision which failed to dismiss the parent's due process complaint notice for failure to timely request equitable services from the district. The appeal must be dismissed. The cross-appeal must be sustained.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.
Briefly, a CSE convened on March 8, 2021, found the student eligible for special education as a student with a speech or language impairment, and developed an IESP with a projected implementation date of September 7, 2021 (Parent Ex. B).[1], [2] The CSE recommended that the student receive five periods per week of SETSS in a group, along with one 40-minute session per week of individual counseling, one 40-minute session per week of group counseling, two 40-minute sessions per week of individual speech-language therapy, and two 40-minute sessions per week of individual occupational therapy (OT) (id. at p. 13).[3] The IESP reflects that, for the 2021-22 school year, the student was "Parentally Placed in a Non-Public School" (id. at p. 15).
On September 4, 2022, the student's mother, through her attorney, sent the district an email, with an attached letter dated September 6, 2022, which indicated that she "consent[ed] to all services recommended" in the student's March 2021 IESP and agreed that they be implemented by the district (Parent Ex. C). Further, the parent advised that she was unable to locate providers to deliver the student's SETSS and related services at the district's standard rate, and that she "ha[d] no choice" but to unilaterally obtain providers for the recommended services and seek reimbursement from the district (id. at p. 2). The parent also notified the district that the student was parentally placed at a nonpublic school (id.).
On September 8, 2023, the parent executed a contract with Stepfwd to provide the recommended services to the student, including SETSS at a specific rate for the 2023-24 school year (see Parent Ex. G).[4] In October and November 2023, the student participated in a neuropsychological evaluation, and a report was prepared on December 27, 2023 (Dist. Ex. 4).
In an email dated December 29, 2023, the parent's attorney sent the student's neuropsychological evaluation report to the district and requested a CSE meeting to review the results of that evaluation (Parent Ex. E). A CSE convened on February 8, 2024, to review the results of the neuropsychological evaluation and again found the student eligible for special education as a student with a speech or language impairment (Parent Ex. F).[5] The CSE recommended that the student continue to receive five periods per week of group SETSS, along with one 40-minute session per week of individual counseling services, two 40-minute sessions per week of group counseling services, one 40-minute session per week of individual OT, and two 40-minute sessions per week of individual speech-language therapy (id. at p. 10). The February 2024 IESP indicated that the student remained parentally placed in a nonpublic school (id. at p. 13).
A. Due Process Complaint Notice
In an amended due process complaint notice dated November 6, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2022-23 and 2023-24 school years (Nov. 6, 2024 Amended Due Process Compl. Not. at p. 2).[6], [7] The parent asserted that he was "concerned regarding the implementation of the 3/8/2021 IESP and 2/8/2024 IESP for the 2022-23 and 2023-24 school years" (id. at p. 2). The parent alleged that he was unable to find providers for the services recommended for the 2022-23 and 2023-24 school years, and the district's failure to implement the recommendations resulted in a denial of a FAPE (id. at pp. 2-3). For relief, the parent requested funding for the services provided to the student during the 2022-23 and 2023-24 school years and a bank of compensatory education for the services that were recommended but that the student did not receive during both school years (id. at p. 3).
B. Impartial Hearing Officer Decision
This matter proceeded over a total of 37 separate appearances beginning in October 2022 and concluding on January 10, 2024 (Tr. pp.1-194).[8] The district did not present any witnesses and the parent presented a single witness (Tr. pp. 175-89). In a decision dated January 20, 2025, the IHO first summarized the positions of the parties, noting that the district asserted that the parent failed to notify the district of his intent to parentally place the student prior to June 1 of the relevant school years (IHO Decision pp. 2-3). The IHO then found that the district did not "assert that it provided the [s]tudent with a FAPE" and did not call any witnesses for either school year at issue (id. at p. 3). The IHO held that documentary evidence, unsupported by testimony, was insufficient to establish the provision of a FAPE, that the district did not provide a "cogent or responsive explanation" of the CSE's recommended program, and that based on those factors, the district did not meet its burden of proof that it offered a FAPE to the student (id. at p. 8).
