STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-328
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 Toni L. Mincieli, 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 Headway Services and LGP Services LLC for the 2024-25 school year. The district cross-appeals from that portion of the IHO's decision which ordered pendency. The appeal must be sustained in part. The cross-appeal must be sustained in part and the matter remanded to the IHO for further proceedings.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed, and, therefore, the facts and procedural history of this case will not be recited in detail. Briefly, the student has received special education services since preschool during the 2018-19 school year, when an October 2018 Committee on Preschool Special Education (CPSE) recommended that she receive special education itinerant teacher (SEIT) services, occupational therapy (OT), physical therapy (PT), and speech-language therapy (see Parent Ex. B). During the 2022-23 school year, the student was in second grade at a nonpublic school, and results of formal testing indicated her overall cognitive, reading, and math skills were in the very low range (Parent Ex. C at p. 1). At that time, the student demonstrated receptive and expressive language delays, and her speech was described as "slow and belabored" (id. at pp. 2, 3). A CSE convened on March 21, 2023, found the student eligible for special education as a student with a speech or language impairment, and developed an individualized education program (IEP) with a projected implementation date of September 5, 2023 (id. at pp. 1, 18).[1] The March 2023 CSE recommended a 10-month program of integrated co-teaching (ICT) services in Yiddish consisting of ten periods per week for math and English, four periods per week for social studies, and three periods per week for sciences (id. at p. 13). The March 2023 CSE also recommended one 30-minute session per week of individual counseling services, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and three 30-minute sessions per week of individual OT (id. at p. 14).[2]
The student attended a mainstream nonpublic school during the 2024-25 school year (Parent Ex. K ¶ 17; Dist. Ex. 2 at p. 1). On September 16, 2024, the parent signed a parent service contract with LGP Services LLC (LGP Services) to deliver the student's speech-language therapy for the 2024-25 school year (Parent Ex. F).[3] The contract indicated that the LGP Services intended to provide three 30-minutes sessions per week of individual speech-language therapy in Yiddish at a rate of $300 per hour (id. at p. 2). In the contract, the parent confirmed that she was "liable to pay [LGP Services] the full amount for all recommended services mentioned-above delivered by [LGP Services] for the 2024-25 school year in the event that [the parent wa]s unable to secure funding from the [district] or elsewhere" (id.).
On September 23, 2024, the parent sent a letter to the district which indicated that she enrolled the student in a nonpublic school and requested the district provide special education services to the student (Dist. Ex. 9).[4]
A CSE convened on November 12, 2024, found the student remained eligible for special education as a student with a speech or language impairment, and developed an IESP for the student (Dist. Ex. 1 at p. 1). The November 2024 CSE recommended that the student receive five periods per week of group special education teacher support services (SETSS), one 30-minute session per week of individual counseling services, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of group speech-language therapy, and three 30-minute sessions per week of group OT (id. at p. 12).[5]
By prior written notice dated November 14, 2024, the district summarized the recommendations of the November 2024 CSE and indicated that "[t]he recommended services w[ould] be put into effect on 11/26/2024" (Dist. Ex. 2 at p. 2).
The parent signed a service contract with Headway Services (Headway) to deliver the student's "[s]pecial [e]ducation and related services program" for the 2024-25 school year (Parent Ex. E).[6], [7] The contract indicated that Headway would "make every effort to implement the recommended services mentioned above with suitable qualified providers for the 2024-25 school year"; however, the contract did not reflect the specific special education and related services the student was to receive from Headway (id. at p. 1). The contract also indicated that the parent agreed "to the following fees structure for any parts of the required [s]pecial [e]ducation and related services program that Headway Services may provide for the 2024-25 school year": $225 per hour for special education itinerant teacher (SEIT)/SETSS; $350 per hour for speech-language therapy; $350 per hour for OT, $350 per hour for PT; and $350 per hour for counseling (id.).[8] In the contract, the parent confirmed that she was "liable to pay Headway the full amount for all recommended services mentioned-above delivered by Headway Services for the 2024-25 school year in the event that [the parent wa]s unable to secure funding from the [district] or elsewhere" (id.).
