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FINDINGS OF FACT AND DECISION
Case Number: 190515
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: December 6, 2019
February 5, 2020
Record Close Date: April 1, 2020
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 6, 2019
For the Student:
Advocate
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 5, 2020
For the Student:
Advocate
Parents
Provider
For the Department of Education:
District Representative
Introduction:
This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by ., the Parent (“Parent”) on behalf of ., the student (“Student’’), through her advocate, by filing a Due Process Complaint dated October 30, 2019 with the District. PA.
The Parent maintains that as a matter of law, her son in entitled to an appropriate special education according to both the IDEA and Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law. The Parent is alleging that her son, . was denied service under New York State Education Law Section 3602-c for the 2019-2020 school year and is seeking his mandated SETSS six periods per week, group service for the 2019-2020 school year at the enhanced rate of There were two days of hearing in this matter. Hearings were held on December 6, 2019 and November 21, 2019. Extensions were granted in this case making the final compliance date April 10, 2020.'[1] A list of Exhibits is attached as Exhibit A. The Parent submitted exhibits. PA—P-J.
Background
This case involves an student. During the 2019-20 school year, attended where the Student was by his Parent.
The last that was developed for this Student was for the 2018-2019 school year and was dated October 10, 2018 (P-D) and provided for the following:
and
2. Counseling Services, P-D.
The Parent filed a Due Process Complaint on October 30, 2019. P-A. I was appointed as an impartial hearing officer on November , 2019.
Position of the Parties
Parent’s Case
The Parent called two witnesses, the Parent and and placed ten documents in evidence. P-A—P-J.
The first witness was the Parent. Tr. 28. She first determined
The Parent, at first, requested a provider after hours so the Student wouldn’t miss school. Tr. 36. Upgrade Resources was not able to find another provider for the Student. Tr. 36. Accordingly, The next witness was He is He does not think . would be able to per period for the SETSS. Tr. 49. The coordinates and Tr. 50. The supervisor makes sure that keeps working on Ss District’s Case The District did not call any witnesses and did not place any documents in evidence.
Findings
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 (20 U.S.C. § 1412[a][1][A]; 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 CFR 300.137[a]). Although 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 CFR 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 (Educ. Law § 3602-c[2]).[2] “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” (Educ. Law § 3602-c[2]|[a]. In such circumstances, the district of location’s must review the request for services and “develop and [I[ESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [[EP]” (Educ. Law § 3602-c[2][b][1]). The 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.).[3] Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the pursuant to the impartial hearing and State-level (id.). review provisions of Education Law § 4404 (id.). See Application of the Board Of Educ., Appeal No. 18-088
In the instant matter, under State law, there is no evidence providing for an IESP for the 2019-20 school year. In fact, at the hearing, the District verified that the October 16, 2018 IESP (P-D) is the last IESP on record. Tr. 22. The District did not put on a case and agreed that the services on the October 10, 2018 IESP were appropriate. P-D. They were disputing the enhanced rate. Tr. 21. Accordingly, the Parent and the District agreed that the IESP dated October 10, 2018 (P-D), which is in evidence, was appropriate and provided for the following: SETSS, six times per week, one period each time, group service; and Counseling, two times per week, 30 minutes each time, group. P-D.
The District did not provide any witnesses and did not provide any evidence in this matter. The Parent is alleging that the District did not provide an IESP and did not find a provider for the Student at the standard rate for the 2019-20 school year. The Parent provided that indicated that she tried to locate a provider at the District rate and was unable to locate one. P-E. She also testified that she reached out to providers and they were unavailable. The Parent did, in fact find a SETSS provider through Upgrade Resources, however, the provider was only able to work for the Student from October 30 through December 5, 2019. The Parent then found the agency and obtained a provider from January 20, 2020 through the end of the school year. The Parent is asking that be paid at the rate of per hour. The District is disputing the enhanced rate.
It is clear that the District was unable to find a SETSS provider for this Student for the 2019-20 school year.
, the provider that is working with the Student is paid a session. He stated that the Tr.
50. The resources the supervisor provides belong to the school. Tr. 52. Although he is mandated to receive SETSS as a group service, testified that his is receiving it individually because that is the way set it up. Tr. 43. He does, however, believe
Based on the customary rate for SETSS providers, and estimating a reasonable increase for any other direct and indirect costs above that, I will be ordering payment at an enhanced rate of . In addition, he did not receive SETSS for the beginning of the school year through October 30, when the provider from until the provider from the agency began on January 20, 2020. P-I. In this regard, the Parent and District agreed that the Parent is entitled to a compensatory bank of hours for SETSS services for the period from September 5 to October 29, 2019 which amounts to 54 hours and for the period from December 5, 2019 and January 20, 2020 which amounts to 34 hours of SETSS services, which would be a total of hours at the rate of Based on the Parent’s actions, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.
Accordingly, under State law, the Student is afforded the same protections as a public school student on an equitable basis, therefore, I find the District failed to prepare and implement an IESP for the 2019-20 school year, and, accordingly is not in compliance under State law for said year.
ORDER
Based upon the foregoing, it is hereby
ORDERED, that the District shall do the following:
l. The District shall fund six periods of SETSS per week, as provided on the October 10, 2018 IESP, at the enhanced rate of hour, for the 2019-20 school year.*
With respect to Counseling, also provided on the October 10, 2018 IESP, an RSA shall be provided within five days of issuance of this Order, if it has not already been provided.
The District shall also provide funding for up to make-up SETSS services in accordance with the Student’s IESP dated October 10, 2018. This shall be provided by an appropriate provider at or a comparable agency chosen by the Parent, to be provided at the rate of up to hour for such services. The makeup services will be completed within one year of the date of this Order.
Dated: April 10, 2020
Impartial Hearing Officer
* During closure of schools due to COVID-19, this order may include funding for remote SETSS services.
Appendix A Evidence
District’s Exhibits
No. Date Document Pages
No Exhibits were provided by the District.
Parent’s Exhibits
No. Date Document Pages
A 10/30/19 Impartial Hearing Request 4
B 10/23/19 Retainer Agreement 2
C 9/16/19
D 10/10/18 9
E misc. dates l
F undated Provider’s Certificate 1
G undated Provider’s Certificate 1
I 1/29/20 Affidavit of Services 1
J undated Program Description 4
Impartial Hearing Officer’s Exhibits
No. Date Document Pages
No Exhibits were provided by the Impartial Hearing Officer.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the New York City Department of Education 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 either party plans to appeal the decision, a notice of intention to seek review shall be served upon the opposing party no later than 25 days from the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally serviced upon opposing party within 40 days from the date of decision sought to be reviewed. An appealing party Shall file the notice of intention to seek review, notice of 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.
The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, | weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, the requests for extension of the case compliance were granted.
Footnotes
[1] SETSS, per week for one period each time, group service;
[2] 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)] (Educ. Law § 3602-c[1][a],[d]).
[3] 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 comparted to other students with disabilities attending public or nonpublic schools located within the school district’ (“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 p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialized/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 is public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program”