STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-264
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Gulkowitz Berger LLP, attorneys for petitioner, by Shaya Berger, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Lindsay R. VanFleet, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private services delivered by Always a Step Ahead, Inc. (Step Ahead) for the 2024-25 school year. The district cross-appeals, arguing that the IHO did not have jurisdiction over the parent's claims. The appeal must be dismissed. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programming 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 on March 13, 2024, found that student was eligible for special education as a student with a learning disability, and developed an IESP for the 2024-25 school year (kindergarten) (see Parent Ex. B).[1], [2] The IESP reflected that the student would be parentally placed in a nonpublic school (id. at pp. 1, 16). The CSE recommended that the student receive three periods of direct group special education teacher support services (SETSS) per week and two 30-minute sessions of individual occupational therapy (OT) per week (id. at p. 13).
According to the hearing record, Step Ahead began providing the student with SETSS on November 4, 2024 (Parent Ex. F at p. 1).[3] The parent signed a contract with Step Ahead on November 19, 2024 for the delivery of services set forth in the student's March 2024 IESP for the 2024-24 school year, including SETSS at the rate of $200 per hour and related services at the rate of $250 per hour (see Parent Ex. C).
A. Due Process Complaint Notice
In an amended due process complaint notice dated March 20, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) and equitable services for the 2024-25 school year (see Parent Ex. A).[4] The parent indicated that she did not contest the appropriateness of the services recommended in the March 2024 IESP, but was seeking an "order that would make the IE[S]P and the services recommended therein the Student's educational program for the 2024-2025 school year" (id.). The parent asserted that the district did not implement the student's IESP and that, therefore, she was required to arrange for private providers to deliver the student's services during the 2024-25 school year (id.). As relief, the parent sought an "order that would require the [district] to fund any provider the parent [was] able to obtain for any service on the IE[S]P" that was provided in the 2024-25 school year at the provider's rate (id.). The parent also invoked pendency and requested compensatory education "as may be appropriate" to remedy the district's failure to implement the student's services (id.).
B. Impartial Hearing Officer Decision
An impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 27, 2025 (see Tr. pp. 1-16). In a decision dated March 31, 2025, the IHO found that the district did not meet its burden to prove that it provided the student a FAPE for the 2024-25 school year but that the parent did not meet her burden to demonstrate the appropriateness of the unilaterally obtained services (IHO Decision at pp. 2, 4, 7-8). With regard to the services from Step Ahead, the IHO noted that the parent failed to submit any evidence "regarding the services provided by Agency, methodologies used, and how the services were tailored to meet [the] Student's needs" (id. at p. 7). The IHO found that the progress report described only the student's then-present levels of performance, the time sheets only described "what [the] Student did at school" but did not describe the student's SETSS sessions, and the parent declined to call any witness from the agency to testify as to services provided to the student (id.). Therefore, the IHO held that there was insufficient evidence to establish that the SETSS provided to the student for the 2024-25 school year were appropriate and denied the parent's request for direct funding of the student's services (id. at pp. 7-8).
As a final matter, the IHO found that, because the matter arose under Education Law § 3602-c, rather than the IDEA, and because the matter did not involve a dispute regarding the identification, evaluation, or educational placement of the student, the student was not entitled to pendency (IHO Decision at p. 7).
IV. Appeal for State-Level Review
The parent appeals, arguing that the IHO erred in denying the parent's requested relief on the merits as well as under pendency. The parent asserts that the IHO erred in finding that the student was not entitled to pendency services, arguing that students with IESPs are entitled to pendency under the law. The parent argues that the district was required to continue funding services from the last agreed upon placement, namely the March 2024 IESP, during the pendency of the dispute. Since, the district refused to provide the services to the student, forcing the parent to find private providers, the parent contends that the district is required to fund the unilaterally obtained services.