Next, the IHO determined that for the 2022-23 school year the parent did not present testimony or documentary evidence in support of his position that the unilateral services provided by Stepfwd were appropriate (IHO Decision at pp. 9-10). The IHO found that the witness testimony and documentary evidence failed to establish that the student was provided with instruction designed to meet the student's needs, noting that the parent failed to offer provider credentials for the 2022-23 school year and the progress report included in the parent's presentation of evidence did not "show any progress that was made" during the 2022-23 school year (id. at p. 10).
The IHO also held the parent failed to meet his burden for the 2023-24 school year based on the lack of evidence (IHO Decision at p. 10). The IHO again held that the parent's documentary and testimonial evidence fell short of the burden of proof due to the lack of provider credentials and cited the progress report's lack of demonstrated progress for the 2023-24 school year (id.). Therefore, the IHO held that the parent failed to demonstrate the unilaterally-obtained services were appropriate (id.). With regard to equitable considerations, the IHO found that "testimony and documentary evidence [did] not make clear that the [p]arents cooperated with the CSE and provided the [district] with appropriate and timely written notice," and dismissed the parent's due process complaint notice (id. at pp. 10-11).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in dismissing the due process complaint notice. The parent alleges that the evidence in the hearing record indicates that the services provided by Stepfwd were designed to meet the student's needs. Further, the parent argues that the district waived its affirmative defense under Education Law § 3602-c, and alleges that the defense was not properly raised prior to the hearing such that the parent was given sufficient notice. As relief, the parent requests reversal of the IHO's findings and an award of funding for the costs of the student's unilaterally obtained SETSS at a rate of $200 per hour for the 2022-23 school year and $225 per hour for the 2023-24 school year.
In an answer and cross-appeal, the district argues that the IHO improperly failed to rule on the assertion of the "June 1" affirmative defense and, as a result of the parent's failure to notify the district prior to June 1 for the respective school years, the district was under no obligation to provide services and did not deny the student a FAPE. In the alternative, the district argues to uphold the IHO's findings that the unilaterally-obtained services provided by Stepfwd were not appropriate and that equitable considerations did not favor the parent. As relief, the district requests to sustain its cross-appeal and dismiss the parent's request for review.
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]).[9] "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.).[10] 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. June 1 Deadline
As an initial matter, I must first address the IHO's failure to rule on the district's June 1 affirmative defense. As stated above, the parties dispute whether noncompliance with the June 1 requirement of New York Education Law § 3602-c bars the parent's request for funding of the cost of unilaterally-obtained services for the 2022-23 and 2023-24 school years. The parent does not assert that she complied with the above-described June 1 requirement but, instead, contends that the district failed to properly raise the June 1 defense at the outset and that the district waived the June 1 defense through its conduct. The parent makes multiple arguments with regard to waiver, specifically, that the district should have raised its June 1 defense in its due process response and that the district effectively waived its June 1 defense by developing an IESP in February 2024, during the 2023-24 school year. [11]
New York Education Law § 3602-c, the State's dual enrollment statute, requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school, and for whom the parents seek to obtain educational services, to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[12]
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 *6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level"]; 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., 2011 WL 4375694, at *6, 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 on appeal, the district was not required to raise the June 1 defense in a due process response (see R.B., 2011 WL 4375694, at *4-*6 [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]). The evidence in the hearing record demonstrates that the district asserted a June 1 defense at the prehearing conference on August 2, 2024 and again in its closing brief (see Tr. p. 156; IHO Ex. II at pp. 4-7; IHO Decision at p. 3).[13] Given that the district timely and adequately raised the June 1 defense (see, e.g., Application of a Student with a Disability, Appeal No. 23-162 [reversing the IHO's determination that the district procedurally waived the June 1 defense by raising said defense for the first time in its closing argument]; cf. Application of a Student with a Disability, Appeal No.23-217 [finding that the district procedurally waived the June 1 defense by failing to raise said defense within the 10-day deadline established in the IHO's prehearing conference summary and order]),"[i]t was then incumbent on the parent to show that she made the request for dual enrollment services rather than on the district to prove that an event did not happen" (Application of a Student with a Disability, Appeal No. 24-404, citing Mejia v. Banks, 2024 WL 4350866, at *6 [S.D.N.Y. Sept. 30, 2024]).[14]
The parent's failure to present evidence of a written request for dual enrollment services is undisputed (see Req. for Rev. at pp. 1-9; Answer at pp. 2-6). Thus, the student's entitlement to equitable services for the 2022-23 and 2023-24 school years turns on whether the district impliedly waived the June 1 affirmative defense. A district may waive a procedural defense through its actions (see N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991] [stating that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct"); see also Application of the Bd. of Educ., Appeal No. 18-088). The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[15] However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" (N.Y. Tele. Co., 930 F.2d at 1011).