A. Due Process Complaint Notice
In a due process complaint notice dated February 24, 2025, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (see Parent Ex. A). At the outset, the parent requested pendency and indicated that the student's pendency program was pursuant to the last agreed upon October 4, 2018 CPSE IEP, consisting of a 12-month program with five two-hour sessions per week of direct individual SEIT services in Yiddish, two one-hour sessions per week of indirect SEIT services in Yiddish, four 30-minute sessions per week of individual speech-language therapy in Yiddish, three 30-minute sessions per week of individual OT, and two 30-minute sessions per week of individual physical therapy (PT) (Parent Ex. A at p. 2). The parent also alleged that the March 2023 CSE failed to recommend an appropriate placement for the student (id. at p. 3).
Next, the parent asserted that she had not received a suitable school location letter for the 2024-25 school year and was unable "to locate such a program within the public school system on [her] own" (Parent Ex. A at p. 3). The parent also alleged that the November 2024 CSE relied on results from a February 2023 psychoeducational evaluation and reduced the student's recommendations from 10 periods of individual SEIT services to five periods of group SETSS (id.). The parent claimed that the student made progress "utilizing the SEIT program" and required either a continuation "of the broader SEIT program" or an appropriate placement in a "hybrid special education/general education program" that could address the student's "special education needs in a mainstream environment" (id.). The parent further alleged that because the district had not recommended a proper placement for the student, the parent was "left with no choice but to implement the SEIT program independently and seek reimbursement" from the district (id.). The parent also "reserved [her] right" to seek compensatory education services for those services the student was entitled to under pendency but did not receive during the 2024-25 school year (id.).
As relief, the parent requested a finding that: the March 2023 IEP and November 2024 IESP denied the student a FAPE for the 2024-25 school year; the district's failure to recommend a 12-month SEIT program denied the student a FAPE for the 2024-25 school year; and the district denied the student a FAPE by failing to recommend an appropriate placement for the 2024-25 school year (Parent Ex. A at p. 4). The parent also requested an order directing the district to fund the recommendations in the student's October 2018 CPSE IEP at the provider's contract rate and fund a bank of compensatory education for the "entire 2024-25 school year – or the parts of which were not serviced" at the "prospective provider's" contracted rate (id.).
B. Impartial Hearing Officer Decision
Prior to the impartial hearing, an IHO with the Office of Administrative Trials and Hearings (OATH) issued an order on pendency on March 7, 2025, ordering the district to provide the student's pendency program that was based on the October 2018 CPSE IEP consisting of 10 hours per week of direct individual SEIT services in Yiddish, two hours per week of indirect SEIT services, four 30-minutes sessions per week of individual speech-language therapy in Yiddish, three 30-minutes sessions per week of individual OT, and two 30-minutes sessions per week of individual PT (Interim IHO Decision). According to the order on pendency, the district was given an opportunity to respond and did not give its position on the student's pendency program (id.).
An impartial hearing convened on April 22, 2025 and concluded the same day (Tr. pp. 10-62).[9]
In a decision dated April 24, 2025, the IHO found that the parent failed to request services for the student by June 1, 2024 for the 2024-25 school year and therefore dismissed that parent's due process complaint notice with prejudice (IHO Decision at p. 5). The IHO determined that the district timely raised its June 1st affirmative defense during the impartial hearing (id. at pp. 5-6). The IHO noted that the district asserted that it was not in possession of any evidence that the parent submitted a written request for equitable services by the June 1 deadline before the commencement of the 2024-25 school year and that the parent did not dispute such fact (id.) The IHO determined that there was no evidence that the parent provided timely notice and that the district provided evidence of a late June 1st notice (id. at p. 6).
The IHO also stated she was not persuaded by the parent's two arguments: that the June 1st deadline was not relevant to this matter because the student had an IEP in June, and that the district waived the June 1st requirement by creating the November 2024 IESP (IHO Decision at p. 6). The IHO found that there was no evidence that the student was seeking a public-school placement, the parent "could not point to" any evidence in the hearing record that she was requesting a public-school placement for the student, and there was undisputed evidence that the student was attending a nonpublic school and receiving services from private providers during the 2023-24 school year (id.). The IHO also determined that the March 2023 IEP was not relevant to the 2024-25 school year as it was "scheduled to expire" on March 21, 2024 (id.). Further, the IHO determined that the parent requested services for the 2024-25 school year but provided late notice on September 28, 2024 (id.).
