July 17, 2025 – A recent court ruling has implications for families of children with disabilities in New York City, just as the new school year approaches. Here’s what parents need to know about the Enhanced Rate Equitable Services (ERES) process, and whether appeals are expected.
The Decision: A New Change in Special Education Due Process
On July 11, 2025, New York Supreme Court Justice Amy E. Joyce issued a ruling in Agudath Israel of America v. New York State Board of Regents, rejecting a challenge to a 2024 emergency regulation that had barred families from using due process hearings to challenge provider service rates under IESPs (Individualized Education Services Programs).
While the emergency regulation had already expired in October 2024, the court’s ruling validated the NYC Department of Education’s shift away from the impartial hearing process and toward a newly created administrative route: the ERES Unit.
How We Got Here: Background on the Court Case
The Emergency Regulation Timeline
In May 2024, the New York State Education Department and Board of Regents proposed an amendment to section 200.5 of the Regulations of the Commissioner of Education, which governs due process in special education cases. The proposed regulation specifically barred parents from using impartial hearings to challenge provider rates under IESPs.
In July 2024, the Regents adopted the regulation on an emergency basis without the normal public comment period. According to the Board of Regents’ agenda document, the regulation was needed to create “predictability” and reduce the “unfair burden” on families of having to litigate rate disputes.
The revised rule added this language to section 200.5:
“A due process complaint shall not include disputes 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.”
The regulation took effect July 16, 2024, and was set to expire October 13, 2024, unless formally adopted through regular rule making. (The expiration date of October 13, 2024 is listed on p. 9 of the July 31, 2024 New York State Register providing notice of the rule.)
Who Does This Affect? Understanding IESPs, Dual Enrollment, and Parentally Placed Students
This new limitation on due process rights applies specifically to students who have an IESP, or an Individualized Education Services Program, rather than an IEP.
Here’s the difference:
- An IEP (Individualized Education Program) is developed for students who require a full time special education program.
- An IESP, by contrast, is created for students who do not need a full time program, but just some aspects of a special education program, like related services. Students who are enrolled by their parents in private, nonpublic schools (including religious or independent schools) but who still require special education services funded by the DOE will have IESPs.
This system is based on New York’s “dual enrollment” law (Education Law § 3602-c), which requires districts to provide equitable special education services to parentally placed private school students, even though they don’t attend public school.
Real-Life Example: Speech Services at a Private Religious School
Imagine a student attends a Catholic school in Queens. The family pays tuition out of pocket. The student has a speech delay, and the school does not offer speech therapy.
The parent requests help from the DOE. The DOE develops an IESP that recommends speech-language therapy twice a week for 30 minutes, with speech-language goals. The DOE is legally obligated to provide those services.
But the DOE fails to assign a speech provider. So the parent hires a private speech therapist themselves. This therapist may charge $150/hour, but the DOE claims their “rate” is $90/hour, a number they set themselves.
Until recently, the parent could file a due process complaint to seek reimbursement for the full cost, even at this higher “enhanced rate.”
Under the new regulation upheld by the court, that kind of due process claim is no longer allowed. Instead, the parent must use the DOE’s ERES Unit, which may reject the higher rate, and only then will parents have the right to challenge that decision before a hearing officer.
Who This Does Not Affect
These changes do not apply to students who have IEPs and are:
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Placed in DOE public schools;
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Unilaterally placed by parents in nonpublic special education schools and seeking tuition reimbursement under FAPE violations; or
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Attending private schools but have an IEP, not an IESP (e.g., in rare circumstances when the DOE agrees to place them at a state-approved nonpublic school).
The restriction applies only to students with IESPs, that is, children who attend a nonpublic school of the parent’s choosing and receive some services from the DOE under the “dual enrollment” system.
Who Brought the Case and Why
In response to the emergency regulation, on October 1, 2024, a lawsuit was filed by Agudath Israel of America, an Orthodox Jewish advocacy group that supports parents navigating the special education system, and ten individual parents, each with a child enrolled in a private school and receiving services through an IESP.
They argued that the emergency rule (1) was adopted unfairly and without following required procedures, (2) stripped parents of critical legal protections and, (3) violated both New York’s administrative law and federal special education law.
The families asked the court to immediately block the regulation from being enforced (preliminary injunction) and permanently strike it down. You can read their petition here.
