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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 16, 2012
Actual Record Close Date: August 17, 2012
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2012
Parents
Chairperson’s Designee — DOE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process 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. This hearing was requested by the parents, who appear in this matter pro se, in a due process complaint notice dated June 26, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to provide the student with speech services via a related service agreement (“RSA”) (Ex. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 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.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“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 (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(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. See 34 C.F.R. §§ 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. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed by the DOE to hear this matter on July 2, 2012. The DOE held a resolution session meeting with the parents on July 17, 2012, which was ultimately unsuccessful (R. 67; Ex. P-C). See 8 NYCRR § 200.5(j)(2). A pre-hearing conference with the parties was held on August 2, 2012 to clarify the issues and establish a date for the hearing (R. 3-11). See 8 NYCRR § 200.5(j)(3)(xi). Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
II. FACTUAL BACKGROUND
At the time of the August 16, 2012 hearing, the student was old and educationally classified as having a (Ex. SD-1 at 1).[2] For the 2012/13 school year, the student’s , he will be voluntarily enrolled by his parents in , a nonpublic school located in Staten Island (R. 44; Exs. IHO-I at 1, SD-1 at 2, 5, P-A at 1, P-B at 1). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (R. 24; Ex. P-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
During the 2011/12 school year, the student also attended . In a May 1, 2012 related service progress report, Ms. , the student’s pathologist, noted that the student had been receiving individual , two (2) times per week for thirty (30) minutes per session. While the student presented with age-expected language skills, his speech displayed numerous articulation errors. Individual therapy was recommended for the 2012/13 school year in order to meet IEP goals and achieve age-appropriate speech production skills (Exs. SD-1 at 1, P-B at 1-2).
At a meeting held on June 15, 2012, the parents informed the CSE of their intent to voluntarily place the student at for the 2012/13 school year (R. 44). The CSE noted that the student’s “academic performance was reported as at and above grade level” and that his “social skills were reported as age appropriate.” In light of the student’s articulation difficulties, however, the CSE recommended that the student receive group therapy, two (2) times per week for thirty (30) minutes per session in a separate location (Ex. SD-1 at 1).
In a letter to the DOE dated June 15, 2012, the student’s mother requested an RSA for for the student for the 2012/13 school year. The letter explained that both of the student’s parents work full-time and the student’s daytime caregiver, who also supervises several other minor children, does not drive (Ex. P-A). The parents did not receive a response from the DOE to their June 15, 2012 letter (R. 48-51).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE has fulfilled its legal obligations to the student by developing an individualized education services program (“IESP”) which called for the student to receive group therapy. The DOE has designated “ ” in Staten Island, a private entity, as the provider/site of the therapy recommended by the CSE for the student. It is the parents’ obligation to arrange for the student’s transportation to to receive the recommended service (R. 24-33).
B. The Parents
The DOE should be ordered to enter into an RSA for the provision of therapy to the student for the 2012/13 school year. The student’s daytime caregiver does not drive and transportation cannot be arranged for the student to receive the recommended services at (R. 34-35; Exs. IHO-I, P-A).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.3 See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). While the IDEA however, confers no individual entitlement to special education or related services to students who are parentally placed in nonpublic schools, see 20 U.S.C. § 1412(a)(10); Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 733-34 (2d Cir. 2007), it authorizes the delivery of special education services to be provided to parentally placed private school students located within a district “on the premises of private, including religious, schools, to the extent consistent with law,” see 20 U.S.C. § 1412(a)(10)(A)(i)(III).
