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FINDINGS OF FACT AND DECISION
Case Number: 166547
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 22, 2017
Actual Record Closed Date: August 31, 2017
Hearing Officer: Barbara J. Ebenstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2017
Pro se — Parents
District Representative — DOE
Placement Officer, (Via Telephone) — DOE
This is New York City On August 22, 2017, 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 Chairperson's Designee for the Committee on Special Education District , represented the New York City Department of Education (DOE), and the Parent appeared pro se. A list of witnesses who testified and the documents received into evidence is attached to this decision.
ISSUE
There is no allegation of a denial of a “free and appropriate public education” (FAPE) in this case. The sole issue before me is whether the DOE must provide “ ” ( ) to at an enhanced rate for the 2017 – 2018 school year.
PROCEDURE
Although the pro se Parent agreed to the hearing date, she offered a number of last minute reasons to postpone it. She sent an email just before the hearing started requesting an adjournment due to a personal emergency. (Ex. IHO 2) I did not receive it as I was in transit to the hearing. The Mother appeared at the hearing with all her documents ready to proceed, although she told me about her email request for an adjournment. I suggested that we hold the hearing as it was a very short hearing on a specific limited issue, and the DOE had a witness waiting to testify. The Mother agreed.
Later, the Mother stated that she was thinking about stopping the hearing to get an attorney. (Tr. 14-16) I explained that it was her legal right to do so, but she decided to continue the hearing. Later, she mentioned that she was without an attorney and stated that she had requested the adjournment to get an attorney when the email stated that it was due to a personal emergency. (Ex. IHO 2)
(Tr. 17-18)
The hearing continued until the DOE rested its case, and then Mother mentioned that she was without an attorney. (Tr. 47-8)
Then the Mother requested a “continuance” to bring in additional irrelevant witnesses.
(Tr. 45)
STATEMENT OF FACTS
is a student who has a diagnosis of .1 (Tr.
49) On an undated , scored:
. On an undated , score were:
(Ex. 3 at 1)
In 2016, Dr. , an expert in , opined that ’s
was “
“ 2 (Ex. E at 1)
Early Intervention (EI) initially provided services to , and then she attended a private with a “ ” ( )
provided by the DOE. (Tr. 49-50, 59) For , her Parent placed at the ( ). (Tr. 50) is a small progressive private school on the . (Tr. 50) refers to classes as “ ,” and there are approximately to students in each
. (Tr. 59) has attended since . She will start 1
(Ex. D at 2)
2 While the Mother testified that Dr. conducts regular testing of , those reports are not in evidence in this impartial hearing.
there in September 2017. (Ex. F at 2)
does not provide any special education services to , but it does . (Tr. 69-70) has been providing “ .” (Ex. 4 at 1) charges an enhanced rate to provide services. (Tr. 53)
The Mother testified that during the 2016 – 2017 school year, the DOE funded an provider who came to to work with in her for . (Tr. 50) Exhibit I is ’s
schedule, and it has circles around the school periods that the provider worked with in her . (Ex. I at 3; Tr. 60) functions on a “ ” rather than a , and academic periods are long. (Tr. 51-2) Exhibit I confirms that the provider was in with in classes for a total of . (Id.) For example, she was there from . for and then . for on with a . But on , the provider was there and then with an . (Ex. I at 3)
Upon being asked about the remaining hours of service per week, the Mother testified that the provider also worked with after school on for . (Tr.
67) This means that received a total of rather
than . The Mother further explained:
(Tr. 68)
I find that did not receive during the 2016 – 2017 school year as a matter of fact.
The Mother testified about the nature of the services received at during the 2016 – 2017 school year. The provider
. (Tr. 63)
(Tr. 63-4)
In addition:
(Tr. 66)
. (Tr. 64) The report confirms the Mother’s testimony that , the provider, provided support for during the 2016 – 2017
school year:
In ,“
.” (Ex. B at 4)
In ,“
.” (Ex. B at 4)
In ,“
. . . . “ (Ex. B at 6)
The CSE developed an “individualized education program” (IEP) for at a meeting on June 6, 2017, and an “individualized education services program” (IESP) for her on July 31, 2017. (Ex. 2, Ex. 3) The IESP includes
.3 The July 31, 2017 IESP provides “
.” The duration length of session is “ ” and the location where service will be provided is “ .” (Ex. 3 at 10) The projected start date on the July 31, 2017 IESP is September 5, 2017. (Ex.[3] at 10) The DOE issued a “related service authorization” (RSA) for without an enhanced hourly rate. (Ex. 5)
providers must be . The Parent imposed
a number of additional qualifications and requirements on the provider for for the 2017 – 2018 school year. The Mother wanted someone who . (Tr. 33-4, 79) She wants the provider to be
. 4 (Tr.
57, 53) During the school year, the Mother wants the provider to . (Tr. 51) The Mother contacted potential
providers, other than , to work with at . She informed them that she wanted someone:
“. . .
