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 2023-24 school year.  The district cross appeals from that portion of the IHO's decision which found that the district waived the requirement for written notice from the parent by June 1 and further asserts that the IHO lacked subject matter jurisdiction over the parent's claims.  The appeal must be dismissed.  The cross-appeal must be sustained to the extent indicated.

II. Overview—Administrative Procedures

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c).  The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA (20 U.S.C. §§ 1400-1482), namely a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]).  If disputes occur between parents and school districts, State law provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).  Incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]).  First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]).  An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]).  The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]).  A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]).  The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited here in detail.  Briefly, a CSE convened on May 9, 2023, determined the student was eligible for special education as a student with a learning disability, and formulated the student's IESP for the 2023-24 school year (see generally Parent Ex. B).[1]  The CSE recommended that the student receive seven periods per week of special education teacher support services (SETSS) in a group (id. at p. 6).

In a letter dated June 6, 2023, the district informed the parent that if she had placed the student in a nonpublic school at her expense and wanted the student to continue receiving special education services at that school, she must sign the form and return it to the district "no later than June 1, 2023" (Dist. Ex. 2).  The parent signed and returned the form on June 6, 2023, which also included the name of the nonpublic school the student would attend (id.).[2]

The student attended a nonpublic school and began receiving SETSS from Step Ahead on September 11, 2023, which continued through the 2023-24 school year until June 11, 2024 (see Parent Exs. A at p. 1; G).[3]  On April 9, 2024, the parent electronically signed a document on Step Ahead's letterhead indicating that she was "aware that the services being provided to [the student] [we]re consistent with those listed" in the student's May 2023 IESP and that she was aware SETSS were provided to the student at a rate of $200 per hour (Parent Ex. C at p. 1).

A. Due Process Complaint Notice

In a due process complaint notice dated May 23, 2024, the parent, through an attorney, alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see Parent Ex. A).  The parent asserted that the district failed to provide the special education services recommended in the student's May 2023 IESP (id. at p. 1).  The parent alleged that she located appropriate providers who charged enhanced rates for the special education services they delivered to the student for the 2023-24 school year (id.).  The parent sought an award of direct funding for the provider's services and requested a pendency hearing (id. at p. 2).

B. Impartial Hearing Officer Decision

An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on July 9, 2024 (Tr. pp. 1-68).  In a decision dated July 29, 2024, the IHO determined that the district waived the requirement for the parent to request equitable services by June 1 defense by providing the parent with a form for such purpose dated June 6, 2023 (IHO Decision at p. 4).  The IHO further held that the student was eligible to receive special education during the 2023-24 school year and the district failed to meet its burden to prove that if offered the student equitable services during the 2023-24 school year (id. at pp. 2, 4, 5).  Next, the IHO determined that the parent failed to meet her burden to show that Step Ahead provided the student with specially designed instruction that was sufficient to meet the student's unique needs (id. at pp. 2, 7).  Specifically, the IHO found that for a number of reasons the SETSS notes provided by the parent were "generally unreliable," and that the SETSS progress report failed to contain evidence of the student's progress (id. at pp. 6-7).  Although the IHO held that the parent was not entitled to her requested relief, the IHO made an alternate finding regarding equitable considerations, holding that if the IHO had found that the parent met her burden as to the appropriateness of the Step Ahead services, the parent's requested relief would have been reduced because of the lack of a ten-day notice, the SETSS provider lacked appropriate certification, and because the parent did not execute a contract with Step Ahead until April 2024 (id. at pp. 7-8).  The IHO dismissed the parent's due process complaint with prejudice (id. at p. 8).

IV. Appeal for State-Level Review

The parent appeals, alleging that the IHO erred in finding there was insufficient evidence in the hearing record to demonstrate that the services Step Ahead delivered to the student were appropriate.  Further, the parent asserts that the IHO's holding regarding equitable considerations was flawed, in that the ten-day notice requirement only applies to tuition reimbursement cases and that nothing in the contract shows inequitable conduct by the parent.  Additionally, the parent asserts that the IHO failed to issue a pendency order and that the student is entitled to services under pendency.  The parent requests reversal of the IHO's findings and an award of direct funding for the SETSS delivered to the student by Step Ahead during the 2023-24 school year at a rate of $200.00 per hour.

In an answer with cross-appeal, the district responds to the parent's allegations, generally argues to uphold the IHO's decision in its entirety, but as for its cross-appeal, argues in the alterative that the parent's requested relief should have been denied on other grounds.  In particular, the district alleges that the IHO lacked subject matter jurisdiction over the parent's implementation claim because of a recently passed emergency regulation.  The district further cross-appeals from the IHO's finding that it waived the June 1 notice requirement, asserting that the parent failed to request special education services by the June 1 deadline.  Additionally, the district argues that the IHO should have determined that equitable considerations did not favor the parent, as the parent did not demonstrate any legal obligation to pay for the costs of the student's unilaterally obtained SETSS.  The district requests that the parent's request for review be dismissed and all relief denied.

