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FINDINGS OF FACT AND DECISION
Case Number: 172162
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: June 14, 2018
Actual Record Closed Date: February 4, 2019
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 14, 2018
For the Student:
Advocate
parent
For the Department of Education:
District Representative
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 advocate for the student and the parent in a due process complaint notice dated January 22, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2017/18 school year (Ex. P-A).[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 8§ 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)-(1).
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(4)(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 as “Ex.” 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 §§ 200.5G)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (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(4)(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(4j)(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 appeal that decision 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
The DOE appointed me to hear this matter on January 30, 2018 following the recusal of another hearing officer. See 8 NYCRR § 200.5(G)(3)G). A hearing on the merits of this matter was thereafter held on June 14, 2018.[2] 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).
Il. FACTUAL BACKGROUND
C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
At the time of the January 22, 2018 due process complaint, presents with moderate-to-severe speech delays. For the 2017/18 school year, the student attended the second grade at in The student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, SD-1 at 1). See 8 NYCRR§ 200.1(zz)(11).?[3]
At a meeting held June 13, 2017, the CSE convened to develop an individualized education services plan (“IESP”’) for the student. The CSE recommended that the student receive individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. SD-1 at 4).
At the June 2017 meeting, the parent objected to the CSE’s recommendation of related-services only for the student. The parent testified that the student presents with academic delays which require multisensory instruction from a certified special educator (R. 15; Ex. P-A). The parent seek an award of special education teacher support services (“SETSS”) for the student at a frequency of five (5) hours per week and at an enhanced rate (R. 6; Ex. P-A).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE failed to offer any testimonial evidence at the hearing that it developed an appropriate IESP for the student for the 2017/18, which called for the student to receive related-services only.
B. The Parent
The DOE denied the student a FAPE for the 2017/18 school year. The parent objects to the CSE’s June 2017 recommendation of related-services only for the student. The student presents with academic delays which require multisensory instruction from a certified special educator (R. 15; Ex. P-A). The parent seeks an award of SETSS hours for the student, at a frequency of five (5) hours per week, and at an enhanced rate (R. 6; Ex. P-A). >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).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs. See 20 U.S.C. § 1412[a][1][A]; NY Educ. Law §§ 4402(2)(a), (b)(2).. However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. § 300.137(a). Although school districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school. See 34 C.F.R. §§ 300.134, 300.137(a), (c), 300.138(b).
Under State law, however, a parent of a New York State resident student with a disability who is placed in a nonpublic school, and who seeks to obtain educational "services" for his or her child, may file a request for such services in the school 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).[4] "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." N.Y. Educ. Law § 3602-c(2)(a). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." See N.Y. Educ. Law § 3602-c(2)(b)(1). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools
(d). 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." Jd Additionally, unlike the provisions of the IDEA, Section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404. See id.
B. Dual Enrollment Services
A school district had the obligation to provide services to a student with a disability in conformity with her IESP. See N.Y. Educ. Law § 3602-c(2)(a), (b)(1); see also 20 U.S.C. §§ 1401(9)(D); 1414(d); 34 C.F.R. §§ 300.17(d); 300.320. While the statutory scheme of Education Law Section 3602-c places the responsibility of selecting and placing the student in a nonpublic school on the parent, the implementation of the services called for by a student's IESP falls on the school district insofar as "[bloards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." See N.Y. Educ. Law § 3602-c(2)(a). While it may very well be permissible for a school district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 17-034 at 7 (SRO Aug. 10, 2017).
In this case, at no point during the impartial hearing did the DOE offer any evidence to support the June 2017 CSE’s recommendation of related-services only for the State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district." See Chapter 378 of the Laws of 2007 — Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1 at 11 (VESID Mem. Sept. 2007), available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program." /d. student. The parent credibly testified that the DOE has never evaluated the student, who presents with academic delays which require multisensory instruction from a certified special educator (R. 14-15; Ex. P-A). The parent seeks an award of SETSS hours for the student, at a frequency of five (5) hours per week, and at an enhanced rate (R. 6; Ex. P-A). The DOE shall be directed to authorize the student’s receipt of one hundred eighty (180) hours of SETSS for the student, provided by a certified special education teacher at an enhanced rate.°
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
ITIS
HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2017/18 school year is SUSTAINED; and Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of one hundred eighty (180) hours of SETSS for the student, provided by a certified special education teacher at an enhanced rate.
Dated: February 18, 2019
JEFFREY SCHIRO, ESQ.
Impartial Hearing Officer
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. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 1/22/18, 4 pgs.
DEPARTMENT OF EDUCATION
1. Individualized Education Services Program (IESP), 6/13/17, 7 pgs.
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 4/9/18, 1 pg.
II. Confirmation of Extension, 5/7/18, 1 pg.
Il. Confirmation of Extension, 6/15/18, 1 pg.
IV. Confirmation of Extension, 7/5/18, 1 pg.
V. Confirmation of Extension, 8/8/18, | pg.
VI. Confirmation of Extension, 9/7/18, 1 pg.
VII. Confirmation of Extension, 10/7/18, 1 pg.
VII. Confirmation of Extension, 11/6/18, 1 pg.
IX. Confirmation of Extension, 12/5/18, 1 pg.
X. Confirmation of Extension, 1/4/19, 1 pg.
XI. Confirmation of Extension, 2/3/19, 1 pg.
Footnotes
[1] "References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] "Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 18-19; Exs. IHO-I - IHO-XI). See 34
[3] 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.
[4] “State law provides that “services” includes “education for students with disabilities,’ which means “special education programs designed to serve persons who meet the definition of children with disabilities set forth in Education Law § 4401(1).” See N.Y. Educ. Law §§ 3602-c(1)(a),
[5] State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district." See Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1 at 11 (VESID Mem. Sept. 2007), available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf. The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program." Id.
[6] The award of 180 hours of SETSS was calculated by multiplying five (5) hours of SETSS per week with thirty-six (36) instructional weeks.