A Temporary Court Order: Why the Regulation Wasn’t Enforced Right Away
On October 4, 2024, Justice Kimberly O’Connor, a New York State Supreme Court judge in Albany issued a temporary restraining order that paused enforcement of the emergency regulation while the case was pending. The order stated:
“Pending the hearing and determination of Petitioners’ application for a preliminary injunction, … the Revised Regulation is hereby stayed and suspended … and Respondents … are temporarily enjoined and restrained from taking any steps to (a) implement the Revised Regulation, or (b) enforce it…”
You can read the justice’s temporary restraining order here.
The restraining order effectively meant that parents could continue to file due process complaints against the NYC for rate disputes regarding their service providers and IESPs. The case continued throughout the 2024-2025 school year, and a decision was just issued in the case on July 11, 2025.
What the Judge Said
In her July 11, 2025 decision, Judge Amy E. Joyce explained that:
- The emergency rule had already expired as of October 13, 2024, so it didn’t make sense to issue a preliminary injunction now;
- The families still had a remedy under the DOE’s new ERES Unit and could seek judicial review if their enhanced rate request was denied; and
- Therefore, there was no need for a permanent injunction.
You can read her decision here.
In short, the court did not rule on whether the rule was fair or appropriate, but only that the parents weren’t entitled to injunctive relief because a different process (ERES) now exists.
The judge also pointed out that this issue primarily affects New York City, where there are thousands of IESP students and where the hearing system had become, in the court’s words, “dysfunctional.”
What’s Changed for 2025-2026
The ERES System Is Now the Path Forward
Although the court found that the regulation expired on its own terms, the decision effectively confirms that parents must now use the DOE’s ERES process, not impartial hearings, to first resolve enhanced rate disputes. For the 2025-2026 school year, this means:
- No due process complaints for rate disputes unless and until the DOE ERES process is exhausted; and
- Parents must follow a strict administrative process to request enhanced reimbursement or direct funding.
In addition the court’s ruling, the New York State Education Department issued guidance in August 2024 stating that parents never had the right to file rate-dispute due process complaints, further showing that ERES is the system start with in these disputes. You can read the guidance here.
2025-2026 Deadlines and Requirements
The NYC DOE has updated its Equitable Services Assistance page for 2025-2026. Here are key dates and steps:
- June 1, 2025: Deadline to submit a Parent Notice of Intent (PNI);
- September 1, 2025: First day to submit ERES requests;
- 60 days: DOE’s timeline to respond once a complete request is submitted;
- Required documentation includes:
- Parent affidavit
- Provider affidavit + license/certification
- Agency affidavit (if applicable)
- Invoices for services rendered
All requests are submitted using the Equitable Services Request Form.
For assistance, email: EquitableServicesAssistance@schools.nyc.gov
Has Anyone Filed an Appeal?
As of this writing, no notice of appeal has been filed by Agudath Israel or the parent plaintiffs. Under New York’s Civil Practice Law and Rules (CPLR § 5513), they have 30 days from service of the decision to file a notice of appeal, so the deadline is August 11, 2025.
Until then, the decision stands, and families should proceed under the assumption that the ERES process is required to resolve enhanced rate disputes for the 2025-2026 school year.
DOE Expands the ERES Unit
The NYC DOE appears to be scaling up the ERES system for the current year. A job listing for “Agency Attorney – Enhanced Rate Equitable Services Unit” was posted on LinkedIn approximately 11 months ago, indicating ongoing recruitment efforts. (linkedin.com)
At a City Council oversight hearing on January 30, 2025, DOE officials reported receiving approximately 1,000 ERES requests by that date.
During the hearing, Liz Vladeck, General Counsel for NYC Public Schools, testified that “almost half” of the requests submitted were rejected as “facially deficient.” She explained that many families submitted requests without required documentation, including missing affidavits, licenses, and invoices. Vladeck emphasized that the DOE does not begin processing an ERES request until all required paperwork is submitted in full. These deficiencies have led to significant delays in processing and highlight the critical importance of ensuring complete submissions.
Vladeck also clarified that the ERES Unit was created not only to resolve rate disputes more efficiently but to protect against inconsistencies in documentation and potential fraud, given the volume and complexity of requests the DOE receives each year.
What Families Should Do Right Now
- Use the ERES process: Assume it’s required first for any enhanced rate request;
- Submit a timely PNI and prepare documentation for September;
- Keep detailed records: Save invoices, correspondence, and notices;
- Reach out to the DOE and your provider early to coordinate filings; and
- Consider legal counsel if your child is not receiving required services
If you’re a parent navigating this new system, it’s more important than ever to stay informed, act early, and seek help when needed.