”
(Ex. G at 1)
None of the potential providers committed to working with on this unknown shifting schedule. (Tr. 10) For the 2017 – 2018 school year, the Mother wants to continue using the provider she has been using:
“
.” (Tr. 9)
, a DOE placement officer, testified that he worked with , who is the that had who were available to work with . (Tr. 29-30, 34) He identified is a program based on for children in grades .
. See .
In 2010, Dr. wrote: “
. (Ex. D at 15, Ex. E)
. See .
who is a , has , and was available to provide to during the summer and during the 2017 – 2018 school year. (Tr. 28-30, 58) Ms. was available to work with over the summer, through , between . and . and in the fall. (Tr. 31,
35) The Mother attended a resolution session during which Ms. confirmed her availability, and the Mother stated that she would get back to her. (Tr. 32) The Mother rejected this teacher because and the Mother wanted a provider who could work around that schedule. (Tr. 34)
I find that there was a who was available to provide to over the summer of 2017 and during the 2017 – 2018 school year as a matter of fact.
The Mother filed an impartial hearing complaint dated June 20, 2017. (Ex.1)
On July 3, 2017, I issued an interim order of pendency that ordered the DOE to continue the provision of at an enhanced rate based upon a previous resolution agreement that indicates “ ” instead of . (Ex. IHO 1 at 3)
CONCLUSIONS OF LAW
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 New York State parentally placed children in New York State private schools under certain circumstances and following established procedures. New York Education Law Section 3602-c (2)(b)(1)
requires parents to request services: “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.”
This means that parents have a right to review by an impartial hearing officer although
Section 3602-c is New York State law. See A pplication of a Child With a Disability, SRO Appeal No. 01-106.
The New York State Education Department issed two guidances that explain the implementation of Section 3602-c services on an “equitable basis.” Guidance on
Parentlally Placed nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA ) 2004 and New Y ork S tate Education L aw Section 3602-c, VESID Mem. Sept. 2007. These
Guidances establish:
The school district of location is responsible to provide special education services pursuant to the IESP developed for each eligible student. Services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
The manner (how, where and by whom) special education and related services will be provided to students is determined by the district of location based on the consultation process and in consideration of the individual needs of the student.
The final decision with respect to services provided to individual students is made by the CSE of the district of location. Services provided to parentally placed students may be provided on the site of the private school or at another location.”
(VESID Memo, Sept. 2017, at 5)
The term “another location” is not defined, but other locations generally include the student’s home, a public library, or a nearby public school.5
The New York Court of Appeals has opined that the purpose of section 3602-c is to offer students with disabilities who have been placed in nonpublic schools by their parents “access to all the special education programs provided for public school students” and that the program developed for a student pursuant to the dual enrollment statute must be “appropriate to meet the student’s individual needs.” Bd of Educ. V . W ieder, 72 N.Y.2d 174, 184-7 (1988).
“Although the dual enrollment statute does not mandate that the School District provide services at a nonpublic school for each student, that does not end the inquiry. Applying W ieder to this case, the pertinent question is what the educational needs of this student require.”
B oard of Educ. of B ay Shore Union Free Sch. Dist. v. Thomas K. & C., 2010 NY Int. 50, 2010 NY Slip Op 02640 (N.Y. Ct. App. 2010) While a nonpublic school student may not be denied needed services that a public school student would receive based solely upon his or her status as a nonpublic student, “The converse is also true - a school district of location is not required to provide greater services to a nonpublic student than a public school student would receive under the Rowley standard (i.e., services reasonably calculated to enable the child to receive some educational benefit (internal citation omitted) (VESID Guidance at 11-12) See also A pplication of a Child with a Disability , SRO Appeal No. 16-054 at FN 10.
SETSS is not defined in federal or New York State statutes or regulations, and SETSS are not identified on the New York State continuum of special education services.
See A pplication of a Student with a Disability , SRO Appeal 16-044, A pplication of a Student with a Disability , SRO Appeal 16-054 at FN 8. SETSS is a term unique to the New York City DOE. A State Review Officer analyzed the the term “direct SETSS” in
.
on an IESP, and likened the term to “direct consultant teacher services” in the New York State Commissioner of Education regulations. Direct consultant teacher services are “specially designed individual or group instruction provided by a certified special education teacher . . . to a student with a disability.” A pplication of a Student with a Disability , SRO Appeal No. 16-044 at 7. Direct SETSS involves direct instruction by a special education teacher.
In this case, is located within New York City so the DOE is the district of location. On July 31, 2017, the DOE CSE determined that ’s educational needs require . The July 31, 2017 CSE developed an IESP that provides with
. Rather than
, the DOE issued a “related service authorization” (RSA) for the Mother to arrange for . The DOE could not have expected the Mother to arrange for despite the description on the IESP. But the Mother wants an enhanced rate to use to despite the clear language of the July 31 2017 IESP that describes special education instruction as .