As discussed briefly above, the district created IESPs on March 8, 2021, March 1, 2022, and February 8, 2024 (Parent Exs. B; F; Dist. Ex. 2). While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver. This is due, in part, because the district is required to navigate requirements that are in tension with one another. On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services. In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]). Under these circumstances, a district may be required to develop an IESP for the student rather than awaiting a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]). Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.
Based on the foregoing, the convening of the March 2023 and February 2024 CSE to create new IESPs for the student, on its own, did not constitute a waiver of the June 1 defense. As noted above, there is no request by the parent for dual enrollment services for either the 2022-23 or 2023-24 school year in evidence or evidence of other communications from the parent except the September 4, 2022 10-day notice from the parent's attorney indicating that the parent would unilaterally obtain private services and the December 29, 2023 request to convene a CSE meeting to consider the results of the student's neuropsychological evaluation (see Parent Exs. C; E).[16] Therefore, I am constrained to find that the district was under no obligation to provide services to the student for the 2022-23 and 2023-24 school years under the dual enrollment statute and the parent is not entitled to relief for those school years.[17]
VII. Conclusion
Based on the findings above, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS SUSTAINED.
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] The parent's exhibits consist of pendency exhibits A-C, and hearing exhibits A-K. For ease of reference, citations to the parent's hearing exhibits will be cited to as parent exhibits and references to the parent's pendency exhibits will be cited to identify them as parent exhibits (Parent Pendency Exs. A-C; Parent Exs. A-K).
[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] Stepfwd, a limited liability company, has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[5] District exhibit 1 is a duplicate of parent exhibit F, for the purposes of this decision, parent exhibit F will be used to cite to the student's February 2024 IESP (compare Dist. Ex. 1, with Parent Ex. F). The IHO is reminded of her responsibility to exclude evidence that she determines to be irrelevant, immaterial, unreliable, or unduly repetitious (8 NYCRR 200.5[j][3][xii][c]).
[6] The November 2024 due process complaint notice is not paginated; for the purposes of this decision, the pages will be cited by reference to their consecutive pagination with the first page as page one.
[7] The parent's original due process complaint notice was filed on September 6, 2022 and contained allegations regarding the 2022-23 school year (Pendency Parent Ex. A). The parent subsequently amended the due process complaint notice on January 11, 2024 and February 23, 2024 (Parent Ex. B; Jan. 11, 2024 Amended Due Process Compl. Not.).
[8] On December 15, 2022, the IHO issued an interim order on pendency in which the IHO determined that the student's pendency program was based on a March 8, 2021 IESP and consisted of five periods per week of direct group SETSS, one 40-minute session per week of individual counseling, one 40-minute session per week of group counseling, two 40-minute sessions per week of individual speech-language therapy, and two 40-minute sessions per week of individual OT (see Interim IHO Decision on Pendency).
[9] 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]).
[10] 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.