With respect to the unilaterally obtained services, the parent argues that the program secured by the parent was the same program the district was required to provide and, therefore, should have been funded. Moreover, the parent contends that the evidence showed the services were reasonably calculated to enable the student to receive educational benefit at the time the parent's "placement decision was initiated." The parent asserts that the IHO erred in analyzing what the provider did or what methodologies were used after that point. In any event, however, the parent argues that the progress report and attendance records demonstrate that the services were appropriate. As to Step Ahead's hourly rate, the parent asserts that her contract with the company stated the specific rate for the SETSS and there was no evidence in the hearing record that the rate was unreasonable.
In an answer with cross-appeal, the district argues that the IHO lacked subject matter jurisdiction to address claims under Education Law § 3602-c but correctly denied relief under pendency, applied the Burlington-Carter standard, and found that the parent failed to demonstrate that the unilaterally obtained services provided were appropriate for the 2024-25 school year. If equitable considerations are reached on appeal, the district argues that the hourly rate charged by Step Ahead was excessive.[5]
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]).[6] "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.).[7] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Subject Matter Jurisdiction
As a threshold matter, it is necessary to address the issue of subject matter jurisdiction raised by the district in its cross-appeal. Subject matter jurisdiction refers to "the courts' statutory or constitutional power to adjudicate the case" (Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 [1998]). The district argues in its cross-appeal 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. Although not explicitly argued at the impartial hearing before the IHO, a lack of jurisdiction "can never be forfeited or waived" U.S. v. Cotton, 535 U.S. 625, 630 [2002]). Thus, according to the district, IHOs and SROs lack subject matter jurisdiction with respect to pure IESP implementation claims.
In numerous recent 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. 25-220; Application of a Student with a Disability, Appeal No. 25-218; Application of a Student with a Disability, Appeal No. 25-106; 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 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 district's argument under federal law is correct; however, the student did not merely have a services plan developed pursuant to federal law and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.
Separate from the services plan envisioned under the IDEA, the New York Education Law affords 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]).[8]
Concerning students who attend nonpublic schools, Education Law § 3602-c 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]).
Consistent with the IDEA, Education Law § 4404, which concerns appeal procedures for students with disabilities, provides that a due process complaint notice may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a [FAPE]" (Educ. Law § 4404[1][a]; see 20 U.S.C. § 1415[b][6]). SROs have in the past, taking into account the text and legislative history of Education Law § 3602-c, concluded that the legislature has not eliminated 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 (seeApplication 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).[9] In addition, the New York Court of Appeals has explained that students authorized to receive dual enrollment 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.[10]
After legislative amendments took effect in 2007, the State Education Department issued guidance further interpreting Education Law § 3602-c, to provide that "[a] parent of a student who is a [New York State] resident who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location" ("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 at p. 5, VESID Mem. [Sept. 2007] [emphasis added], https://www.nysed.gov/sites/default/files/special-education/memo/chapter-378-laws-2007-guidance-on-nonpublic-placements-memo-september-2007.pdf).
The number of disputes involving the dual enrollment statute statewide remained very small until only a handful of years ago. In the last several years, the number of due process filings dramatically increased to tens of thousands per year within certain regions of this school district. As a result, public agencies and parents began to grapple with addressing these circumstances within the district.[11]
In its cross-appeal, the district contends that, under the Education Law, "there is not, and never has been, a right to bring a complaint for the implementation of IESP claims or enhanced rate services." Consistent, in part, 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]).[12] However, the guidance was issued in conjunction with a regulation that was adopted on an emergency basis and has since lapsed.
Case law has not addressed the issue of whether Education Law § 3602-c imposes limitations on the right to an impartial hearing under Education Law § 4404 such as precluding due process complaints on the implementation of an IESP or whether certain types of relief available under § 4404 are repudiated by the due process provisions of § 3602-c. Instead, case law has carved out a narrow exception that provides that exhaustion is not required if the "plaintiff's claim is limited to the allegation that 'a school has failed to implement services that were specified or otherwise clearly stated in an IEP'" (Levine v. Greece Cent. Sch. Dist., 353 F. App'x 461, 465 [2d Cir. 2009], quoting Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 489 [2d Cir. 2002] see Intravaia v. Rocky Point Union Free Sch. Dist., 919 F. Supp. 2d 285, 294 [E.D.N.Y. 2013]).
