New York City Department of Education, Impartial Hearing Decision

FINAL ORDER - DOE DEFAULT & INQUEST - “PENDENCY & MERITS

Case Number: 188410

NYS Identifier Number N/A Student’s Name: [“Confidential”]

Date of Birth:

(Corrected on the Record)

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 02/25/20

Actual Record Close Date: 06/08/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 02/25/20 Advocate PARENT 02/25/20

Father PARENT 02/25/20 Educational Supervisor PARENT 02/25/20 Agency Director PARENT 02/25/20

On October 10, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), Part 200 of the Regulations of the Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old pre-school student attending a private school and the New York City Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the pendency and impartial hearing was held on February 25, 2020. The Parent opted to submit a written closing statement which was received on April 7, 2019. (P-l) A list of the witnesses who appeared at the hearing and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parent through her advocate(s), the and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 8, 2019. The DPC is carried under New York City (“NYC”) Case No. 188410.

Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief:

A CSE meeting was held for [STUDENT NAME] on 04/10/2019 to develop a program for the 2019-2020 school year. At this meeting, the CSE members of the team recommended a Special Education program for [STUDENT NAME], consisting of the following services weekly:

Special Education Support Services, 10 periods Occupational Therapy, 2 x 30 minutes Speech-Language Therapy, 2 x 30 minutes Physical Therapy, 1 x 30 minutes

The parents were unable to procure a provider for the 2019-2020 school year at the regular DOE published rates and have not been contacted by the DOE with a provider with the qualifications and capacity necessary to provide the SETSS services for the 2019-2020 school year. In order to ensure the delivery and implementation of services, the parents enrolled [STUDENT NAME] with an agency to provide the SETSS services at an enhanced rate for the 2019-2020 school year. But for the parent's action in finding an agency to provide the mandated services, [STUDENT NAME] would not have had a program of services in place for the current school year. The NYC Department of Education has therefore denied [STUDENT NAME] equitable services under Section 3602-c and Article 89 of the New York Education Law.

The Parent’s DPC also requested an “Order on Pendency” for the following reasons: The Parent of [STUDENT NAME] hereby seeks an Order of Pendency, ordering the DOE to fund the student's "current educational placement” for the pendency of this litigation and any appeals that may follow. The last agreed upon program with the DOE is an Individual Education Service Program (IESP) dated 04/10/2019 mandating the following services weekly: Special Education Support Services, 10 periods

Occupational Therapy, 2 x 30 minutes

Speech-Language Therapy, 2 x 30 minutes

Physical Therapy, 1 x 30 minutes

A “pendency” hearing held during a resolution period does not commence the impartial hearing timeline. (See NYSED Memo - Questions Relating to Impartial Hearing

Procedure, Sept. 2016) As such, a hearing to discuss and determine the pendency placement of the student may occur during a resolution period but such a hearing held at that time does not commence the impartial hearing itself until the resolution period has expired. (Id.) However, an impartial hearing may commence with a “pendency hearing” if it is the first hearing to take place within 14 days of (a) or (b) of section 200.5(j)(3)(iii) of the regulations, i.e., after the resolution period has expired. (Id.)

The Parent has proffered that at the time that the IESP, was created, the student was living in Queens and attending school in Queens, designated for services 12 months out of the year and approximately in August, shortly, after the start of the 2019-2020 12-month school year, the Parent placed the student in a school in , located in Nassau County. (T-5) Section 3602(c) of the Education Law states that the county of location where the student is attending school is responsible for creating the the IESP, providing services to that child, and then billing the New York City Department of Education, for those services because that is where the child resides. (T-6-7) The Parent says that 3602 does not apply, because the student is a preschooler. (T-7) The Parent further asserts is that the DOE is charged with implementing the services that are agreed upon, the SETSS services in the IESP in Nassau County. (Id.)

The Parent further argues that the DOE had the responsibility to develop and implement an IEP program for the student, although they met their responsibility to develop an IEP program, the DOE knowingly ignored their responsibility to implement it.

