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AMENDED FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: January 15, 2013
Record Close Date: January 15, 2013
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2013
Parents
Chairperson’s Designee, CSE — DOE
— DOE
I. JURISDICTION - OVERVIEW OF 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 parent, who appears in this matter pro se, in a due process complaint notice dated November 21, 2012. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) provided the student with appropriate services on an equitable basis (Ex. SD-1).[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 November 21, 2012. In a due process response dated November 30, 2012, the DOE denied each and every allegation contained in the due process complaint (Ex. SD-2). See 8 NYCRR §§ 200.5(i)(4), (5). A hearing was held on January 15, 2013. 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).
III. FACTUAL BACKGROUND
At the time of the January 15, 2013 hearing, the student was years old and educationally classified as having a (Ex. SD-8 at 1).[2] For the 2012/13 school year, the student’s third grade, she was voluntarily enrolled by her parent in , a small nonpublic school located (Exs. P-A, SD-9, SD-10, SD-12). The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, SD-2). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
During the 2011/12 school year, the student also attended . Prior to that, the student attended for two (2) years (2009/10 and 2010/11 school years). At , the student received instruction in an integrated co-teaching (a/k/a collaborative team teaching) class with related services of (Exs. SD-9 at 1, SD-11 at 3, SD-12 at 1, P-B at 1).
Given the student’s history of deficits and the results of a February 9, 2011 neuropsychological evaluation, Dr. of the type), a mixed language disorder and a reading disorder. On the Wechsler Intelligence Scale for Children - Fourth Edition, the student’s Verbal Comprehension score of fell within the borderline range. Her Perceptual Reading score of fell within the average range. Her Working Memory score of and Processing Speed score of both fell within the range of functioning (Exs. SD-8 at 1, SD-9 at 1, SD-10 at 2, SD-12 at 16).
On May 1, 2012, the parent advised the DOE in writing of her intent to voluntarily enroll the student at the for the 2012/13 school year and of her request that the student receive public special education services while (Ex. P-B at 4).
As part of a July 23, 2012 evaluation conducted by the DOE, the student was administered the Woodcock-Johnson Tests of Achievement - Third Edition. The student achieved the following scores on that assessment, reported as grade equivalents: letterword identification (2.2), reading fluency (1.8), passage comprehension (1.7), math calculation (1.3), applied problems (1.9) and spelling (1.7) (Exs. SD-8 at 1, SD-10 at 2).
On an August 17, 2012 evaluation, the student displayed difficulties with auditory, vestibular and kinesthetic processing perceptual processing which made it difficult for her to express herself and/or understand instructions without verbal repetition from the therapist. This, along with visual tracking difficulties and decreased developmentally appropriate hand manipulation increased the time the student required to accomplish school activities and due to her difficulties. Individual was recommended to help the student improve her organizational planning, speed and dexterity of the academic and fine motor skills and practice sensorimotor and sensory integration strategies (Ex. SD-11 at 6).
At a meeting held on September 10, 2012, the CSE developed an individualized education services plan (“IESP”) for the student for the 2012/13 school year and recommended that she receive special education teacher support services (“SETSS”) five
(5) times per week in a group of no more than (8:1); individual speech/language therapy, two (2) times per week for thirty (30) minutes per session; group speech/language therapy, one (1) time per week for thirty (30) minutes per session; and individual occupational therapy, two (2) times per week for thirty (30) minutes per session (Exs. SD6, SD-8 at 12, P-B at 6). On October 10, 2012, the parent provided the DOE with her written consent and agreement to the recommended IESP services (Ex. SD-6).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE has fulfilled its legal obligations to the student by having developed an IESP for the student on September 10, 2012 for the 2012/13 school year which called for the student to receive SETSS, individual and group therapy and individual occupational therapy. On September 25, 2012, the parent was given a P-4 authorization with a list of providers that could implement the recommended SETSS service. While the parent now claims that she was unable to secure a SETSS provider at the DOE’s standard rate, she never previously advised the DOE of that concern prior to the November 21, 2012 due process complaint (R. 28-29).
B. The Parent
The parent has been unable to find an available and qualified individual to provide the student with recommended SETSS at the DOE’s standard rate. The DOE has unreasonably delayed providing the parent with RSAs for recommended related services. The DOE should be ordered to fund private summer services, Kumon reading and math tutoring and Lindamood-Bell instruction (R. 30-33; Ex. P-A at 2).
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 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 belatedly convened on September 10, 2012 to develop an IESP for the student following the parent’s May 1, 2012 written request for dual enrollment services (Exs. SD-8, P-B at 7). The parent submitted her written agreement to the CSE’s recommended IESP services on or about October 5, 2012 (Ex. SD-6).