More recently, the New York State Supreme Court has also signaled that administrative exhaustion is not required, indicating that, if the district fails to implement the services listed on their child's IESP, the parents seeking an enhanced rate apply to the district's Enhanced Rate Equitable Services (ERES) unit, and the requested rates are denied, the parents could seek judicial review (Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, slip op. at 7 [Sup. Ct., Albany, County, July 11, 2025]). However, the Court did not address whether parents must use the ERES procedure or whether they may also utilize the administrative due process procedures. Instead, the Court denied petitioners' request for a preliminary injunction as moot because they sought to enjoin a State regulation that had lapsed (Agudath Israel of America, No. 909589-24, slip op. at 6). The Court further denied their request for a permanent injunction because the ERES procedure and subsequent opportunity for judicial review provided "an adequate remedy at law" (id. at 7). The Court acknowledged that all parties believed the backlog in resolving the large number of "enhanced rate" cases in due process proceedings is "a significant problem" but did not resolve the parties' disagreement as to whether rate disputes could be resolved under the text of Education Law § 3602-c (id.).[13] Although petitioners contended that the ERES unit was not equipped to address enhanced rate requests, the Court also declined to address that issue because the district was not a party to the litigation (id.).
Thus, case law has established that, within the district, parents may use the ERES procedures and seek judicial review regarding the lack of implementation of the services in a child's IESP, particularly where the due process complaint is limited to that issue and the cost of such services; however, the Court declined hold that the dual enrollment statute precludes parents from using the due process procedures in Education Law § 4404 to resolve the dispute set forth in this case. Accordingly, the district's cross-appeal seeking a dismissal on the ground that the IHO and SRO lack subject matter jurisdiction to determine the merits of the parent's claims must be denied.
B. Pendency
Turning to the parties' dispute over pendency, the IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).[14] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]). A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46,709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).
It is well-settled that a student's entitlement to pendency arises automatically, begins on the date of the filing of the due process complaint notice, and continues until the conclusion of the matter (20 U.S.C. § 1415[j]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; Zvi D., 694 F.2d 904, 906). I am not persuaded by the IHO's reasoning that the student is not entitled to pendency because the parent sought equitable services pursuant to Education Law § 3602-c. Education Law § 3602-c provides for review of IESPs pursuant to § 4404, and Education Law § 4404 provides that a student shall remain in his or her then-current educational placement "[d]uring the pendency of any proceedings conducted pursuant to" Education Law § 4404 (Educ. Law § 4404[4][a]; Application of a Student with a Disability, Appeal No. 17-034). The New York Court of Appeals confirmed that
[New York State Education Law §] 3602–c authorizes services to private school handicapped children and affords them an option of dual enrollment in public schools, so that they may enjoy equal access to the full array of specialized public school programs. . . . The statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school.
(Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988]).
Here, the parties do not dispute overall that the March 2024 IESP would have formed the basis for the student's pendency during the instant administrative proceedings, which, among other things, recommended three periods per week of group SETSS and two 30-minute sessions per week of individual OT services (Parent Ex. B at p. 13). The district argues that, when the parent acted unilaterally in arranging for private SETSS, she rejected pendency. Indeed, the parent made clear in her due process complaint notice that she made unilateral arrangements to obtain services for the student from private providers (see Parent Ex. A). These consisted of SETSS from Step Ahead (see Parent Ex. C). Thus, at this juncture it appears that it is the parent, not the district, that altered the status quo for purposes of stay-put.