In 2007, New York State amended Education Law Section 3602-c to comply with the reauthorization of 20 U.S.C. § 1412(a)(10) (“Children in Public Schools”) and its implementing regulations, 34 C.F.R. § 300.130 - 300.147. See N.Y. Educ. Law § 3602-c as amended by Ch. 378 of the Laws of 2007.[4] Education Law Section 3602-c - commonly referred to as the dual enrollment statute - requires parents
3
The term “free appropriate public education” means special education and related services that –
(A) have been provided at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency;
(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and
(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17. who seek to obtain educational services for students with disabilities placed in nonpublic schools to file a request for such services in the 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. See N.Y. Educ. Law § 3602-c(2). The district of location’s CSE must review the request for services and develop an IESP based upon the student’s individual needs and “in the same manner and with the same contents” as an IEP. See N.Y. Educ. Law § 3602-c(2)(b)(1). In addition, the district of location’s CSE “shall assure that special education program 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.” See id.
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. See N.Y. Educ. Law § 4404(1)(c).
B. Recommended Dual Enrollment Services
As the student both resides in, and is privately educated, within the territorial boundaries of the DOE, the DOE is both the district of residence and district of location for purposes of a dual enrollment analysis under Section 3602-c of the New York Education Law. Consistent with its obligations under that statute, the CSE correctly convened on June 15, 2012 to develop an IESP for the student (Ex. SD-1).
For the reasons set forth below, I find that the DOE failed to offer the student appropriate services on an equitable basis. During the 2011/12 school year, the student received individual therapy provided by Ms. pursuant to an RSA between the DOE and the parents (R. 41; Ex. P-B at 1). In her May 1, 2012 related service student progress report, Ms. recommended that the student continue to receive individual speech therapy for the 2012/13 school year (Ex. P-B at 2). The CSE, however, recommended that the student receive group therapy for the 2012/13 school year (Ex. SD-1 at 3). While the CSE does not have to adopt the recommendations of outside experts, see E.S. v. KatonahLewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 (S.D.N.Y. 2010); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004), the DOE offered no rationale at the hearing for its recommendation of group, rather than individual, therapy. In the absence of any rationale for its recommendation, I must credit the unrebutted opinion of Ms. , that the student required individual therapy in order to receive educational benefit and make meaningful progress (Exs. SD-1, P-B). See Rowley, 458 U.S. at 192, 203.
The DOE also improperly designated , a private entity, to provide the student with group services during the 2012/13 school year (R. 29, 35-36, 47). A board of education must provide related services as part of the continuum of special services and program available to students with disabilities to enable such students to benefit from instruction. See N.Y. Educ. Law § 4401(2)(k); 8 NYCRR § 200.1(qq). Related services include: . See 20 U.S.C. § 1401(26); N.Y. Educ. Law § 4401(2)(k).
A board of education may, in its discretion, select qualified school district employees or may engage the services of qualified non-employees to provide related services. See Application of a Child with a Handicapping Condition (Floral ParkBellrose Union Free Sch. Dist.), Appeal No. 90-4 (SRO Oct. 4, 1990). School districts are authorized to enter into contracts for special education services or programs, including related services, with other school districts, BOCES, State-operated and Statesupported schools, approved private residential and nonresidential schools both inside and outside New York State and the State University at Binghamton for non-residential special education at the Children’s Unit. See N.Y. Educ. Law §§ 3602-c(2), (3), 4401(2), 4402(2)(b); Application of a Student with a Disability (New York Dep’t of Educ.), Appeal No. 12-050 at 28 (SRO June 5, 2012).
Alternatively, school districts and BOCES do not have the authority to contract with independent contractors for instructional services which are the very core and function of a school district. See Board of Cooperative Educ. Servs. v University of the State of New York, 40 A.D.3d 1349 (3d Dep’t 2007); Bork v. City Sch. Dist. of North Tonawanda, 60 A.D.2d 13 (4th Dep’t 1977), appeal denied, 44 N.Y.2d 647. In acknowledgment of this precedent, the Commissioner has held that a school district does not have general authority to contract with a private independent contractor to provide school social worker services. See Appeal of Barker & Pitcher, 45 Ed. Dept. Rep. 430 (Decision No. 15,375) (Comm’r of Educ. March 8, 2006).