For the reasons set forth below, I find that the DOE failed to provide the student 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. Hearing Officer’s Amended Findings of Fact and Decision [8]
with appropriate services on an equitable basis. With respect to the recommended related services of individual and group speech/language therapy and individual occupational therapy, the undisputed evidence entered into the hearing record reflects that RSAs for the related services recommended by the CSE for the student on September 10, 2012 were not issued by the DOE until January 9, 2013 (Exs. SD-1, SD-2 at 2, SD-3 at 2, SD-4 at 2, SD-5 at 2, SD-6, SD-8 at 12, P-A at 7, P-B at 11). By waiting four (4) months to issue its RSAs, the DOE deviated from substantial or significant provisions of the student's IESP in a material way and thereby precluded the student from the opportunity to receive educational benefits. See Rowley, 458 U.S. at 206-07; A.P. v. Woodstock Bd. of Educ., 2010 WL 1049297 (2d Cir. March 23, 2010); Cerra, 427 F.3d at 192 (2d Cir. 2005).
With respect to recommended SETSS, I find that the DOE’s mere issuance of a P-
4 form, whether that occurred on September 25, 2012 or January 9, 2013, failed to provide the student with appropriate services on an equitable basis (Exs. SD-6, SD-7, SD enrollment educational services for the student.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to remedy a school district’s failure to implement a student’s IEP which resulted in a denial of FAPE. See Newington, 546 F.3d at 123 (stating that “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for a denial of a FAPE”).
Likewise, State Review Officers have awarded compensatory “additional services” to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See. e.g. Board of Educ. V. Munoz, 16 A.D.3d1142 (4th Dep’t
2005) (finding it proper for a State Review Officer to order a school district to provide “make-up services” to a student upon the school district’s failure to provide those educational services during home instruction): Application of a Student with a Disability, Appeal No. 09-044 at 17 (awardding “make-up” counseling services to remedy the deprivation of such services) (SRO June 25, 2009).
Given the DOE’s failure to timely issue RSAs for recommended related services which denied the student a FAPE, I find that the student is entitled to receive, as compensatory additional services: (1) individual services, two (2) times per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013;
(2) group (3:1 therapy, one (1) time per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013; and (3) individual therapy, two (2) times per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013.
Likewise, given the legal inadequacies of the P-4 authorization process for recommended SETSS as detailed above, I find that the parent is entitled to reimbursement of costs for the student’s Kumon tutoring in math and reading for the period October 5, 2012 through the date of this Order. The DOE shall also be ordered to fund, as an enhanced rate, the student’s instruction in an appropriate program, five (5) times per week for sixty (60) minutes per session, from the date of this Order through June 30, 2013.
D. Extended School Year (ESY)/Twelve Month/Summer Services The parent’s claim for reimbursement of $2,400 for the student’s enrollment in during the summer of 2012 must be denied (Exs. P-A at 4, P-B at 9-10). As a dual enrollment student, this student is ineligible for twelve month services because the definition of “services” in section 3602-c(1)(a) of the Education Law is limited to services provided in programs operated during the course of the regular school year and does not apply to services provided in summer months. See 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 13 (Q & A #18) (VESID Sept. 2007).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) the parent’s claim that the student has been denied appropriate special education services on an equitable basis is SUSTAINED;
(2) the student is entitled to receive, as compensatory additional services, the following related services at public expense:
(a) individual services, two (2) times per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013;
(b) group ( ) therapy, one (1) time per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013; and
(c) individual therapy, two (2) times per week for thirty (30) minutes per session, for the period October 5, 2012 through January 9, 2013;
(3) within in thirty (30) days after submission by the parent of satisfactory proof of-payment, the DOE shall reimburse the parent for costs of the student’s Kumon tutoring in math and reading for the period October 5, 2012 through the date of this Order; and
(4) the DOE shall fund, as an enhanced rate, the student’s instruction in an appropriate program, five (5) times per week for sixty (60) minutes per session, from the date of this Order through June 30, 2013. Amended Decision Dated: March 18, 2013 Original Decision Rendered: January 31, 2013
_____________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JS:dl
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 JANUARY 15, 2012
PARENT
A Running Record of Student’s Educational History, Various dates, 7 pp. B Educational History, Articles, Communication b/w parent and providers,
Various dates, 6 pp. C Program Description, Undated, 5 pp.
DEPARTMENT OF EDUCATION
1 Due Process Complaint Notice/Impartial Hearing Request, 11/21/12, 1 p. 2 Due Process Response, 11/30/12, 4 pp. 3 RSA-1 Form, Related Service Authorization, Occupational Therapy, 1/9/13, 2 pp. 4 RSA-1 Form, Related Service Authorization, Therapy (Group), 1/9/13, 2 pp. 5 RSA-1Form, Related Service Authorization, Therapy (Individual), 1/9/13, 2 pp. 6 Parentally Placed Final Notice of Recommendation, Annual Review and
Revaluation, 9/10/12, 1 p. 7 SETSS Form, Independent Provider Authorization, P-4 Form, 2012/2013, 1 p. 8 Individualized Education Services Program (IESP), 9/10/12, 16 pp. 9 Social History Update, 7/23/12, 2 pp. 10 -Educational Evaluation, 7/23/12, 3 pp. 11 Therapy Evaluation, 8/17/12, 11 pp. 12 and Educational Assessment, 2/9/11, 29 pp.
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).
[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.
[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
[8] at 12, P-A at 7, P-B at 11). 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 State-supported 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). School districts and BOCES, however, 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. Here, the P-4 authorization not only impermissibly contracts out core instructional services, i.e., SETSS, but it also impermissibly delegates to the parent the DOE’s duty to secure appropriate dual