The Mother wants to keep at , which is a general educaton school that does not provide her with special education services. The Mother’s testimony suggests that needs there. But is not the job of a . Furthermore, a school district of location is not required to provide greater services to a parentally placed nonpublic school student than a public school student would receive as appropriate under the Rowley standard.[6] Public school children do not get . That is not a service commonly provided to students in public schools in New
York City.[7]
is the job of a rather than a
. The New York Commissioner of Education Regulation Section
200.1(hh) establishes that:
Supplementary school personnel means a teacher aide or a teaching assistant as described in section 80-5.6(a) through (d) of this Title.
A teaching assistant provides “direct instructional service to students” in a classroom taught by a certified or licensed teacher. New York State Commissioner of Education Regulation Section 80-5.6(c) describes the duties of teaching assistants that include working with small groups of children or individual children. 8 New York State
8
Teaching assistant.
(1) Description and duties.
(i) Description. A teaching assistant is appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional service to students.
(ii) Duties.
(a) Teaching assistants assist teachers by performing duties such as:
(1) working with individual pupils or groups of pupils on special instructional projects;
(2) providing the teacher with information about pupils that will assist the teacher in the development of appropriate learning experiences;
(3) assisting pupils in the use of available instructional resources, and assisting in the development of instructional materials;
(4) utilizing their own special skills and abilities by assisting in instructional programs in such areas as: foreign languages, arts, crafts, music and similar subjects; and
(5) assisting in related instructional work as required.
(b) Teaching assistants who hold the pre-professional teaching assistant certificate shall have the same scope of practice as other teaching assistants, in accordance with the duties prescribed in clause (a) of this subparagraph. Within that scope of practice, teaching assistants holding a pre-professional teaching assistant certificate may, at the discretion of the employing district, and while under the general supervision of a teacher, perform such duties as:
(1) working with small groups of children so the teacher can work with a large group or individual children;
(2) helping a teacher to construct a lesson plan;
(3) presenting segments of lesson plans, as directed by the teacher;
(4) communicating with parents of students at a school site or as otherwise directed by a teacher; and
Commissioner of Education Regulation Section 80-5.6(c)(ii)(b)(1). If the CSE determines that needs classroom support, the CSE may develop an IESP with a or other for her.
may be responsible to provide for .
As a private school, is a place of public accommodation that must comply with
Title III of the Americans with Disabilities Act (ADA). 28 C.F.R. 36.104. Private schools are required to make reasonable accommodations and provide auxiliary aids and services to ensure that students with disabilities are not excluded, denied services, segregated, or treated differently than other students. 42 USC Section
12182 (b)(2)(A)(iii). It may be that is responsible to provide a for as a reasonable accommodation during .
The Mother admits that she wants an enhanced rate to continue using . (Tr. 9) She rejected a who had and was available to work with . Considering that had , accommodating the schedule would involve providing with , or not fulfill the in the pendency order.
The final decision with respect to services provided to individual students under Section 3602-c is made by the CSE of the district of location. In this case, the Mother claims that she needs an enhanced rate for a provider in when the CSE decided on . While this may not appear to be a major difference, but it is not minor. It means that the provider would be facilitating rather than providing to the . Furthermore, this is not a service provided “ .” Public and private school
(5) helping a teacher to train other teaching assistants.
students in New York City do not have
.
An enhanced rate is not appropriate when parents reject an appropriate offered provider, impose additional teacher qualifications, create problematic time and location restrictions, and want the provider to provide a different service than on the IESP. I find that the Parent is not entitled to an enhanced rate for during the 2017 – 2018
school year.
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 offered a who was available to provide to during the summer of 2017 and the 2017 – 2018 school year in accordance with the July 31, 2017
IESP.
There is no order.
Dated: September 25, 2017
BARBARA J. EBENSTEIN, ESQ.
Impartial Hearing Officer BE:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html.
DOCUMENTATION ENTERED INTO THE RECORD
Department Of Education
1 Due process complaint, dated 6/20/17, two pages
2 IEP, dated 6/6/17, 17 pages
3 IESP, dated 7/31/17, 14 pages
4 report, dated 5/15/17, two pages
5 authorization form, dated 6/30/17, two pages
Parent
A IEP and IESP and other school documents, unidentified dates, 37 pages
B Report from the , 2017, nine pages
C Report from , dated 7/7/17, 14 pages
D Article on , unidentified date, 21 pages
E Email from , unidentified date, unspecified number of pages
F Email from parent, unidentified date, two pages
G Email from various providers, various dates, five pages
H Email, unidentified date, unspecified number of pages
I Class schedule at , unidentified date, unspecified number of pages
Hearing Officer
I Pendency Order, dated July 3, 2017, 3 pages
II Email, dated August 21 and 22, 2017, 4 pages
Footnotes
[3] There are no allegations concerning the related services of in this impartial hearing. (Tr. 56) 4 is a program that uses . See .
[6] The Rowley standard has been modified by Endrew F. v. Douglas County School District Re-1, 137 S. Ct. 988 (2017). In Endrew , the Supreme Court established the substantive standard as whether the IEP “is reasonably calculated to enable a child to make progress in light of the child’s circumstances.”
[7] While there are a few students who have , those students attend schools, such as , rather than schools, such as .