V. Applicable Standards

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]).  However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]).  Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the public school district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).[4]  "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c[2][a]).  In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (id.).[5]  Thus,  under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district, that is dually enrolled, for the purpose of receiving special education programming under Education Law § 3602-c, dual enrollment services for which a public school district may be held accountable through an impartial hearing.

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

VI. Discussion

As a threshold matter, I will address the district's cross-appeals alleging that the IHO lacked subject matter to address the parent's requested relief and that the IHO erred in determining that the district waived the requirement for the parent to request equitable services by June 1, 2023.

A. Subject Matter Jurisdiction

At the outset it is necessary to address the issue of subject matter jurisdiction raised by the district for the first time in this 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]).  Although the district did not raise the argument at the IHO hearing, it is permitted to raise subject matter jurisdiction at any time in proceedings, including on appeal (see U.S. v. Cotton, 535 U.S. 625, 630 [2002]).  Indeed, a lack of jurisdiction "can never be forfeited or waived" (Cotton, 535 U.S. at 630).

The district argues that that there is no federal right to file a due process claim regarding services recommended in an IESP and that "Education Law § 4404 does not confer IHOs with jurisdiction to consider enhanced rate claims from parents seeking implementation of equitable services" (Answer & Cr.-Appeal at ¶ 7).

In reviewing the district's arguments, the differences between federal and State law must be acknowledged.  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 alone and the parent did not argue that the district failed in the federal consultation process or in the development of a services plan pursuant to federal regulations.

Separate from the services plan envisioned under the IDEA, the Education Law in New York has afforded parents of resident students with disabilities with a State law option that requires a district of location to review a parental request for dual enrollment services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]).  For requests pursuant to § 3602-c, 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.).  Thus, the State law dual enrollment option confers an individual right to have the CSE design a plan to address the student's individual needs who attends a nonpublic school (see Educ. Law § 3602-c[2][b][1]; Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K, 14 N.Y.3d 289, 293 [2010]).  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]).

Education Law § 3602-c, concerning students who attend nonpublic schools, provides that "[r]eview of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][b][1]).  It further provides that "[d]ue process complaints relating to compliance of the school district of location with child find requirements, including evaluation requirements, may be brought by the parent or person in parental relation of the student pursuant to section forty-four hundred four of this chapter" (Educ. Law § 3602-c[2][c]).

However, the district asserts that neither Education Law § 3602-c nor Education Law § 4404 confers IHOs with jurisdiction to consider enhanced rates claims from parents seeking implementation of equitable services and that the State Education Department (SED) made a "carve-out" of jurisdiction for this issue explicit by adopting, by emergency rulemaking, an amendment of 8 NYCRR 200.5 (Answer & Cr.-Appeal at ¶ 10).

Initially, § 4404 of the Education Law concerning appeal procedures for students with disabilities, consistent with the IDEA, provides that a due process complaint may be presented with respect to "any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student" (Educ. Law §4410[1][a]; see 20 U.S.C. § 1415[b][6]).  State Review Officers have in the past, taking into account the legislative history of Education Law § 3602-c, concluded that the legislature did not intend to eliminate a parent's ability to challenge the district's implementation of equitable services under Education Law § 3602-c through the due process procedures set forth in Education Law § 4404 (see Application of a Student with a Disability, Appeal No. 23-121; Application of the Dep't of Educ., Appeal No. 23-069; Application of a Student with a Disability, Appeal No. 23-068).  When faced with the question of the status of students attending nonpublic schools and seeking special education services under § 3602-c, the New York Court of Appeals has already explained that

[w]e conclude that section 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; if they become part-time public school students, for the purpose of receiving the special services, the statute directs that they be integrated with other public school students, not isolated from them.  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.  Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise (see, Education Law § 4401–a), but that is not a matter of statutory compulsion under section 3602–c.

(Bd. of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 184 [1988] [emphasis added]).  Thus, according to the New York Court of Appeals, the student in this proceeding, at least for the 2023-24 school year, was considered a part-time public school student under State law.  It stands to reason then, that the part-time public school student is entitled to the same legal protections found in the due process procedures set forth in Education Law § 4404.