Regarding the parent's argument that the district waived its defense by developing the November 2024 IESP, the IHO found that the district did not knowingly waive its June 1st defense since it did not provide any services to the student during the 2024-25 school year (IHO Decision at pp. 6-7). The IHO noted that this matter was similar to the matter in Application of a Student with a Disability, Appeal No. 24-384, where the SRO found that the district may be required to develop an IESP for a nonpublic school student rather than awaiting a parent's written request to furnish services, and therefore the occurrence of a CSE meeting and the development of an IESP does not clearly or unmistakenly reflect the district's waiver of the June 1 notice where it is called upon to convene and engage in special education planning for the student (id. at p. 7). Accordingly, the IHO dismissed the parent's claims with prejudice (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in denying the parent's request for an order directing the district to fund the 12-month program recommended in the student's October 2018 IEP and to fund a compensatory bank of hours for services the student did not receive during the 2024-25 school year, based on an alleged failure to submit a June 1st notice requesting equitable services for the 2024-25 school year. The parent argues that the IHO erred in finding that the district did not waive the June 1st notice requirement through its actions of sending a prior written notice acknowledging the parent's request of equitable services in conjunction with creating an IESP in November 2024 for the student. The parent also argues that the IHO failed to address the merits of her claims therefore a remand is necessary. As relief, the parent requests a reversal of the IHO's finding that the parent's claims are barred by the June 1st notice requirement; a finding that the district waived the June 1st notice for the 2024-25 school year, or in the alternative, the district conceded the parent's fulfillment of the June 1 notice and that the student was eligible for equitable services for the 2024-25 school year; and to remand the matter to the IHO for a determination on the merits of the parent's claims.
In an answer, the district denies every allegation set forth in the parent's request for review. In a cross-appeal, the district argues that the student was not entitled to pendency pursuant to the October 2018 CPSE IEP and the IHO erred by awarding such program under pendency. The district argues pendency cannot lie in a CPSE IEP for a post-preschool student. The district further argues that even if the CPSE IEP constituted the student's pendency placement, the parent rejected the provision of pendency services from the district when she unilaterally obtained services from a private agency instead of allowing the district to implement the pendency services. The district argues it was within its authority to determine how to provide the most-recently-agreed-upon educational program under pendency.
Additionally, the district argues that the IHO correctly determined it properly raised a June 1st affirmative defense and established the student was not entitled to receive equitable services during the 2024-25 school year. The district argues it met its burden of proof that the parent did not timely request equitable services by June 1, 2024 and that there was no clear unmistakable waiver through its course of conduct. Next, the district argues that the prior written notice is a standard form with standard language that is largely unchanged from one student to the next, and that the fact that the prior written notice stated that an IESP was developed recommending services the student would receive is not evidence of a clear and unmistakable waiver. The district argues that it did not provide services to the student during the 2024-25 school year, which proves it was not waiving the parent's June 1st requirement. The district further states that if the SRO finds the district waived the June 1st defense by sending a prior written notice, the matter should be remanded to the IHO for a determination on the parent's claims with the condition that any relief awarded be limited from the date of the prior written notice and for services actually provided by the private agency. The district also argues that any request for compensatory education should be denied. As relief, the district requests a dismissal of the parent's request for review with prejudice and to sustain the district's cross-appeal.
V. Applicable Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).
However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[10] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [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.).[11] Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).
VI. Discussion
A. Pendency
Turning first to the district's cross-appeal, 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]).[12] 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).
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Central School District Board of Education, 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197).
Here, the district does not indicate what the student's pendency program should be based upon but rather argues that pendency cannot lie in the October 2018 CPSE IEP as the student is now school-aged. The hearing record shows that the IHO issued an interim order on pendency on March 7, 2025, prior to the parties convening for the prehearing conference on April 4, 2025 (see Interim IHO Decision; Tr. pp. 1-9). According to the interim IHO decision, the district was given the opportunity to respond and did not respond (Interim IHO Decision). The district did not file a due process response in this matter. Accordingly, the student's pendency program lies in the student's October 2018 CPSE IEP as the last agreed upon educational program for the student.