The Second Circuit has explained that a parent may not unilaterally move a student to a preferred nonpublic school and still receive pendency funding, since it is the district that is authorized to decide how (and where) a student's pendency services are to be provided as per the text and structure of the IDEA and given that the district is the party responsible for funding the pendency services (Ventura de Paulino, 959 F.3d at 532-35) The Court described that:
[W]hat the parent cannot do is determine that the child's pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school's services on a pendency basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district's authority to determine how pendency services should be provided.
(id. at 534).
In short, the parent's decision to unilaterally obtain the private SETSS constituted a rejection of the pendency placement (see M.M. v. New York City Dep't of Educ., 2024 WL 3904771, at *9 [E.D.N.Y. Aug. 22, 2024]). The district had no input and did not agree to the change of the status quo, and the unilateral program selected by the parent has not been found appropriate in any administrative proceeding. Accordingly, the parent is not entitled to the ultimate relief sought in this matter as the student's pendency placement.
C. Unilaterally Obtained Services –Step Ahead
In this matter, 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 2024-25 school year and, as a self-help remedy, she unilaterally obtained private services from Step Ahead 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]).[15] 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).
Here, neither party has appealed the IHO's finding that district failed to offer the student a FAPE for the 2024-25 school year (IHO Decision at p. 4). Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (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]).
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 v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). 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 Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203-04 [1982]; 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. The Student's Needs
Although not in dispute on appeal, a brief discussion of the student's needs is necessary to resolve the issue of whether the SETSS delivered by Step Ahead were appropriate for the student for the 2024-25 school year.
The March 2024 IESP reported the student would attend kindergarten in September 2024 at a nonpublic religious school (Parent Ex. B at p. 1). According to cognitive testing, the student's full-scale intelligence quotient (FSIQ) was 86, in the low average range, with similar scores in nonverbal and verbal abilities (id.). In the area of cognition, the IESP stated that the student could point to pictures identified by name but not by function and was unable to find small details in pictures or answer simple comprehension questions about a picture or a short story (id. at p. 2). The IESP reflected that the student identified the names of colors and shapes but could not classify objects according to color or function or match objects to pictures (id.). The student rote completed a simple puzzle, colored a picture, identified size concepts big/little, understood more/less, identified items as first/middle/last, and understood language concepts such as under, beside, in and on (id.). She identified letters, numbers and shapes, counted to 10, counted with 1:1 correspondence to six, and spelled her name, but did not retell or predict what happens next in a story, or "sequence a book" (id.). Parent report included in the IESP indicated that the student had "appropriate concepts"; however, "her skills [we]re inconsistent and based on her focus and emotional regulation" (id.).
The student's adaptive functioning scores were adequate in the domains of motor and communication; however, were in the moderately low range in the socialization and daily living skills domains (id.). As related to social/emotional functioning, testing measures indicated delays in areas of temperament, self-regulation, hypersensitivity, and detachment (id. at p. 2). Measures of receptive and expressive language revealed average standard scores of 98 and 91, respectively, in addition to articulation scores within the average range (id.). The IESP reported that, in the area of articulation, the student slurred words in sentences, with some phrases understood and others "so unclear that they resembled gibberish" (id. at p. 3). In relation to visual motor integration and grasp skills testing, the student's fine motor quotient of 76 was more than one and a half standard deviations below average, and, on sensory skills testing, the student's score was two standard deviations below the mean, with reported differences in areas of visual/auditory sensitivity and auditory filtering (id.).
