NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 537660 - NYC: 194425
FINDINGS OF FACT & DECISION
Case Number: 194425
Student Name: [REDACTED] (hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Dates of Hearings: January 24, 2023
March 20, 2023
Actual Record Close Date: March 21, 2023
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF THOSE WHO APPEARED ON JANUARY 24, 2023
For the Student:
[REDACTED], Advocate
For the District:
[REDACTED], District Representative
NAMES AND TITLES OF THOSE WHO APPEARED ON MARCH 20, 2023
For the Student:
[REDACTED], Advocate
For the District:
[REDACTED], 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 student and the parents in a due process complaint dated June 15, 2020. The primary issue to be determined at this hearing is whether the New York City Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2020/21 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).
II. PROCEDURAL HISTORY
On June 16, 2020, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). Hearings on the merits of the matter were thereafter held on January 24, 2023 and March 20, 2023.[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 June 15, 2020 due process complaint, the student was [REDACTED] years old and has been diagnosed with an Autism Spectrum Disorder (“ASD”), an Attention Deficit Hyperactivity Disorder (“ADHD”), a Generalized Anxiety Disorder, and a Specific Learning Disorder (“SLD”) in written expression and mathematics (Exs. P-A at 4, P-C at 11). For the 2020/21 school year, the student was homeschooled by her parents. In addition, the student received specialized instruction from the [REDACTED] (hereinafter referred to as the “Private Center”), which has not been approved by the Commissioner of Education as an independent school with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Ex. P-A, P-B at 1). See 8 NYCRR § 200.1(zz)(1). 3
On December 4, 2019, the CSE convened to develop an IESP for the student through December 2020. The CSE recommended that the student’s general education instruction be supplemented with special education teacher support services (“SETSS”) for five (5) periods per week.[4] The CSE also recommended that that the student receive related services of: group counseling, one time per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; individual occupational therapy, three (3) times per week for thirty (30) minutes per session; and parent counseling and training, one hour per week for five (5) weeks (Ex. P-B at 6).
3
Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
In their complaint, the parents assert that five (5) periods per week of group SETSS from a special education teacher who is not specifically trained in either math or reading remediation is insufficient to meet the student’s needs (Ex. P-A at 4). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
At the March 20, 2023 hearing, the DOE asserted, for the first time, that it had been trying to settle the matter since September 2022. The DOE stated that it had requested invoices for private educational services rendered during the 2020/21 school year, but the parents did not provide it with those invoices (R. 10-11). The DOE is in agreement to a final order for 348 hours (R. 13).
B. The Parents
The DOE contacted the student’s advocates about resolution of the matter and requested invoices for private educational services rendered during the 2020/21 school year. That request was communicated to the parents on several occasions, but due to health issues, the parents were unable to submit those invoices prior to March 2023 (R. 12).
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.[5] 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).[6] "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- (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. 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.[7] 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 - 2020/21 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 she attended her 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 parent's 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).
Indeed, the SRO has recently stated that the DOE’s current system for providing SETSS to dually enrolled students by using “independent” special educational teachers is a violation of State law. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 11 (SRO Sept. 23, 2020); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-115 at 6 (SRO Sept. 3, 2020); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-087 at 5-6 (SRO Aug. 20, 2020). [8]
Alternatively, even if the DOE’s process is not illegal, it is ineffective. As far as this case is concerned, the process only appeared to thrust the parents into a quagmire of trying to figure out how much the public services for their daughter should cost, which is manifestly unreasonable because it is the DOE's responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services. See N.Y. Educ. Law §§ 3602-c(2)(a), (7)(a)-(b).
The DOE failed to offer the student a FAPE.[9] Here, the student was dually enrolled in the DOE for the purposes of receive special education services for the 2020/21 school year (Ex. P-B). There is no evidence that the DOE provided the student with recommended SETSS by assigning her a SETSS provider, either before the beginning of the 2020/21 school year or thereafter. Instead, the DOE pushed that responsibility off onto the parents; to locate their own teacher and arrange for instructional services to the student.
While school districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 13 (SRO Sept. 23, 2020).
C. Appropriateness of the Private Center
Given my finding that the DOE failed to offer the student a FAPE for the 2020/21 school year, I turn to the appropriateness of the private program and services secured by the parents for the student during that school year. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his or her special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize a student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the recommendations of the private neuropsychologist and a report of the student’s progress, I find that the Private Center provided the student with specifically designed, individualized instruction to meet her unique educational needs during the 2020/21 school year (Exs. P-C at 11-14, P-D, P-G).
D. Relevant Equities
The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA also provides that reimbursement and/or direct payment may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68.