However, I am mindful that the number of due process cases involving the dual enrollment statute statewide, which were minuscule in number until only a handful of years ago, have now increased to tens of thousands of due process proceedings per year within certain regions of this school district in the last several years.  That increase in due process cases almost entirely concerns services under the dual enrollment statute, and public agencies are attempting to grapple with how to address this colossal change in circumstances, which is a matter of great significance in terms of State policy.  Policy makers have attempted to address the issue.  Recently in July 2024, the Board of Regents adopted, by emergency rulemaking, an amendment of 8 NYCRR 200.5, which provides that a parent may not file a due process complaint notice in a dispute "over whether a rate charged by a licensed provider is consistent with the program in a student's IESP or aligned with the current market rate for such services" (8 NYCRR 200.5[i][1]).  The amendment to the regulation does not apply to the present circumstance for two reasons.  First, the amendment to the regulation applies only to due process complaint notices filed on or after July 16, 2024 (id.).[6]  Second, since its adoption, the amendment has been enjoined and suspended in an Order to Show Cause signed October 4, 2024 by the Honorable Kimberly A. O'Connor, J.S.C., in the matter of Agudath Israel of America v. New York State Board of Regents, (No. 909589-24 [Sup. Ct., Albany County, Oct. 4, 2024).  Specifically, the Order provides that:

pending the hearing and determination of Petitioners' application for a preliminary injunction, the Revised Regulation is hereby stayed and suspended, and Respondents, their agents, servants, employees, officers, attorneys, and all other persons in active concert or participation with them, are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it as against any person or entity

(Order to Show Cause, O'Connor, J.S.C., Agudath Israel of America, No. 909589).

The district acknowledges the limitation on applicability of the amendments to the State regulation relating to the date of the due process complaint notice but contends that the emergency regulation "merely codif[ies] NYSED's preexisting position on implementation claims" (Answer & Cr.-Appeal ¶ 7 n.1).  Consistent with the district's position, State guidance issued in August 2024 noted 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]).[7]

However, acknowledging that the question has received new attention from State policymakers as well as at least one court at this juncture and appears to be an evolving situation, given the implementation date set forth in the text of the amendment to the regulation and the issuance of the temporary restraining order suspending application of the regulatory amendment, the amendments to the regulation may not be deemed to apply to the present matter regardless of the guidance document.

B. June 1 Deadline

Having decided that the IHO had jurisdiction to address the parent's claim in this matter, I now turn to the district's contention regarding the parent's request for dual enrollment services for the student.

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]).

Here, the evidence in the hearing record shows that the parent did not comply with the notice requirement until June 6, 2023, after the June 1 deadline.  While it appears that the district did not provide the parent the form on which the parent requested services until June 6, 2023, the date on the form is insufficient to demonstrate that the parent's late notice was justified either because the parent did not know about the June 1 requirement prior to receiving the form or on the ground that the district's provision of the form after the deadline constituted a waiver of the notice requirement.

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).  Thus, even if the parent did not know about the deadline until the June 6, 2023 notice was provided, this would not excuse the parent's failure to provide the statutory notice by June 1, 2023.

As noted above, the IHO found that the district's provision of the form on June 6, 2023 constituted a waiver of the requirement that the parent submit the request for dual enrollment services by June 1.  A district may, through its actions, waive the statutory requirement for the June 1 notice (see Application of the Bd. of Educ., Appeal No. 18-088).  The statute itself is not drafted in jurisdictional terms insofar as it creates a June 1 notice requirement but does not specify that a school district is precluded from providing services special education services to a student with a disability if a parent misses the June 1 deadline (Educ. Law § 3602-c[2][a]).[8]  However, the Second Circuit has held that a waiver will not be implied unless "it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them" 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]).

Although the form provided to the parent was dated June 6, 2023, this alone does not demonstrate an express or implied waiver as, on its face, the form stated the requirement that the parent "sign below and return th[e] form to the CSE office no later than June 1, 2023" (Dist. Ex. 2).  This shows that both parties were aware of their rights at this time but, without more, does not reflect a clear or unmistakable waiver.  The form itself did not, for example, "set out detailed procedures which [we]re plainly inconsistent with the statutory requirements" (One Ten Restoration, Inc. v. New York City Sch. Constr. Auth., 202 A.D.3d 981, 984 [2d Dep't 2022]).  Nor did the district engage in conduct that would support an implied waiver, such as providing dual enrollment services to the student despite the late notice (see Application of the Bd. of Educ., Appeal No. 18-088).

Based on the foregoing, the evidence in the hearing record shows that the parent's request for dual enrollment services for the 2023-24 school year was not timely submitted and does not support a finding that the district waived the June 1 deadline.

VII. Conclusion

Having found that the parent did not provide the district with written notice requesting equitable services prior to June 1, 2023 as required by Education Law § 3602-c(2), the student was not entitled to equitable services for the 2023-24 school year, and the parent's requested relief in the form of funding for unilaterally obtained services must be denied.  In light of this determination, I find it unnecessary to address the parties' remaining contentions relating to the appropriateness of services provided by Step Ahead or equitable considerations.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated July 29, 2024 is modified by reversing that portion which found that the district waived the statutory requirement for a written request from the parent for dual enrollment services by June 1 and, therefore, had an obligation to provide the student with equitable services for the 2023-24 schoolyear.