STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-394
Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a student with a disability
Appearances: Liz Vladeck, General Counsel, attorneys for petitioner, by Jared B. Arader, Esq.
Law Office of Philippe Gerschel, attorneys for respondent, by Philippe Gerschel, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the district) appeals from a decision of an impartial hearing officer (IHO) which found that it failed to offer an appropriate educational program to respondent's (the parent's) daughter and ordered it to reimburse the parent for her daughter's private services delivered by Strivright for the 2023-24 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
On December 12, 2022, the CSE convened, found the student eligible for special education services as a student with a speech or language impairment, and developed an IESP with a projected implementation date of January 4, 2023 (Parent Ex. B).[1], [2] The December 2022 CSE recommended that the student receive two 30-minute sessions per week of group speech-language therapy to address her articulation difficulties (id. at pp. 3, 5). It was noted in the IESP that, at the time of the December 2022 CSE meeting, the student was parentally placed in a nonpublic school (id. at p. 8).
The student attended fifth grade at what the parent described as a "mainstream" nonpublic school during the 2023-24 school year (see Parent Exs. C at p. 1; E at p. 1; G ¶ 2). On October 17, 2023, the parent entered into an agreement with Strivright to provide the student with speech-language therapy services for the 2023-24 school year (Parent Ex. C).[3]
A. Due Process Complaint Notice
In a due process complaint notice dated July 13, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (Parent Ex. A). At the outset, the parent requested pendency pursuant to the student's December 2022 IESP (id. at p. 2). The parent stated that the district failed to implement the recommendations contained in the December 2022 IESP and she was unable to locate related service providers for the 2023-24 school year (id.). As relief, the parent requested a finding that the district's failure to implement its recommendations was a denial of a FAPE for the 2023-24 school year (id. at p. 3). Finally, the parent requested an award ordering the district to directly fund the services delivered by the parent's chosen providers at their contracted rate, and a bank of compensatory periods for those services not provided to the student during the 2023-24 school year (id.).
In a due process response dated August 8, 2024, the district generally denied the material allegations contained in the due process complaint notice and asserted affirmative defenses, including that the parent failed to timely request equitable services by June 1, 2023 as required by Education Law (Dist. Response to Due Process Compl. Not.). In a supplemental notice attached to the due process response, the district asserted that the December 2022 IESP was "reasonably calculated to enable the student to obtain meaningful educational benefits" (id. at pp. 3-5).
B. Impartial Hearing Officer Decision
After a prehearing conference on January 23, 2025, an impartial hearing convened and concluded before an IHO with the Office of Administrative Trials and Hearings (OATH) on March 27, 2025 (Tr. pp. 1-31).[4] In a decision dated May 14, 2025, the IHO found the district denied the student a FAPE for the 2023-24 school year and the parent's requested relief of an award of compensatory services was appropriate (IHO Decision at pp. 3, 5). Initially, the IHO addressed the district's motion to dismiss for lack of subject matter jurisdiction and found that she had jurisdiction over implementation claims for equitable services, and therefore, denied the district's motion to dismiss (id. at p. 4).[5] Next, the IHO addressed the district's June 1st affirmative defense and found that the district timely raised the affirmative defense; however, the IHO found that the special education student information system (SESIS) log submitted by the district was not sufficient to demonstrate that the district did not receive the parent's June 1st request for equitable services(id. at pp. 4-5).
Next, the IHO found that the student was entitled to special education services, specifically speech-language therapy, but the hearing record lacked evidence that the district implemented the student's services (IHO Decision at p. 5). The IHO then determined that compensatory education services are an appropriate remedy when there is a denial of a FAPE and found that the student was entitled to 36 weeks of special education services for the 2023-24 school year (id. at pp. 5-7). As relief, the IHO ordered the district to fund two 30-minute sessions per week of speech-language therapy from a provider selected by the parent at a rate not to exceed $250 per hour (id. at p. 7).
IV. Appeal for State-Level Review
The district appeals, alleging that the IHO erred in finding that the parent provided a timely request for equitable services for the 2023-24 school year. The district argues that it did not have the burden to demonstrate whether the parent timely submitted a request for equitable services prior to June 1, 2023, and here, the parent's lack of evidence of such a request warrants a reversal of the IHO decision and dismissal of the due process complaint notice. Next, the district argues that the IHO erred in addressing the parent's request for relief applying a compensatory analysis instead of by examining the appropriateness of the unilaterally obtained services. The district contends that the parent failed to meet her burden of proving that the unilaterally obtained services were appropriate. Further, as an equitable consideration, the district argues that the IHO should have reduced the parent's requested rate because it was excessive.
In an answer, the parent seeks to uphold the IHO's finding that the district failed to meet its burden with respect to the June 1st affirmative defense. In addition, the parent asserts that the unilaterally-obtained speech-language services were appropriate and that equitable considerations did not a warrant a reduction of the provider's hourly rate.
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
The threshold issue to be resolved in this matter is whether the parent requested equitable services for the 2023-24 school year, prior to June 1, 2023, thus entitling the student to equitable services under New York Education Law § 3602-c. For the reasons that follow, I find that the parent failed to comply with the notice requirements and, therefore, the student was not entitled to equitable services for the 2023-24 school year.
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; see also, Application of a Student with a Disability, Appeal No. 25-058; Application of a Student with a Disability, Appeal No. 24-212; Application of a Student with a Disability, Appeal No. 23-121). 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]).
