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FINDINGS OF FACT & DECISION
Case Number: 172803
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: July 20, 2018
August 13, 2020
Actual Record Close Date: August 28, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2018
Advocate — Student
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 13, 2020
Advocate (via telephone) — Student
District Representative, (via telephone) — 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 originally requested by the advocates for the student and the parent in a due process complaint notice dated March 12, 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 who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (“IESP”) under the State's so-called "dual enrollment statute.” See N.Y. Educ. Law §3602-c. The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA, namely a local Committee on Special Education (“CSE”) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative. See N.Y. Educ. Law §§ 3602-c, 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 related to IESPs, State law provides that "[r]eview 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 [Education Law § 4404]," which effectuates the due process provisions called for by the IDEA. See N.Y. Educ. Law § 3602- c(2)(b)(1). Incorporated among the procedural protections of the IDEA and the analogous State law provisions governing dual enrollment programing is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See N.Y. Educ. Law § 4404(1); see also 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151-300.152, 300.506, 300.511; 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). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an impartial hearing officer (“IHO”). See N.Y. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j). An 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 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(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 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). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant. See 8 NYCRR § 279.4. The opposing party is entitled to respond to an appeal or cross-appeal in an answer. See 8 NYCRR § 279.5. The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record. See 34 C.F.R. § 300.514(b)(2); 8 NYCRR § 279.12(a).
II. PROCEDURAL HISTORY
On March 13, 2018, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On April 17, 2018, the parent moved for an interim order on pendency (Ex. P-A at 1). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law
§ 4404(4); 8 NYCRR § 200.5(m). The DOE did not oppose the parent’s motion. In an Interim Order dated July 12, 2018, the DOE was directed to authorize the student’s receipt of bilingual ( ) SEIT services and individual speech and language therapy, effective March 12, 2018, for the duration of these proceedings (Ex. IHO-I). Hearings on the merits of the matter were thereafter held on July 20, 2018 and August 13, 2020.[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).
III. FACTUAL BACKGROUND
At the time of the March 12, 2018 due process complaint, the student was years old and presented with decreased speech intelligibility and social language deficits. For the 2017/18 school year, the student attended in Brooklyn. 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, P-C at 1). See 34 C.F.R. § 300.8(c)(6); 8 NYCRR §
200.1(zz)(6).[3]
On June 26, 2015, the DOE’s Committee on Preschool Special Education (the “CPSE”)
convened to develop an IEP for the student. The CPSE recommended that the student receive bilingual ( ) special education itinerant teacher (“SEIT”) services, five (5) times per week, and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-B at 1).
On February 11, 2016, the CSE convened to develop an IESP for the student through February 2017. The CSE recommended that that the student’s general education instruction be supported by bilingual ( ) special education teacher support services (“SETSS”), three (3)
times per week, and individual (bilingual – ) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-C at 7).
The parent objected to the CSE’s decrease of SEIT/SETSS, from five (5) times per week to three (3) times per week (Ex. P-A, P-B at 1, P-C at 7) and was unable to secure recommended SETSS for the student at the DOE’s standard rate so she was forced to secure a provider at an enhanced rate (Exs. P-A, P-C at 7, P-D, P-F). The parent seeks reimbursement and/or direct payment for enhanced-rate SETSS she secured for the student, five (5) times per week, during the 2017/18 school year (Exs. P-A at 3, P-F). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE acknowledges that the student required SETSS services during the 2017/18 school year due to his academic delays, but objects to any award of enhanced-rate SETSS to the student (R. 17).
B. The Parent
The DOE denied the student a FAPE during the 2017/18 school year. The CSE’s recommended decrease of SEIT/SETSS, from five (5) times per week to three (3) times per week, was not based on any evaluation or provider’s recommendation. The parent made good faith attempts to secure an approved bilingual ( ) SETSS provider for the student for the 2017/18 school year at the DOE’s standard rate. When unable to secure an approved bilingual ( ) SETSS provider for the student at the DO E’s standard rate, the parent had to secure her
§ 200.1(zz)(11). own SETSS provider for the student at an enhanced rate. The DOE should be ordered to reimburse the parent, and/or directly pay, for enhanced-rate bilingual ( ) SETSS she secured for the student during the 2017/18 school year (R. 14-16; Exs. P-A, P-D, P-F).
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.[4] See 20 U.S.C.
§ 1412(a)(1)(A); N.Y. 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).
However, under State law, parents 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 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).[5] "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 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." Id.[6] 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. 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); R.E., 694 F.3d at
184-85.
B. Dual Enrollment Services – 2017/18 School Year
As an educationally classified student with a disability, the DOE had the obligation to provide services to the student in conformity with an IESP while he attended his nonpublic school. 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 "[b]oards 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, the DOE has not offered any evidence that it assigned the student a SETSS provider, either before the beginning of the 2017/18 school year or thereafter. The parent made good faith attempts to secure an approved bilingual ( ) SETSS provider for the student for the 2017/18 school year at the DOE’s standard rate (Ex. P-D). When unable to secure an into account the student's placement in the nonpublic school program." Id. approved bilingual ( ) SETSS provider for the student at the DOE’s standard rate, the parent was forced to secure her own SETSS provider for the student at an enhanced rate of $150 per hour (Exs. P-F, P-G). While the DOE objects to any award of enhanced-rate services, it cannot be absolved of its statutory obligation to implement SETSS for the student simply by asserting that the parent did not engage the services of the SETSS providers to whom it referred her. 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).
The DOE will be ordered to reimburse the parent, and/or directly pay the provider’s agency, for bilingual ( ) SETSS she secured for the student during the 2017/18 school year at an enhanced rate of $150/hour.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
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 reimburse the parent, and/or directly pay the provider’s agency, for bilingual ( ) SETSS the parent secured for the student during the 2017/18 school year at an enhanced rate of $150/hour.
Dated: September 11, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 3/12/18, 4 pgs.
B. Preschool Individualized Education Program (“IEP”), 6/26/15, 17 pgs.
C. Individualized Education Services Program (“IESP”), 2/11/16, 10 pgs.
D. Parent Outreach, 2017/18, 1 pg.
E. Provider’s Licenses, various dates, 1 pg.
F. Affidavit of Services Provided, 10/10/18, 1 pg.
G. Program Description – , undated, 4 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency (Case No. 172803) IHO Jeffrey J. Schiro, 7/12/18, 10 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[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. 6-8, 18-19). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[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. 8 NYCRR
[4] 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.
[5] State law provides that "services" includes "education for students with disabilities," which means "special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)]. N.Y. Educ. Law §§ 3602-c(1)(a), (d).
[6] 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