New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: Student‘s Name: Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: February 7, 2011

March 11, 2011 Hearing Officer: , Esq. Hearing Officer‘s

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 7, 2011

Parents

Parents

DOE

CSE Region (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 11, 2011

DOE

Hearing Officer‘s — DOE

This is New York City case # On February 7, 2011 and March 11, 2011, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA 2004), 20 U.S.C. Section 1415(f)(3) and New York State Education Law Section 3602-c, regarding the special education of at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The New York City Department of Education was represented by , and the parents appeared pro se on the first day of the hearing. The parents did not appear on the second day of the hearing, nor did they make a motion to adjourn. Phone calls to their home and cell phone were unanswered. A list of witnesses who testified and the documents received into evidence is attached to this decision.

PARENTS‘ POSTION

The parents contend that the Department of Education has not provided proper ― education ( ) for , their parentally placed child. They are not satisfied with the service and they request an enhanced rate for the provision of so that they can use for her.

DEPARTMENT OF EDUCATION POSTION

The Department of Education contends that it has provided certified education who provide with the services as required by her IESP, and that the parents do not have the right to select a particular provider of services.

MOTION TO DISMISS

The Department of Education moved to dismiss this impartial hearing for improper forum and failure to state a claim upon which relief can be granted. (Tr. 11-12; Ex. 8) The Department of Education contends that children who are voluntarily enrolled by their parents in private schools have some substantive rights under the IDEA, notwithstanding the provisions of 34 C.F.R. § 300.454(a)(1):

§ 300.454 Services determined.

(a) No individual right to special education and related services. (1) No private school child with a disability has an individual right to receive some or all of the Hearing Officer‘s special education and related services that the child would receive if enrolled in a public school.

(2) Decisions about the services that will be provided to private school children with disabilities under §§300.452–300.462, must be made in accordance with paragraphs (b), and (c) of this section.

(b) Consultation with representatives of private school children with disabilities— (1) General. Each LEA shall consult, in a timely and meaningful way, with appropriate representatives of private school children with disabilities in light of the funding under §300.453, the number of private school children with disabilities, the needs of private school children with disabilities, and their location to decide—

(i) Which children will receive services under §300.452;

(ii) What services will be provided;

(iii) How and where the services will be provided; and

(iv) How the services provided will be evaluated.

(2) Genuine opportunity. Each LEA shall give appropriate representatives of private school children with disabilities a genuine opportunity to express their views regarding each matter that is subject to the consultation requirements in this section.

(3) Timing. The consultation required by paragraph (b)(1) of this section must occur before the LEA makes any decision that affects the opportunities of private school children with disabilities to participate in services under §§300.452–

300.462.

(4) Decisions. The LEA shall make the final decisions with respect to the services to be provided to eligible private school children.

(c) Services plan for each child served under §§300.450–300.462. If a child with a disability is enrolled in a or other school and will receive special education or related services from an LEA, the LEA shall—

(1) Initiate and conduct meetings to develop, review, and revise a services plan for the child, in accordance with §300.455(b); and

(2) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the LEA shall use other methods to ensure participation by the school, including individual or conference telephone calls. Hearing Officer‘s

The Department of Education further asserts that not only does have no federal individual right to receive services, but also she has no right to invoke the IDEA due process provisions, including the right to an impartial hearing. The Department of Education relies upon the provisions of 34 C.F.R. § 300.457:

a. Due process inapplicable

The procedures in Secs. 300.504-300.515 [including due process hearings]

do not apply to complaints that an LEA [board of education] has failed to meet the requirements of Secs. 300.452-300.462, including the provision of services indicated on the child‘s services plan.

b. Due process applicable

The procedures in Secs. 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of Sec. 300.451, including the requirements of Secs. 300.530-300.543.

c. State complaints

Complaints that an SEA or LEA has failed to meet the requirements of Secs. 300.451-300.462 may be filed under the procedures in Secs. 300.660-300.662

The Department of Education moved to dismiss the hearing request because the Commissioner of Education has exclusive jurisdiction to determine claims asserted under Education Law Section 32-6-c. The statute provides that parental requests for services for children with disabilities shall be reviewed by each school district‘s CSE pursuant to Section 4402 of the New York State Education. It also provides that:

Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter. Hearing Officer‘s

The Department of Education alleges that the parents‘ sole remedy is a state complaint under New York Education Law § 200.5(L).

The IDEA 2004 provides ―equitable services‖ for some children who are parentally placed in private schools. There is no individual federal entitlement to such services. New York State Education Law Section 3602-c far exceeds the federal mandate by providing special education and related services to all parentally placed children in New York private schools under certain circumstances and following established procedures.

New York Education Law Section 3602-c(2)(b)(1) requires that:

―For the purpose of obtaining education for students with disabilities, . . . such request shall be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program for the student based on the student's individual needs in the same manner and with the same contents as an individualized education program. The committee on special education shall 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. Review of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of section forty-four hundred four of this chapter.‖ (emphasis added)

The procedures for review of CSE decisions may be used for review of the CSE‘s decisions relating to parentally placed children in New York State.