The March 2024 IESP included information reported by the student's classroom teacher that the student had needs related to holding scissors and cutting, with these activities tending to overwhelm to the student (Parent Ex. B at p. 3). Per teacher report, the IESP reflected that the student had difficulty focusing and participating during group activities, had difficulty transitioning, and "need[ed] refocusing and redirection throughout the day" (id.). The IESP reported that the student struggled to follow the same consistent routine provided daily, would not know what to do "even with verbal prompts," and needed visual charts to provide steps of the routine schedule (id.). As related to literacy, the IESP reflected the teacher's report that the student was able to name some letters and sounds (id.). According to the IESP, the student presented with poor eye contact, inconsistently demonstrated the ability to share items and take turns, rarely initiated play, and preferred to play alone (id. at p. 4). The IESP reported that the student required constant individualized instruction to initiate and remain engaged in activities, otherwise she would be withdrawn (id.). The student rarely engaged in pretend play and instead wandered around the classroom without playing with toys in a meaningful manner (id.). As reflected in the IESP, the classroom teacher reported the student was very distracted, did not participate during circle time, and needed "constant prompts to get through the day" (id.). Per teacher report, the IESP reflected that the student had difficulty with emotional regulation and that this impacted her academic progress (id.).
According to the March 2024 IESP, the classroom teacher opined that the classroom setting overwhelmed the student and suggested adding counseling to support this need, whereas the parent had more concerns related to the student's academic needs and rejected counseling at that time (Parent Ex. B at p. 5). At the CSE meeting, the classroom teacher reported the student had deficits with sustained attention, distractibility, on task behavior, and transitioning, and stated the student was very weak and struggled to hold a scissor and cut (id. at p. 6).
2. Services from Step Ahead
As an initial matter, contrary to the parent's contention, a review of the appropriateness of a unilateral placement is not restricted to only the evidence available to the parent at the time she made the unilateral placement decision insofar as implementation of the programming and services and the student's progress are relevant to the analysis (see Khanimova v. Banks, 2025 WL 722876, at *6 [S.D.N.Y. Mar. 6, 2025], citing C.L., 744 F.3d at 836). Further, rather than being confined to a review of the types of services included in the unilateral programming as the parent contends, the standard, as described above, must take into account totality of the circumstances, which may include factors such as methodology, student performance, and the delivery of the services.
Regarding the documentary evidence about the student's SETSS, the hearing record includes the SETSS contract with Step Ahead; a document containing SETSS session notes for sessions between November 4, 2024 through March 12, 2025; and a SETSS progress report dated January 12, 2025 (Parent Exs. C; F; G). Further, the hearing record includes documentation that the SETSS provider held an initial certificate for students with disabilities in all grades, and an initial certificate for childhood education of students grade one through sixth (Parent Ex. E).
Based upon a review, the IHO is correct in that the January 2025 progress report provided information mainly in relation to describing the student's then-present levels of performance (see IHO Decision at p. 7; Parent Ex. G). The progress report identified the frequency of SETSS, named the private religious school the student attended, and listed the school year and the student's grade (kindergarten) (Parent Ex. G at p. 1). The progress report identified the student's strengths and needs in areas of math, reading, writing, and social interactions (see id. pp. 1-3). The progress report stated that the student performed slightly below average in areas of math, reading, and writing, and had shown mastery in various skills although "still ha[d] room for improvement in certain areas" (id. at p. 1). Needs identified in math included counting, writing numbers through 20, naming digits one through 20, using positional names, responding to "how many are there" questions, and figuring out how many were needed to get to ten (id.). In writing, the student needed to work on stating an opinion about a familiar topic and providing a reason to support it (id.). In the area of reading, the student needed to work on following words from left to right and top to bottom; identifying the front and back cover of books and the title; decoding using onset-rhyme when needed; isolating sounds within single-syllable words; and participating in collaborative conversations with peers and adults following agreed-upon rules (id.). The progress report included goals to be addressed in areas of math, writing, and reading, but did not include any information about supports provided to the student or progress made (id. at pp. 1-2).
The SETSS session notes included the times that the one-hour sessions were provided to the student at school, mainly from 3:00 to 4:00 pm, with some also listing one to five goals, and others not listing goals (see Parent Ex. F). The goals listed corresponded to some of the annual goals from the student's March 2024 IESP and targeted age-appropriate social skills, remaining focused and attending during activities, following class rules by transitioning and following the daily schedule, using age-appropriate language skills during circle, and demonstrating early writing and math skills (compare Parent Ex. F at pp. 3-15, with Parent Ex. B at pp. 7-12).