(T-20) According to the Parent, the student's district of residence is responsible for implementing his IEP program. (T-20-1) The District of bears no burden under Education Law 3602(c) in this case, since the student is not registered in the school-aged program in their district. He is registered in a preschool program, and as such, the services are still the responsibility of his district of residence. (T-21) According to the Parent, the student is not required to enroll in compulsory education because he is not yet seven years old, he is still considered a preschool child. (T-22)

THE PARENT’S PENDENCY REQUEST

The Parent request an “Order on Pendency’” based upon the student’ IESP dated April 10, 2018. (T-

THE DOE’S ARGUMENT AGAINST PENDENCY

The DOE's position in regard to pendency should be denied as the student is not entitled to enhanced SETSS, because it failed to implement the IEP, because the Parent is relying on is the operative IEP, which is not being contested. (T-23)

LAW ON PENDENCY

Pendency is based on the student's “then-current educational placement,” which the Second Circuit has defined as “(1) ‘typically the placement described in the child's most recently implemented IEP,’ (Johnson v. Special Educ. Hearing Office, 287 F.3d 1176, 1180 [9th Cir. 2002]); (2) ‘the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked,’ (Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 [3d Cir. 1996]); and (3) ‘[the placement at the time of] the previously implemented IEP,’ (Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 [6th Cir. 1990)]); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004])

The then-current educational placement can be superseded by an agreement between the parties during the proceedings to change the student's placement or a final, unappealed decision on the merits by an impartial hearing officer, state review officer, or court. SRO Appeal No. 05-011; see also Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2002); Application of a Student with a Disability, Appeal No. 08-107; Letter to Hampden, 49 IDELR 197 (OSEP 2007); Student X v. New

York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008)

Final Order - Pendency & Case on the Merits

It seems like the Parent in this case wants it both ways, arguing that Section 3602 does not apply, which would require the DOE to pay, but does not cite any authority requiring the DOE to pay, other than in general the IDEA, and a denial of FAPE. (T-28)

What’s more, if the IEP here is agreed to between the parties, and somebody is not following it, and it may be the School District in this case, then the remedy is with the filing of a complaint in Albany with NYSED. (ld.)

Pursuant to Education Law § 3602-c, boards of education of all school districts of the State shall furnish services to students who are residents of this State and who attend non-public schools located in such school districts, upon the timely written request of the Parent or person in parental relation of any such student. For the purpose of obtaining education for students with disabilities such request shall be reviewed by the CSE of the school district_of location, which shall develop an IESP for the student based on the student's individual needs. (See Educ. Law §§ 3602-c[2][a], [2][b][1]) A school district of location recovers from the school district of residence the evaluation costs, CSE administrative costs, and special education services costs incurred. (See 8 NYCRR §

177.2, see also “Guidance on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally-Placed Nonresident Students Pursuant to Education Law Section 3602-c” located at http://www.p12.nysed.gov/specialed/publications/policy/reimbursement608.htm)

According to an interpretive guidance memorandum published by Office of Special Education and titled “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,” (Office of Special Education guidance memorandum) dated September 2007, with respect to child find requirements and the provision of special education programs and services to students parentally placed in private schools within the district of location, the Office of Special Education guidance memorandum notes, in pertinent part, the following: The district_of location is responsible for child find for students who are parentally placed in non-public schools located in their geographic boundaries. The CSE of the district of location must develop the IESP for students with disabilities wno are NYS residents and who are enrolled by their parents in nonpublic . . . schools located in the geographic boundaries of the public school. The IESP must be developed in the same manner and with the same contests as an IEP is developed. (See Office of Special Education guidance memorandum at pp. 4-5)

Available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf, United States Education Department guidance can be found in the Federal Register at:

Child Find for Parentally-Placed Private School Children with Disabilities (§ 300.131) 77

Fed. Reg. 46593 (August 14, 2006): “If_a determination is made by the LEA [local educational agency] where the private school is located that a child needs special education and related services, the LEA where the child resides is responsible for making

FAPE available to the child. If the parent makes clear his or her intention to keep the child enrolled in the private [school] located in another LEA, the LEA where the child resides need not make FAPE available to the child.” (See Maine School Administrative

District #40, 108 LRP 40513 [ME SEA, Oct. 23, 2007] [interpreting and applying the federal guidance and concluding that a district of location was not required to create an IEP for a student given the parent's intention to keep a student in a private boarding school - emphasis added)

While neither the IDEA nor State law preclude a parent from meeting with CSEs from both a district of location and a district of residence to develop an IESP or IEP for their consideration, the IDEA and State law also do not require both public school districts to simultaneously provide services under both schemes. Additionally, parents are generally not advised to seek evaluations from two separate districts to avoid repeated testing in close proximity of time. (See Office of Special Education guidance memorandum at p. 11). In this case, the parent accepted the public-school services recommended by the CSE in the district of residence, which are required to be provided by the district of location.

The DOE properly raised the issue of the extent of its obligation as the district of residence to provide the student with a FAPE for the 2019-2020 school year. As a defense, in relevant part, the DOE argues that it did not have an obligation to offer the student a FAPE during the 2019-2020 school year because the student was parentally placed in a private school in the district of location.