Notwithstanding the Commissioner’s holding in Appeal of Barker & Pitcher, the New York State Department of Education has opined that where a school district is unable to provide the related services on a student’s IEP in a timely manner through its employees because of shortages of qualified staff, the board of education has the authority to enter into contracts with duly qualified independent contractors to provide the services. See John B. King, Q & A Related to Contracts for Instruction, Q&A #5 (Office of P-12 Education, June 2, 2010). A school district in these circumstances, however, must document that it would retain supervisory control over the individual and that, despite reasonable efforts, it has been unable to provide such services by hiring new employees or utilizing existing employees, or through contractual arrangements authorized by Education Law Section 4401(2). See id.
Here, the CSE has recommended that the student receive services, a related service, see 20 U.S.C. § 1401(26); N.Y. Educ. Law § 4401(2)(k), typically provided by certified personnel who have tenure rights under the Education Law, see 8 NYCRR § 301.8(6) (Ex. SD-1 at 3). While it was stated at the hearing that the DOE designated Perfect Playground, a private entity, to provide the student with services (R. 29, 35-36, 47), no evidence was offered at the hearing to establish that the DOE would retain supervisory control over the individual providing the student with the service and that, despite its reasonable efforts, the DOE had been unable to provide such services by hiring new employees or utilizing existing employees, or through contractual arrangements authorized by Education Law Section 4401 (2) (R. 52-53). I, therefore, find that the DOE improperly designated Perfect Playground to provide the student with group during the 2012/2012 school year.
Lastly, I find that the DOE erred in failing to offer the student transportation from his nonpublic school to to receive recommended special/language therapy services. Section 3602-c of the Education Law does not mandate the location of where services are to be provided. See Board of Educ. of the Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289, 293 (2010); Board of Educ. of the Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y. 2d 174, 188 (1988); Application of the Kingston City Sch. Dist., Appeal No. 09-115 at 8 (SRO Dec. 21, 2009). If special education services are to be provided to a student at a site other than the nonpublic school, the district of location is responsible to provide transportation, including special transportation, as appropriate, necessary for the student to receive special education services. See N.Y. Educ. Law § 3602-c(4); James P. DeLorenzo, Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to IDEA 2004 and NYS Education Law Section 3602-c at 15 (Q & A #25) (VESID Sept. 2007).
As noted earlier, the student will attend Our Lady Queen of Peace, a nonpublic school, in the fall (R. 44). The DOE reportedly arranged for the student to receive recommended services at a site other than his nonpublic school, i.e., (R. 29, 35-36, 47). While as the district of location, it is DOE’s obligation to provide the student with transportation from his nonpublic school to to receive his therapy, no such arrangements have been made here based on the DOE’s erroneous position that the parents are required to provide such transportation (R. 32).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parents’ claim that the student has been denied appropriate special education services on an equitable basis is SUSTAINED; and
(2) the DOE shall appoint Ms. , via an RSA, to provide the student with individual therapy, two (2) times per week for thirty (30) minutes per session, at her current rate, for the 2012/13 (ten month) school year (September 6, 2012 through June 30, 2013). Dated: August 30, 2012
______________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
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.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 16, 2012
PARENT
A Letter to R. Perry from , 6/15/12,[1] p. B Related Service Student Progress Report, 5/1/12, 2 pp. C Notice of Scheduled Resolution Meeting, 6/10/12, 2 pp.
DEPARTMENT OF EDUCATION
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
[4] In September 2007, the Office of Vocational and Educational Services for Individuals with Disabilities (“VESID”) published a guidance memorandum - “Chapter 378 of the Laws of 2007 - Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the [IDEA] 2004 and New York State (NYS) Education Law Section 3602-c” - to “inform school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary schools by their parents.” Available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. VESID has since been reorganized and renamed, and is now referred to as the Office of Special Education.
[1] Individualized Education Services Program (IESP), 6/15/12, 6 pp. IMPARTIAL HEARING OFFICER I Impartial Hearing Request/Due Process Complaint Notice, 6/26/12, 2 pp.