The district also contends that the IHO erred by awarding pendency because the parent rejected pendency services from the district when she unilaterally obtained services from Headway and LGP Services. 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 seek public funding for the student's unilaterally obtained services from LGP Services and Headway 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 in this decision and did not agree to the change of the status quo, and the unilateral services selected by the parent had not been found appropriate in any administrative proceeding. When the parent placed the student at the nonpublic school and unilaterally obtained additional SEIT and speech-language services from new providers, the parent did so at her own financial risk, and can only obtain funding for the costs of the student's related services if the services offered by the board of education are found to be inadequate or inappropriate, the placement and services selected by the parent are found to be appropriate, and equitable considerations are found to support the parents' claim (Ventura de Paulino, 959 F.3d at 526; see Carter, 510 U.S. 7; Burlington, 471 U.S. at 369-70).
Ultimately, however, the IHO did not order the district to fund the student's unilaterally obtained services from the new providers for the period of time after the February 2025 due process complaint notice as pendency. Rather, the IHO made a declaratory finding identifying the October 2018 CPSE IEP as the basis for pendency (Interim IHO Decision). The IHO did not err in this regard. Rather, the parent opted not to have the district provide pendency and instead obtained private providers to deliver services to the student for which she sought funding in the underlying proceeding. However, to the extent there is any ambiguity, the IHO's decision should not be read to require the district to fund private services obtained for the student by the parent for the 2024-25 school year pursuant to pendency.
As described above, the parent made unilateral arrangements to obtain private services from Headway and LGP Services for the student, and thus it was the parent, not the district that altered the status quo for purposes of stay-put. Accordingly, I find that there was no need for the IHO to issue a ruling on pendency, and I will vacate the order, even if it merely identified what pendency would have been had there been no unilateral action by the parent.
B. June 1 Deadline
Turning to the June 1 affirmative defense, the State's dual enrollment statute requires parents of a New York State resident student with a disability who is parentally placed in a nonpublic school and for whom the parents seek to obtain educational services to file a request for such services in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). With respect to a parent's awareness of the requirement, the Commissioner of Education has previously determined that a parent's lack of awareness of the June 1 statutory deadline does not invalidate the parent's obligation to submit a request for dual enrollment by the June 1 deadline (Appeal of Austin, 44 Ed. Dep't Rep. 352, Decision No. 15,195, available at https://www.counsel.nysed.gov/ Decisions/volume44/d15195; Appeal of Beauman, 43 Ed Dep't Rep 212, Decision No. 14,974 available at https://www.counsel.nysed.gov/Decisions/volume43/d14974). Specifically, the Commissioner stated that Education Law § "3602-c(2) does not require [the district] to post a notice of the deadline" and that a parent being "unaware of the deadline does not provide a legal basis" for the waiver of the statutory deadline for dual enrollment applications (Appeal of Austin, 44 Ed. Dep't Rep. 352).
The issue of the June 1 deadline fits with other affirmative defenses, such as the defense of the statute of limitations, which are required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]). "By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).
There is no dispute from either party that the district timely raised its June 1st affirmative defense during the impartial hearing. Additionally, the parent does not rebut that she failed to timely request equitable services, but argues that the IHO erred by not addressing whether the district's prior written notice constitutes a waiver of the June 1st notice requirement.
The district argues that the prior written notice is a standard form with language that is largely unchanged from one student to the next. According to the district, the fact that the prior written notice states that an IESP was developed recommending the services the student will receive is not evidence of a clear and unmistakable waiver, and that because the district did not provide services to the student during the 2024-25 school year, such inaction proves it was not waiving the parent's June 1st notice requirement.
A district may, through its actions, waive a procedural defense (Application of the Bd. of Educ., Appeal No. 18-088). The Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" and that "a clear and unmistakable waiver may be found . . . in the parties' course of conduct" (N.L.R.B. v. N.Y. Tele. Co., 930 F.2d 1009, 1011 [2d Cir. 1991]).