Here, as stated by the IHO, the district timely raised the June 1st affirmative defense in its due process response, as well as during the prehearing conference, and in both its opening and closing statements (Tr. pp. 6, 24-25, 27; IHO Decision at p. 4; Dist. Response to Due Process Compl. Not. at p. 1; Dist. Opening Statement). The IHO inquired as to how the district "intend[ed] to demonstrate that defense" and the district representative stated that she would include the SESIS log in evidence to establish that the district did not receive the June 1st notice (Tr. p. 6). The district offered into evidence its SESIS events log for the student, which contained entries on November 28, 2022; December 12, 2022; December 23, 2022; June 7, 2024; June 11, 2024; and October 1, 2024 (Dist. Ex. 2). There are no entries in the SESIS log for the period of time between December 23, 2022 and June 7, 2024 (id.). The district did not present witness testimony with respect to the SESIS events log (see Tr. pp. 11-31).
The IHO found that the SESIS log "alone absent context and additional information [wa]s not enough to demonstrate that notice was not received" (IHO Decision at pp. 4-5). In her answer, the parent agrees with the IHO's finding and argues that the district failed to meet its burden with the SESIS events log without "witnesses, affidavits, or exhibits to demonstrate how June 1 notices are received from parents, whether a search was made for a specific notice from [p]arent here, or whether any notice had been received" (Answer at p. 3). Accordingly, the parent asserted that the district failed to meet its burden on the affirmative defense and the "[p]arent had no burden to refute an unsupported allegation" (id.).
Contrary to the parent's arguments that the district failed to support the affirmative defense with any sufficient evidence, I note that once the district has raised the defense, although the district would generally have the burden of proof on an affirmative defense, the district is not necessarily required to prove a negative (see Mejia v. Banks, 2024 WL 4350866, at *6 [SDNY Sept. 30, 2024] ["it is unclear how the school district could have proved such a negative"]). Thus, I am not persuaded by the parent's argument that the district failed to sufficiently support its June 1 affirmative defense.
It was incumbent upon the parent to rebut the district's defense and produce the notice with proof that it was sent to the district. The parent did not appear at the impartial hearing but did submit direct testimony by affidavit (see generally Parent Ex. G). Review of the parent's affidavit shows that it did not contain any statement indicating that she sent a request for equitable services to the district prior to June 1, 2023 (id.).[8] The district did not seek to cross-examine the parent and the attorney for the parent indicated, at the impartial hearing, that there was not "a physical letter to include in evidence" to demonstrate that the parent submitted a timely request for equitable services (see Tr. pp. 7, 20). Similarly, on appeal, the parent also does not affirmatively assert or argue that she did provide a timely request for equitable services. Thus, the hearing record contains the district's SESIS log showing that it did not receive any written communication from the parent during the relevant time period, and it does not contain any evidence, or even an allegation, indicating that the parent submitted a written request for equitable services prior to June 1, 2023 for the 2023-24 school year (see generally Tr. pp. 1-31; Parent Exs. A-G).
While a school district carries the burden of proof at the impartial hearing, here the parent was the individual in whose custody and control the purported request for equitable services would have rested. Since the hearing record is devoid of any evidence that the parent provided a request for dual enrollment services prior to the June 1 deadline, I find that the student was not entitled to dual enrollment services under Education Law § 3602-c for the 2023-24 school year.
VII. Conclusion
Having determined that the evidence in the hearing record demonstrates that the parent did not provide the district with the required written request for equitable services prior to June 1, 2023, the student is not entitled to equitable services for the 2023-24 school year, and the parent's requested relief for funding of speech-language therapy must be denied.
I have considered the remaining contentions and find it is unnecessary to address them in light of my determinations above.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision, dated May 14, 2025, is modified by reversing that portion that found the district did not establish that the parent had not provided a request for dual enrollment services for the 2023-24 school year; and
IT IS FURTHER ORDERED that the IHO's decision, dated May 14, 2025, is modified by reversing those portions that found the student was entitled to special education services and specifically speech-language therapy services for the 2023-24 school year; and
IT IS FURTHER ORDERED that the IHO's decision, dated May 14, 2025, is modified by reversing that portion which found that the district was required to fund two 30-minute sessions per week of speech-language therapy at a rate not to exceed $250 per hour for the 2023-24 school year.
Footnotes
[1] The hearing record contains duplicate copies of the December 2022 IESP (compare Dist. Ex. 1, with Parent Ex. B). For ease of reference, this decision will cite to the parent's exhibit.
[2] The student's eligibility for special education as a student with a speech-language impairment for the 2023-24 school year is not in dispute (see 34 CFR 300.8[c][11]; 8 NYCRR 200.1[zz][11]).
[3] Strivright has not been approved by the Commissioner of Education as a school, corporation, or agency with which school districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d]; 200.7).
[4] The first IHO assigned to the case issued an undated order setting forth the "expectations of the [p]arties to resolve the matter fairly and efficiently" (see Interim IHO Decision). Thereafter, the case was reassigned to two other IHOs.
[5] The district's written opening statement contained its motion to dismiss for lack of subject matter jurisdiction and the hearing record indicates that the parent responded to the motion in writing; however, the parent's written opposition was not included in the hearing record (see Tr. p. 7; Dist. Opening Statement).
[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 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.
[8] The parent testified in her affidavit that she "submitted a 10-day notice informing the [d]istrict of [her] intention to implement" the student's educational program, which consisted of speech-language therapy services, but this notice was not included in the hearing record (Parent Ex. G ¶5; see generally Parent Exs. A-F).