I find that the Commissioner of Education does not have exclusive jurisdiction over all claims asserted pursuant to Sec. 3602-c and that the parents do have a right to review by an impartial hearing officer. See Application of a Child With a Disability, SRO Appeal No. 01-106.

The motion to dismiss is denied. Hearing Officer‘s

FINDINGS OF FACT

is an year old student who has a . (Tr. 93) Her parents parentally placed her at , which is a general eduation school located in . (Tr. 10-11, 30) One of at her school suggested that the parents pursue a mullti-sensory reading program for . (Tr. 105) There is no evidence that the school uses such a multisensory approach with as the parents did not know. (Tr. 106-7) Furthermore, the parents did not ask the providers whether they use a multi-sensory program. (Tr. 85-6)

The Department of Education Committee on Special Education (CSE) convened and it developed an Individualized Education Service Program (IESP) for on February 9, 2010. (Ex. 1) The parents did not raise the issue of methodology at the CSE meeting on February 9, 2010. (Tr. 87) The IESP provides ―special education teacher support services‖ ( ) five times per week in a group of up to eight, , and / . (Ex. 1 at 13) The frequency of / and are not specified on the IESP. The parents admit that the New York City Department of Education has funded the and services as provided on the IESP. (Tr. 101) The parents further admit that the Department of Education offered to fund the on the , but that the parents decided not to pursue for . (Tr. 101-2)

The parents have used a series of special education teachers and agencies that they selected to provide for . (Tr. 41) Last school year, the parents engaged a provider and they brought to her. When that arrangement could not continue, the parents contacted the Department of Education for advice. (Tr. 37-9) There were a series of email communications between the parents and the Department of Education discussing . (Ex. 5, 7) The parents were told to contact the agency providing services for another education or to use another , and began working with (Tr. 37-9)

The parents engaged , a education , to provide in their home. (Tr. 39) The parents admit that they have not established a definite schedule with her but they have remained flexible to the changing schedule. (Tr. 69) They have even had her Hearing Officer‘s come to the to work with on and the parents have given her . (Tr. 72-3) The parents complained that the her . (Id.)

The parents contend that the just does homework with rather than teach her skills. (Tr. 54, 65, 79, 88, 91) But the parents continue to give the homework to work on each session. (Tr. 102)

The parents want to use as the , but they require the parents to obtain an enhanced payment rate. (Tr. 129, Ex. 2) But the parents did not have evaluated by and the parents have never even been there. (Tr. 107-8, 120) The parents believe that uses ― ‖ rather than education and that they can provide multi-sensory services. (Tr. 67, 82, 92, 114-119, 129) The parents repeatedly referred to the as a ― .‖ (Tr. 57, 81, 110)

Unsatisfied with the , the parents drafted a due process complaint requesting an enhanced rate dated November 1, 2010 but received by the Department of Education on November 3, 2010. (Ex. 2)

CONCLUSIONS OF LAW

There is no claim of a denial of a ―free and appropriate public education‖ (FAPE) in this case. The sole issue before me is whether the Department of Education is providing appropriate for as required by the ISEP for the 2010 – 2011 school year. I find that the Department of Education has provided certified education as for for the 2010 – 2011 school year.

The parents want the Department of Education to give them an enhanced rate so that they can select their child‘s special education teacher from a wider range of . But they have no such right whether the child is in a public school or receiving equitable services under New York State Education Law §3602-c.

Furthermore, is not a substitute for a comprehensive appropriate education. It is a support service that is part of an appropriate education, but only a part of it that supports the rest of it. In this case, the parents placed their child in a school, and they did not raise the issue of FAPE. The parents then claimed that there is a lack of educational progress, but they did not provide any testimony or evidence to establish what Hearing Officer‘s program or services receives in her school. In addition, they have not availed themselves of the that the Department of Education offered for . They believe that educational progress is entirely based upon a few hours of per week rather than an entire program.

The parents are also confused as to the difference between a tutor, a special education teacher, a provider, and something they call a ‗learning specialist.‘ The parents have been influenced by the good advertising of a private afterschool educational business. The parents of have established a less than professional relationship with the they have selected, and then the parents complained about it.

SUMMARY AND ORDER

In the matter before me, the Department of Education has complied with all applicable federal and State statutes and regulations as it provides with ―proper‖ for the 2010 – 2011 school year.

There is no order necessary. Dated: March 18, 2011

____________________________

ESQ.

Impartial Hearing Officer Hearing Officer‘s

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Hearing Officer‘s

DOCUMENTATION ENTERED INTO THE RECORD

1 IESP, 2/9/10, 18 pp.

2 Impartial Hearing Request, 11/3/10, 1 p.

3 P-4 Form, 9/17/10, 1 p.

4 Due Process Response, 1/19/11, 4 pp.

5 Email Correspondence between and , Between

8/19/10 and 10/8/10, 4 pp.

6 Invoices from , between September 2010 and December 2010, 5

pp.

7 Emails Containing Attendance Records from , 2/4/11, 5 pp.

8 Motion to Dismiss, 2/7/11

Transcript Corrections

Page 10, line 10: Should read ― ‖ and not ― ‖