All of the entries included a "note" regarding the session; however, many such notes only provided a comment related to what the student did at school in the form of an observation (see Parent Ex. F). For example, a January 2025 session note provided a brief comment that the student "struggled to remain focused during unstructured play with a peer" and reported in the same note she "got easily distracted by various environmental distractions" (id. at p. 6). Some notes observed that the student successfully completed a task, such as, during a session at school, the student "successfully completed a math worksheet with minimal assistance" (id. at p. 7). Other notes described that, during a session, the student "effectively engaged in play with a peer" or "demonstrated the skill of organizing her papers by stacking them neatly and placing them in her folder" (id. at pp. 1-15). The majority of the sessions notes did not describe the specially designed instruction delivered by the SETSS provider to support the student's areas of need, although some of the session notes described the student engaged in activities related to underlying need areas (i.e., attention, engaging with peers and adults, following instructions, forming letters, transitioning between activities) (id. at pp. 1-9, 13), and some identified that the provider supported the student with some level of prompting (id. at pp. 1, 2, 4, 7, 8, 9, 13, 15).[16] Further, some of the observations in the notes, in conjunction with the goals listed, could be read to reflect the skills the SETSS session focused on or at least information related to need areas that were the target of listed academic goals (see id. at pp. 10-13).[17] However, the listing of the goals did not always connect with the session descriptions included in the notes. For example, the first listing of an early writing goal that addressed printing letters, copying words and sentences and completing sentences with picture drawings was entered on a session note dated December 23, 2024; however, the note for this session stated the student transitioned smoothly from circle to table activities and the student was able to work on using the appropriate tone of voice during conversations, and did not report on the student's writing goal (id. at p. 4).[18]
Moreover, none of the entries included or copied any IESP goals that addressed the student's identified needs in the area of reading (compare Parent Ex. B at pp. 10-11, with Parent Ex. F).[19] In addition to the March 2024 IESP that identified reading as an area of need, the January 2025 Step Ahead progress report also identified reading as an area of need for the student and provided four goals to address her reading needs that focused on following words from left to right, top to bottom; identifying the front and back covers, titles and authors of books, decoding words using onset rhyme strategy when needed during guided reading sessions, and participating actively in collaborative conversations by asking at least one question per conversation topic (Parent Ex. G at pp. 1, 3). The student's SETSS provider did not include any of these reading goals in her session notes (compare Parent Ex. G at p. 3, with Parent Ex. F at pp. 1-15).
Finally, although the parent's contract with Step Ahead indicated that the agency would provide the student the services set forth in the March 2024 IEP and listed an hourly rate for related services, there is no indication in the hearing record that Step Ahead provided the student with OT services and no explanation relating thereto (see Parent Exs. B at p. 13; C).
Based on the foregoing, the session notes reflected that the Step Ahead SETSS provider completed weekly sessions with the student and at least observed the student and provided some level of prompting during some sessions to support goal areas related to academic areas of social skills, transitioning, language skills, and focus/attention (see generally Parent Ex. F); however, the neither the January 2025 progress report nor the sessions notes describe with any detail the specially designed instruction provided and the sessions notes to not reflect that the services addressed the student's reading needs. As the IHO noted, the parent did not present any witness testimony to fill in these gaps (see IHO Decision at p. 7).
Therefore, while there is some information regarding the SETSS sessions provided to the student during the 2024-25, the limited hearing record did not include sufficient evidence of the specially designed instruction provided to the student in all areas of need and particularly in the area of reading. Accordingly, there is insufficient basis to disturb the IHO's finding that the parent did not meet her burden to prove that the unilaterally obtained services were tailored to meet the student's needs during the 2024-25 school year (see IHO Decision at p. 7).