[11] The parent also cites to Application of the Board of Education, Appeal No. 21-069 to support his argument. However, the cited portion of Application of the Board of Education, Appeal No. 21-069 is inapplicable to the present matter, as the parent cites to the portion of that matter that addressed the sufficiency of the parent's due process complaint notice and the sufficiency of the parent's due process complaint notice is not at issue in this matter. With respect to the June 1 notice portion of the decision in Application of the Board of Education, Appeal No. 21-069, the parents sent a request for services prior to the June 1 deadline to the nonpublic school district of location (see Application of the Bd. of Educ., Appeal No. 21-069). After the June 1 notice, and due to no fault of the parents, the nonpublic school decided to relocate outside of that district of location to a larger building to comply with COVID-19 safety precautions and the parents sent a new written notice to the new district of location (id.). The new district of location declined to convene and create an IESP because the parents did not comply with the June 1 deadline (id.). The SRO in that matter upheld the IHO's determination that the new district of location had to provide services to the student because the parents had initially complied with § 3602-c and provided a written request to the original district of location (id.). That appeal is unlike this proceeding because there is no evidence in the hearing record that the parent ever requested equitable services prior to June 1 of the 2022-23 or 2023-24 school years.
[12] With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available athttps://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available athttps://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
[13] According to the parent, the district was obligated to explain its actions or refusal to act, and assert any affirmative defenses, in a due process response "within the 10 day time [sic] frame required to submit a Due Process Response" (Req. for Rev. at p. 2). It is worth also noting that the parent's initial due process complaint notice in this matter was filed on September 6, 2022, with multiple amended due process complaint notices being filed thereafter on January 11, 2024, February 3, 2024, and November 6, 2024. As the district raised the June 1 defense at the August 2, 2024 hearing date, prior to the final amended due process complaint notice dated November 6, 2024, even if the district were required to raise the defense within the time frame asserted by the parent, it had done so in this matter (see Tr. p. 156; Nov. 6, 2024 Amended Due Process Compl. Not.).
[14] "[A]lthough the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative" (Application of a Student with a Disability, Appeal No. 25-067, citing Mejia, 2024 WL 4350866, at *6 [noting that "it is unclear how the school district could have proved . . . a negative"]).
[15] The statute supports a policy of excluding resident students from receiving services under an IESP if parents miss the June 1 deadline, but, read as a whole, does not clearly indicate that school districts are required to bar resident students whose parents have missed the deadline (see Application of a Student with a Disability, Appeal No. 23-032). For example, the statute indicates that "[b]oards of education are authorized to determine by resolution which courses of instruction shall be offered, the eligibility of pupils to participate in specific courses, and the admission of pupils. All pupils in like circumstances shall be treated similarly" (Educ. Law § 3602-c[6] [emphasis added]). The statute suggests that a Board could elect to admit students who have missed the deadline for dual enrollment or refuse to admit such students but should not act in a discriminatory manner by admitting some while rejecting others in similar circumstances. Consistent with this reading, there is State guidance indicating that "[i]f a parent does not file a written request by June 1, nothing prohibits a school district from exercising its discretion to provide services subsequently requested for a student, provided that such discretion is exercised equally among all students with disabilities who file after the June 1 deadline" ("Frequently Asked Questions About Legislation Removing Non-Medical Exemptions from School Vaccination Requirements" Follow-Up, at p. 4 [DOH/OCFS/SED Aug. 2019], available athttps://www.health.ny.gov/prevention/ immunization/schools/school_vaccines/docs/2019-08_vaccination_requirements_faq.pdf).
[16] It appears that the parent was also in contact with the district in February 2023 regarding a pending due process complaint notice that he no longer intended to pursue (Dist. Exs. 3; 5 at p. 2). Moreover, it appears that the district also sent the parent a "Parent Notice of Intent" letter on May 2, 2023 (Dist. Ex. 5 at p. 1).
[17] The district has not appealed the IHO's pendency determination and nothing in this decision should be deemed to relieve the district of its obligations under pendency.