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FINDINGS OF FACT & DECISION
Case Number: 177577
Student Name:
Date of Birth:
District:
Hearing Requested By: Parents
Date of Hearing: August 30, 2019
Actual Record Close Date: January 21, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 30, 2019
For the Student:
ESQ. Attorney
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 attorneys for the student and the parents in a due process complaint notice dated September 7, 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 2018/19 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 Individuals with Disabilities Education Act (“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 § as “Ex.” 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)-(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(1)(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(Gj). 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(G)(3)(v), (vii), (xil).
The THO 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(G)(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 § 200.5G)(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] 8 NYCRR § 279.12(a).
Il. PROCEDURAL HISTORY
On September 4, 2018, the DOE appointed me to serve as the hearing officer in this matter. See 8 NYCRR § 200.5(4)(3)(i). In their complaint, the parents moved for an interim order on pendency. See 20 U.S.C. § 1415(); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4);
A hearing on the merits of this matter was thereafter held on August 30, 2019.2 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(G)(5)(v).
Hil. FACTUAL BACKGROUND
At the time of the September 7, 2019 due process complaint, the student was and presents with . For the 2018/19 school year, the student attended instruction at in . The student's eligibility for special education and related services as a student with a is not in dispute in this hearing (Exs. P-A at 1-2, P-B at 1). See 8 NYCRR § 200.1(zz)(11).[3]
At a meeting held June 13, 2017, the CSE convened to develop an IESP for the student for the 2017/18 school year. The CSE recommended that the student receive individual speech/language therapy, two (2) times per week for thirty (30) minutes per session. At the June 2017 meeting, the parents objected to the CSE’s recommendation of related-services only for the student (Ex. P-B at 3). In the prior proceeding concerning the 2017/18 school year (Case No.
172162), the parent testified that the student presents with (Ex. P-E at 5).
8 NYCRR
The parents allege that the CSE failed to convene to develop an IEP or IESP for the student for the 2018/19 school year. The parents assert that the absence of an IEP or IESP for the student denied him a FAPE on both procedural and substantive grounds (Ex. P-A). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE declined to offer any testimonial or documentary evidence at the hearing. The DOE objects, however, to the parents’ request for enhanced rate SETSS, noting that the last IESP created for the student recommended related services only (R. 7).
B. The Parent
The DOE denied the student a FAPE for the 2018/19 school year. The CSE failed to convene to develop either an IEP or an IESP for the student for the 2018/19 school year. The parent objects to the CSE’s June 2017 recommendation of related-services only for the student.
To make measurable . The parents seek an award of SETSS hours for the student, at a frequency of nine (9) hours per week, and at the provider’s market rate
(R. 7-8; Ex. P-A).4
§ 200.1(zz)(11).
‘The student received all requested speech/language therapy services via pendency. The parents’
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).[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." compensatory education claims were withdrawn at the hearing (R. 8; Ex. P-A).
(d). 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 § 3602c(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." d.° 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 "[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, there is no dispute here that the DOE failed to develop an IESP or offer the student a FAPE for the 2018/19 school year. The parents assert that to make measurable
In the absence of an IESP, the parents were forced to secure their own SETSS provider for the student at the provider’s market rate (R. 7).
The parents secured a duly licensed and certified special education teacher to provide the student with 360 hours (i.e., 40 weeks of service multiplied by 9 hours per week) of SETSS during the 2018/19 school year at the provider’s market rate of (Exs. P-C, P-D). The DOE will be directed to reimburse the parents, and/or directly pay the SETSS provider or the provider’s agency, , which is calculated by multiplying 360 hours of SETSS by the provider’s market rate of into account the student's placement in the nonpublic school program." Jd.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2018/19 school year is SUSTAINED; and Within thirty (30) days of the date of this Order, the DOE shall reimburse the parents, and/or directly pay the student’s private SETSS provider or the provider’s agency, for 360 hours of SETSS delivered to the student during the 2018/19 school year at the provider’s market rate of
Dated: January 30, 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
Due Process Complaint Notice/Impartial Hearing Request, 9/7/18, 4 pgs.
MO>D
Individualized Education Services Program (IESP), 6/13/17, 5 pgs.
Affidavit of , 12/7/18, 1 pg.
Certifications of , various dates, | pg.
Findings of Fact & Decision (Case No. ) , 2/18/19, 10 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Consolidation Order (Case Nos. ) THO , 2/15/19, 6 pgs.
II. Interim Order on Pendency (Case No. 177577) THO , 2/15/19, 8 pgs.
II. Confirmation of Extension, 11/24/18, 1 pg.
IV. Confirmation of Extension, 12/24/18, 1 pg.
V. Confirmation of Extension, 1/23/19, 1 pg.
VI. Confirmation of Extension, 2/18/19, 1 pg.
VIL. Confirmation of Extension, 3/24/19, 1 pg.
VII. Confirmation of Extension, 4/23/19, 1 pg.
IX. Confirmation of Extension, 5/23/19, 1 pg.
X. Confirmation of Extension, 6/22/19, 1 pg.
XI. Confirmation of Extension, 7/22/19, 1 pg.
XII. Confirmation of Extension, 8/21/19, 1 pg.
XIII. Confirmation of Extension, 9/20/19, 1 pg.
XIV. Confirmation of Extension, 10/20/19, 1 pg.
XV. Confirmation of Extension, 11/19/19, 1 pg.
XVI. Confirmation of Extension, 12/19/19, 1 pg.
XVI. Confirmation of Extension, 1/18/20, 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. 12-14; Exs. IHO-III - IHO-XVII). 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.
[5] 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),
[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 | 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
[8] NYCRR § 200.5(m). The DOE did not oppose the parents’ motion. In an Interim Order on Pendency dated February 15, 2019, I directed the DOE to provide the student with individual speech/language therapy, two (2) times per week for thirty (30) minutes per session, for the duration of these proceedings (Ex. IHO-II at 6).