VII. Conclusion
Having found insufficient basis in the hearing record to disturb the IHO's determination that the parent did not meet her burden to demonstrate that the services provided by Step Ahead were appropriate, the necessary inquiry is at an end (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134). Further, while my reasoning differs, it is also not necessary to modify the IHO's denial of the parent's request for funding of unilaterally obtained services pursuant to pendency.
THE APPEAL IS DISMISSED.
THE CROSS-APPEAL IS DISMISSED.
Footnotes
[1] The hearing record includes duplicate copies of the March 2024 IESP (compare Parent Ex. B, with Dist. Ex. 2). For purposes of this decision, the parent's exhibit is cited.
[2] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[3] Step Ahead has not been approved by the Commissioner of Education as a school or agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The parent's original due process complaint notice was dated January 7, 2025 (see Parent Ex. H).
[5] The district also argues that the parent's appeal should be rejected for failing to comply with the practice regulations. I have reviewed the pleadings, and I decline to reject the parent's request for review on the grounds stated by the district.
[6] 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]).
[7] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available athttps://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[8] 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]).
[9] In 2004, the State Legislature amended subdivision two of the Education Law § 3602-c, effective June 1, 2005 (see L. 2004, ch. 474 § 2 [Sept. 21, 2004]). Prior to such date, the subdivision read, in part, as follows:
Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.
(L. 1990, ch. 53 § 49 [June 6, 1990] [emphasis added]). The amendments that took effect on June 1, 2005, removed the last sentence of subdivision two relating to the review of a board of education's failure or refusal to provide equitable services by the Commissioner (L. 2004, ch. 474 § 2). A review of the statute's history and the New York State Assembly Memorandum in Support of Legislation shows that the Legislature intended to remove the language that an appeal to the Commissioner of Education under Education Law § 310 was the exclusive vehicle for review of the refusal or failure of a board of education to provide services in accordance with Education Law § 3602-c, as the earlier sentence in subdivision two of such section authorized review by an SRO from a district CSE's determination in accordance with Education Law § 4404 (Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). The Memorandum further explained:
The language providing for review of a school district's failure or refusal to provide services ONLY in an appeal to the Commissioner of Education under Education Law § 310 is unnecessary, confusing and in conflict with the earlier language authorizing review by a State review officer pursuant to § 4404(2) of the Education Law of a committee on special education's determination on review of a request for services by the parent of a nonpublic school student. At the time it was enacted, the Commissioner of Education conducted State-level review of an impartial hearing officer's decision under § 4404(2) of the Education Law in an appeal brought under § 310 of the Education Law, but that is no longer the case. The Commissioner has jurisdiction under Education Law § 310 to review the actions or omissions of school district officials generally, so it is unnecessary to provide for such review in § 3602-c and, now that a State review officer conducts reviews under section 4404 (2), it is misleading to have the statute assert that an appeal to the Commissioner is the exclusive remedy.
(Sponsor's Memo., Bill Jacket, L. 2004, ch. 474). Thus, the legislative amendments were intended to clarify the forum where disputes could be brought, not 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.
[10] The State Education Department treated dually enrolled students as attending other nonpublic institutions but also enrolled in the public school, provided parents requested services each year prior to June 1. For example,
Questions and Answers
1. What does "dual enrollment" mean?
Dual enrollment means that pupils enrolled in nonpublic schools may also be considered as enrolled in the public school in occupational education programs, gifted education programs, and programs for students with disabilities.
("Dual Enrollment Programs," available at https://www.p12.nysed.gov/nonpub/handbookonservices/ dualenrollment.html).
[11] 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. 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]); however enforcement was barred under a temporary restraining order (see Agudath Israel of America v. New York State Bd. of Regents, No. 909589-24, Order to Show Cause [Sup. Ct., Albany County, Oct. 4, 2024]), and the regulation has since lapsed.
[12] 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 SRO's 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, it has been added to the administrative hearing record.