For students who reside in New York, State law requires a school district of location to develop an IESP that is “based on the student's individual needs in the same manner and with the same contents as an [IEP]” and to “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.” (See Educ. Law § 3602-c[b][1]) Parents are then provided the opportunity to challenge an IESP though the same due process procedures offered to students who are enrolled in a district of residence. (Id.)

The following question and answer in the Office of Special Education guidance memorandum addresses the question as pleaded by the district: Must the district of residence develop an IEP for a student who is parentally placed and conduct annual reviews of this IEP?

U[nited] S[tates] E[ducation] D[epartment] has provided guidance that states: “If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private . . . school located in another LEA, the LEA where the child resides need not make FAPE available to the child.” Therefore, if the parents make clear their intention to keep their child enrolled in the non-public . . . school, the district of residence need not develop or annually review an IEP for the student.

(See Office of Special Education guidance memorandum dated September 2007 titled “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 Education Law Section 3602-c”)

Here, the hearing record supports a finding that the Parent placed the student at a private school in Nassau County for the 2019-2020 school year. There is nothing in the record indicating that the Parent has an intent to place the student in a New York City public or private school in the future. It appears that the Parent first sought to parentally enroll the student under the State law dual enrollment statute to obtain public school services recommended by the CSE from one district - the district of residence - without challenging the IESP as inappropriate and, thereafter, the Parent sought to obtain services through the CSE of the district of residence, at the student's district of location.

The student's mother testified that she participated in the CSE meeting held in the district of residence and that an IESP was developed as a result of that meeting. That CSE meeting was convened in the district of residence. However, around August, before the start of the 2019-2020 school year, she placed the student at the district_of location.

Under the facts of this case and consistent with both the Office of Special Education guidance memorandum and federal guidance, the DOE- as the district of residence - was not required to implement the IEP, but is responsible to pay for the services once billed for those services by the district of location.

I also find that there no record does not support the Parent’s assertion that she made bona fide efforts to secure a DOE provider and none were available. The Parent submitted a “call log” indicating that all of her efforts were made on only one day. August 27,2019. (P-D) Additionally, there is nothing in the record about the Parent’s efforts to secure a SETSS provider via the district of location.

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact." (See 8 NYCRR 200.5[j][5][v])

SETSS are not defined in State or federal laws or regulations and are not identified on the State continuum of special education services. A reference to the service as "direct" is in Keeping with the language used in State regulations for consultant teacher services (See 8 NYCRR 200.6[d]) State regulations distinguish between "direct consultant teacher services,” which consist of "specially designed individualized or group instruction provided by a certified special education teacher . . .to_a_student with a disability,” from "indirect consultant teacher services," which consist of "consultation provided by a certified special education teacher . . .to regular education teachers” (8 NYCRR 200.1[m] [emphasis added]; see 8 NYCRR 200.6[d]).

There is no evidence in the hearing record to establish that the Parent has incurred any financial obligation to pay the difference between the enhanced rate and the DOE rate, or any rate set by the district of location. The record does not indicate that the Parent made a specific enforceable arrangement or otherwise enter into an enforceable contract or an actual enforceable agreement" with the provider to pay the providers if the impartial hearing process did not result in an award of the enhanced rate. Therefore, even if the Parent prevailed on the merits of her claim, it would be unclear at this juncture whether or not any relief would be warranted absent evidence that the providers were owed additional compensation based on an enforceable agreement with the Parent or the DOE.

In any event, it is unnecessary to speculate on this state of affairs since, for the reasons stated above, the evidence in the hearing record does not support a finding that the DOE failed to make available to the student special education programs and services on an equitable basis. (See Educ. Law § 3602-c[2]|[b][1])

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered and having been invoiced to the NYC-DOE by the district_of location, the NYC-DOE shall pay the cost of the student's receipt of SETSS and related services pursuant to, and in the amount specified in his IESP dated April 10, 2019, for the entirety of the student’s 2019-2020, at a rate not to exceed the established DOE rate for such services, unless those services were provide by the actual district of location, which if provided by the district of location shall be paid by the NYC-DOE at the district of location established rate; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the district_or location shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE of the district of location shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: June 19, 2020

New York, New York Edgar De Leon - I.H.O.

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 RECORD

01. Number/Letter Title Dated For #of Pages IEP 04/10/19 DOE 09/08/19 07 -~ITOmImowv>yY IHR PARENT O Withdrawn / Not Received N/A PARENT Call Log 08/27/19 PARENT 01 Affidavit 01/21/20 PARENT 01 Progress Report 11/19/19 PARENT 05 Classroom Report 02/09/20 PARENT 02 Withdrawn / Not Received N/A PARENT N/A Closing Statement 04/07/20 PARENT 50 N/A 12 pages DOE

N/A N/A N/A IHO N/A