While actual delivery of services called for by an IESP reflects "clear and unmistakable waiver," it is less clear that the occurrence of a CSE meeting and development of an IESP, without more, constitutes a waiver. This is due, in part, because the district is required to navigate requirements in tension with one another. On the one hand, State guidance requires that "[t]he CSE of the district of location must develop an IESP for students with disabilities who are NYS residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school" ("Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3206-c" Provision of Special Education Services, VESID Mem. [Sept. 2007] [emphasis added], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students), which appears to require a CSE to develop an IESP for a student placed in a nonpublic school whether or not the parent requests dual enrollment services. In addition, if a student has been found eligible for special education services under IDEA, a CSE must conduct an annual review to engage in educational planning for a student (see 20 U.S.C. § 1414[d][4][A][i]; 34 CFR 300.324[b][1][i]; see also Educ. Law §§ 3602-c[2][a], 4402[1][b][2]; 8 NYCRR 200.4[f]). Under some circumstances, a district may be required to develop an IESP for the student rather than await a parent's written request for it to "furnish services" (Education Law § 3602-c[2][a]). Therefore, the occurrence of a CSE meeting and the development of an educational planning document such as an IESP alone does not clearly or unmistakably reflect the district's waiver of the June 1 deadline where it is called upon to convene and engage in special education planning for the student.
However, while the convening of the November 2024 CSE to develop an IESP for the student may not, on its own, have constituted a waiver of the June 1 deadline, the language contained in the district's November 14, 2024 prior written notice lends further support to a finding that the district convened the CSE in response to the parent's request for dual enrollment services and, further, that it intended to arrange for delivery of the services recommended in the IESP to the student (see Dist. Ex. 2 at pp. 1-2). Specifically, the November 2024 prior written notice documents that the parent "indicated that [she] w[as] placing [the student] in a non-public school, at [her] own expense, and [was] seeking equitable services from the [district]," adding that the CSE "ha[d] developed an IESP because [the parent] ha[d] indicated that [she] w[ould] be placing [the student] in a private school at [her] expense and [was] requesting equitable services" (id. at p. 2). The prior written notice also stated that "[t]he recommended services w[ould] be put into effect on [November 26, 2024]" (id.). In other words, the language identifies that the CSE convened and developed an IESP because of the parent's communication to the district of her request for equitable services, and not for an independent reason related to the district's obligation to develop an IESP or IEP for the student. Further, the communication from the district to the parent in the November 2024 prior written notice that the "recommended services will be put into effect" is without any stated qualification that such receipt would occur only if the district had received a timely written request for services (id. at p. 2).
The district argues that the parent was required to respond to a timely June 1 affirmative defense "with evidence that [she] made a timely service request" irrespective of the language set forth in the November 14, 2024 prior written notice. However, the district's actions in convening the November 2024 CSE and sending the prior written notice described above reflect either a concession that the district received a written notice of the parent's request for the services or a waiver of the requirement for written notice.[13] In prior cases, this office has held that a prior written notice containing the same or similar language to that reflected in the November 2024 prior written notice in this matter constituted the district's waiver of the June 1 notice (see, e.g., Application of a Student with a Disability, Appeal No. 25-106; Application of a Student with a Disability, Appeal No. 24-473). Accordingly, the district waived the June 1 defense and should have implemented the services in the November 2024 IESP, which was the governing IESP during the later portion of the 2024-25 school year.
C. Remand to IHO
When an IHO has not addressed claims set forth in a due process complaint notice, an SRO may consider whether the case should be remanded to the IHO for a determination of the claims that the IHO did not address (8 NYCRR 279.10[c]; see Educ. Law § 4404[2]; F.B. v. New York City Dep't of Educ., 923 F. Supp. 2d 570, 589 [S.D.N.Y. 2013] [indicating that the SRO may remand matters to the IHO to address claims set forth in the due process complaint notice that were unaddressed by the IHO], citing J.F. v. New York City Dep't of Educ., 2012 WL 5984915, at *9 n.4 [S.D.N.Y. Nov. 27, 2012]; see also D.N. v. New York City Dep't of Educ., 2013 WL 245780, at *3 [S.D.N.Y. Jan. 22, 2013]).
It is undisputed that the district failed to present any witnesses at the impartial hearing and did not dispute its failure to implement the November 2024 IESP (Tr. pp. 21-23). Upon remand, the IHO should conduct a Burlington/Carter analysis to determine, under the totality of the circumstances, whether the unilaterally obtained services delivered by LGP Services and Headway to the student without the consent of school district officials for the limited period of November 14, 2024 through the end of the 2024-25 school year were appropriate to address the student's unique special education needs. If the IHO finds in the affirmative, the IHO should determine whether equitable considerations weigh in favor of an award of district funding for the unilaterally obtained services. Additionally, I leave it to the IHO's sound discretion to determine on remand whether any additional evidence is required to complete the record.