[13] There is no definition of an "enhanced rate" much less an enhanced rate dispute, and many cases brought before the Office of State Review that one or both of the parties and/or the IHO characterize as an enhanced rate dispute involve a variety of alleged infractions by the district beyond the district's failure to implement services on an IESP, such as allegations that the district failed to convene a CSE to develop an IESP or that the IESP developed was not appropriate for the student.
[14] In Ventura de Paulino, the Court concluded that parents may not transfer a student from one nonpublic school to another nonpublic school and simultaneously transfer a district's obligation to fund that pendency placement based upon a substantial similarity analysis (see Ventura de Paulino, 959 F.3d at 532-36).
[15] 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 Step Ahead (Educ. Law § 4404[1][c]).
[16] For services delivered in February 2025, the session notes provided a description of activities but did not include any information as related to specially designed instruction, or even a level of prompting (Parent Ex. F at pp. 10-13). The notes reflected the following: the student "engaged in a structured tabletop activity for over [three] minutes"; the student "struggled to maintain focus during a jumping game with her peers"; the student "demonstrated focused attention while watching a time-lapse video showcasing various types of plants"; the student "experienced difficulty maintaining focus while engaging in dramatic play with peers"; and the student "effectively approached the teacher to share information about her mother" (id. at pp. 10-11). The February 18, 2025 note provided two sentences to describe the session stating "[the student], a five-year-old student with disabilities, encountered challenges in maintaining focus on her rainbow fruit project" and she "exhibited difficulty staying on task as she frequently became distracted by unrelated items and topics" (id. at p. 11). The remainder of the February SETSS sessions notes stated the following: the student "focused on a structured game with a peer for the duration of the whole game"; the student "consistently maintained focus while interacting with a peer for most of the session"; the student "consistently followed teacher instructions during a class math activity"; and the student "demonstrated focused engagement while participating in an unstructured play activity with a peer" (id. at pp. 12-13).
[17] The February 2025 session notes reflected information related to the student's social skills in interacting with her teacher and maintaining focus and attention during structured activities and unstructured play activities, and to some degree noted the student followed instruction during a math activity, although it did not indicate if the math activity related to the early math goal listed (Parent Ex. F at pp. 10-13).
[18] A January 2, 2025, session note was the first time an early math goal was listed, amongst other academic and writing goals (Parent Ex. F at pp. 5-6). Of approximately eight entries that listed math among other goals, five associated notes provided information related to math including that the student "demonstrated her ability to draw and write a given math scenario," "successfully completed a math worksheet with minimal assistance," "consistently followed teacher instructions during a class math activity," correctly wrote numbers during a math activity at school, and maintained focus during a fruit loop stringing and counting activity (id. at pp. 6, 7, 12, 14). However, other notes that included math as a goal reported the student's difficulty maintaining focus during a jumping game, and during a rainbow fruit project, with another reporting the student engaged in an unstructured play activity with a peer (id. at pp. 10, 11, 13). Here, these sessions could have contained math; however, the SETSS provider notes had limited detail regarding the activities as related to instruction provided or goals actually addressed during the sessions (see generallyid.).
[19] Specifically, the session notes did not reference goals in the IESP that addressed early reading goals to develop phonics/decoding skills at the kindergarten level through: correct production of letter sounds; matching the five short vowel sounds for each of the letters; recognizing familiar signs and symbols from the environment; rhyming words; identifying initial, medial and final sounds that are alike; blending sounds into words; and reading sight words (Parent Ex. B at pp. 10-11). The session notes did not reference the goal from the IESP that in one year the student would demonstrate reading comprehension skills on a kindergarten level as evidenced by: retelling a story in correct sequence; creating artwork to demonstrate and recall main details; identifying five details in a picture related to a story; and answering wh questions after listening to a story (compare Parent Ex. B at pp. 11, with Parent Ex. F at pp. 1-15).