The relevant equities support an award of reimbursement and/or direct payment for the specialized instruction the student received from the Private Center during the 2020/21 school year. In a letter dated June 15, 2020, the parents provided the DOE with adequate prior written notice of their intent to make a unilateral placement of the student at public expense during the disputed school year (Exs. P-A). There is also no evidence indicating that the parents were uncooperative with the CSE (Ex. P-B), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the costs for the Private Center unreasonable given the severity of the student’s educational needs (Exs. P-E, P-F), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2020/21 school year is SUSTAINED;
2. Within thirty (30) days of the date of this Order, the DOE shall reimburse the parents, and/or directly pay the Private Center, for 348 hours of instruction provided to the student during the 2020/21 school year at a rate of $152 per hour.
Dated: March 27, 2023
/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 a 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 plan 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/Impartial Hearing Request, 6/15/20, 6 pgs.
B. Individualized Education Services Program (IESP), 12/4/19, 9 pgs.
C. Neuropsychological Evaluation Report, 9/17/19, 17 pgs.
D. Recommendation Letter & Evaluation Summary, 7/23/19, 6 pgs.
E. Account Transaction Statement, 10/19/20 – 11/3/20, 4 pgs.
F. Invoice, 11/23/20, 1 pg.
G. Progress Report, 11/5/20, 2 pgs.
SCHOOL DISTRICT
None
IMPARTIAL HEARING OFFICER
I. Extension Order, 8/29/20, 1 pg.
II. Extension Order, 9/28/20, 1 pg.
III. Extension Order, 10/28/20, 1 pg.
IV. Extension Order, 11/27/20, 1 pg.
V. Extension Order, 12/27/20, 1 pg.
VI. Extension Order, 1/26/21, 1 pg.
VII. Extension Order, 2/25/21, 1 pg.
VIII. Extension Order, 3/27/21, 1 pg.
IX. Extension Order, 4/26/21, 1 pg.
X. Extension Order, 5/26/21, 1 pg.
XI. Extension Order, 6/25/21, 1 pg.
XII. Extension Order, 7/25/21, 1 pg.
XIII. Extension Order, 8/24/21, 1 pg.
XIV. Extension Order, 9/23/21, 1 pg.
XV. Extension Order, 10/23/21, 1 pg.
XVI. Extension Order, 11/22/21, 1 pg.
XVII. Extension Order, 12/22/21, 1 pg. XVIII. Extension Order, 1/21/22, 1 pg.
XIX. Extension Order, 2/20/22, 1 pg.
XX. Extension Order, 3/22/22, 1 pg.
XXI. Extension Order, 4/21/22, 1 pg.
XXII. Extension Order, 5/21/22, 1 pg. XXIII. Extension Order, 6/20/22, 1 pg.
XXIV. Extension Order, 7/20/22, 1 pg.
XXV. Extension Order, 8/19/22, 1 pg.
XXVI. Extension Order, 9/18/22, 1 pg. XXVII. Extension Order, 10/18/22, 1 pg. XXVIII. Extension Order, 11/17/22 1 pg.
XXIX. Extension Order, 12/17/22, 1 pg.
XXX. Extension Order, 1/16/23, 1 pg.
XXXI. Extension Order, 2/15/23, 1 pg. XXXII. Extension Order, 3/17/23, 1 pg.
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’ respective witnesses. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons 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. 4, 18; Exs. IHO-II – IHO-XXXII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] The term “SETSS” is not specifically identified on New York State’s continuum of special education services, see 8 NYCRR § 200.6; a problem that has been discussed in numerous SRO decisions, see, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 17-034 at 8-9 (SRO Aug. 10, 2017); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 16-056 at 12-19 (SRO Nov. 2, 2016).
[5] 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;
[6] 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).
[7] 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.
[8] The Commissioner of Education has made it abundantly clear, and has repeatedly held, that public school districts lack the authority to provide core instructional services through independent contractors. See Appeal of Boyd, 51 Ed. Dept. Rep., Decision No. 16,364 (June 28, 2012); Appeal of Woodarek, 46 Ed. Dept. Rep. 1, Decision No. 15,422 (July 7, 2006); Appeal of Sweeney, 44 Ed. Dept. Rep. 176, Decision No. 15,139 (Nov. 24, 2004); see also Board of Coop. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 (3d Dep't 2007).
[9] The SRO has recently noted that there is no material difference between the FAPE standard and the “equitable services standard” under the State’s dual enrollment statute, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 5 n.4 (SRO Sept. 23, 2020), since the dual enrollment statute has been routinely treated by the New York Court of Appeals as providing eligible students with an individual right to special education services that must be tailored to the student's particular needs by the CSE as well as the right to seek redress through the due process hearing system called for by the IDEA, see Board of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289 (2010) (reviewing due process hearing determinations and noting that the pertinent question is what the educational needs of the particular student require); Board of Educ. of Monroe- Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 188 (1988) (noting that services under the dual enrollment statute must take into account the individual educational needs of the student in the least restrictive environment).