VII. Conclusion
For the reasons stated above, this matter is remanded to the IHO to use the Burlington/Carter standard to determine if the unilaterally obtained services delivered by LGP Services and Headway were appropriate to address the student's needs under the totality of the circumstances and if the IHO finds them appropriate, then the IHO must determine whether equitable considerations favor the parent for the limited period of November 14, 2024 to the end of the 2024-25 school year. Additionally, the parent made arrangements to unilaterally obtain private services without the consent of school officials and is not entitled to the costs of those services under a pendency theory, and I will vacate the IHO's pendency determination as unnecessary.
I have considered the parties' remaining contentions and find that I need not address them in light of my determinations herein
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the IHO decision dated April 24, 2025 is modified by reversing that portion which found that the district did not waive the June 1 defense between November 14, 2024 and the conclusion of the 2024-25 school year; and
IT IS FURTHER ORDERED that the matter is remanded to the IHO for further proceedings in accordance with this decision; and
IT IS FURTHER ORDERED that in the event that the IHO cannot hear this matter upon remand, another IHO shall be appointed; and
IT IS FURTHER ORDERED that the IHO's decision dated March 7, 2025 is modified by vacating that portion determining pendency services for the student.
Dated: May 29, 2026
Carol H. Hauge
STATE REVIEW OFFICER
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] Counseling and speech-language therapy were recommended to be provided in Yiddish and OT was recommended to be provided in English (Dist. Ex. 1 at p. 12).
[3] LGP Services has not been approved by the Commissioner of Education as an agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] District Exhibit 9 is a cropped document and difficult to read (see Dist. Ex. 9).
[5] SETSS, counseling and speech-language therapy were recommended to be provided in Yiddish and OT was recommended to be provided in English (Dist. Ex. 1 at p. 12).
[6] Headway has not been approved by the Commissioner of Education as an agency with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[7] The date the parent signed the contract with Headway is unclear as it is difficult to decipher whether the handwritten date on the contract refers to the month of October or December (see Parent Ex. E at p. 1). According to the parent's exhibit list included with the hearing record, the parent signed the contract on October 4, 2024. However, the Headway services representative electronically signed the contact on December 5, 2024 and services commenced that day (Parent Exs. E at pp. 1-2; K ¶¶ 4, 12).
[8] SETSS are not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, the term is not used anywhere other than within this school district and a static and reliable definition of "SETSS" does not exist within the district. SEIT services are defined in State law and in State regulation as "an approved program provided by a certified special education teacher, at a site , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; or a child care location" (Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "[SEIS] for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at https://www.nysed.gov/special-education/special-education-itinerant-services-preschool-children-disabilities). A list of New York State approved special education programs, including SEIS programs, can be accessed at https://www.nysed.gov/special-education/approved-preschool-special-education-programs. SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities" (8 NYCRR 200.16[i][3][ii]; see Educ. Law § 4410[1][k]). The November 2024 CSE did not recommend that the student receive SEIT services or PT (Dist. Ex. 1 at p. 12).
[9] The parties appeared for a prehearing conference on April 4, 2025 (Tr. pp. 1-9). During the prehearing conference, the district raised a June 1st affirmative defense (Tr. p. 4). The IHO also clarified that the parent was seeking services from an October 4, 2018 CPSE IEP and was disputing the program recommended in the November 12, 2024 IESP (Tr. p. 4). The parties agreed those were the claims to be resolved during the impartial hearing (id.).
[10] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]" (Educ. Law § 3602-c[1][a], [d]).
[11] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 of the Laws of 2007–Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c," Attachment 1 (Questions and Answers), VESID Mem. [Sept. 2007], available at https://www.nysed.gov/special-education/guidance-parentally-placed-nonpublic-elementary-and-secondary-school-students). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.). The guidance has recently been reorganized on the State's web site and the paginated pdf versions of the documents previously available do not currently appear there, having been updated with web based versions.
[12] 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).
[13] I am also not persuaded by the district's argument that there is no waiver because the prior written notice is a standard form with language that is largely unchanged from one student to the next. The prior written notice contains a statement that the district would implement the IESP on November 26, 2024, which, even if considered boilerplate language, showed the district intended to act by a certain date (Dist. Ex. 2 at p. 2).