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CASE NUMBER: 570013 – NYC: 224494
FINDINGS OF FACT AND DECISION
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (DPC) on or about February 15, 2022.
The Parent alleges that the Department of Education (DOE) failed to create and implement an individualized education service plan (IESP) for the Student for the 2021-2022 school year.[1] The Parent now seeks continuation of the Student's last IESP, which spanned from November 25, 2020, to October 21, 2021 (2020 IESP), and mandated five periods per week of Special Education Teacher Support Services (SETSS), two, 30-minute individual sessions of speech/language (s/l) therapy administered bilingually in Yiddish, and two, 30-minute sessions of counseling services (one individual, one group) also administered bilingually in Yiddish. [2]
On this record, and as more fully discussed below, I find that the Parent did not make a timely written request for services as required, per New York State Education (Educ.) Law § 3602-c, which relieves DOE of legal responsibility to provide services for the 2021-2022 school year, except for the time period from September 13, 2021, to October 21, 2021, when the 2020 IESP overlapped the 2021-2022 school year. In reaching my conclusions, I have considered and weighed all of the evidence in the hearing record before me. As a result, I find that DOE did not violate Federal or State law for failing to provide a 2021 IESP and I deny the majority of the Parent's requested relief.
PROCEDURAL HISTORY
I was appointed on December 4, 2022, after the rescission of the appointments of two prior Independent Hearing Officers (IHO). One of the prior IHOs issued a pendency order to continue the services mandated by the 2020 IESP until a final decision and order was rendered. Thereafter, I adjudicated a prehearing conference on December 8, 2022, and a due process hearing on January 5, 2023. I issued orders of extension on December 8, 2022, to bring the case into compliance.
At the due process hearing, Parent's representative provided: the DPC;[3] the 2020 IESP; [4] and a list of certificates for a service provider.[5] Other exhibits were either withdrawn[6] or not admitted on DOE's objection for untimely disclosure, per 8 NYCRR 200.5j(3)(xii). [7]
FINDINGS OF FACT
As previously mentioned, the allegations in the DPC pertained to the 10-month, 2021-2022 school year. When DOE drafted the 2020 IESP, the Student was then [REDACTED] years old, in the [REDACTED] grade, and refused s/l therapy services.[8] The list of certifications of the service provider showed that he held two active certificates: Early Childhood Education (Birth-Grade 2) and Student's with Disabilities (Birth-Grade 2).[9] No other evidence was admitted into the record. Consequently, nowhere in the Parent's evidence did he establish that he timely requested the services from DOE that he now seeks.
ANALYSIS
A board of education must offer a free appropriate public education (FAPE) to each student with a disability residing in the school district who requires special education services or programs.[10] However, the Individuals with Disabilities Education Act (IDEA) confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[11] 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. [12]
However, under NY State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing 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.[13] This provision is commonly known in New York as the "dual enrollment" statute. "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."[14] In such circumstances, the district of location's committee on special education (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 [individualized education program, or IEP]."[15] 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."[16] Thus, under State law, an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, while also enrolled in the public school district, for the purpose of receiving special education programming under Educ. Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student if: the services offered by the board of education were inadequate or inappropriate; the services selected by the parents were appropriate; and equitable considerations support the parents' claim.[17] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA.[18] Accordingly, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.
Here, although the Parent claims in the DPC that DOE failed to properly fulfill its equitable duties and denied the Student a FAPE for the 2021-2022 school year, the Parent provided no evidence that he submitted a timely written request for services by June 1, 2021, in accordance with Educ. Law § 3602-c, which supports the conclusion that the Parent, rather than DOE, failed to comply with statutory requirements.
Educ. Law § 3602-c requires that parents who privately enroll their children in nonpublic schools and seek to obtain educational services for students with disabilities must first file a written request for such services in the district in which the home school is located, on or before the first day of June preceding the school year for which the request for services is made.[19] That request then obliges the CSE to review the request, develop an IESP based on the student's individual needs, and implement the necessary special education programs and services.[20] In the absence of the Parent's timely written request for an IESP for the 2021-2022 school year, the Parent cannot now claim any disagreement with services (or lack of services) for the 2021-2022 school year, because the Parent was not entitled to receive any services.
If the Parent intends to continue to enroll the Student in a nonpublic school and wants DOE to provide services for the Student, the Parent must comply with Educ. Law § 3602-c by, among other things, submitting a timely written request for special education services.[21] Should the Parent find that DOE failed to engage in the special education planning process or failed to send a teacher to the private school to provide the requisite special education services, the procedure for obtaining private services is to send a timely notice of unilateral placement then obtain reliable proof of an agreement between the Parent and the private entity that details the essential terms under which the special education services are provided and who is legally responsible for the costs.[22] Here, the Parent provided only the DPC, the 2020 IESP, and a list of service provider certifications. Even assuming that the Parent had offered evidence of a timely request services for the 2021-2022 school year and that he paid out of pocket for a SETSS, I would not find the SETSS provider here appropriate because per the 2020 IESP, the Student is at least in the [REDACTED] grade and the provider's certifications limit his services to Grade 2 or younger. Nor would I find s/l therapy appropriate relief when again, on this very limited record, the Student refused that service.
Nevertheless, DOE did not dispute that it did not implement the portion of the 2020 IESP that fell within the 2021-2022 school year (September 13, 2021, to October 21, 2021), which is the school year at issue in the Parent's due process complaint. Although already addressed by the pendency order issued by the prior IHO, on the merits, I order DOE to provide or fund the services mandated by the 2020 IESP for the portion of time that falls within the 10-month, 2021-2022 school year.
Based on the Parent's failure to comply with Educ. Law § 3602-c by failing to provide DOE with the requisite timely notice and request for services for the 2021-2022 school year, I do not find that DOE violated Federal or State law. I further find that DOE is not obliged to provide the Student with § 3602-c services for the 2021-2022 school year, except as outlined above.[23] I therefore deny the Parent's remaining requested relief.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY:
1. ORDERED THAT DOE shall provide or fund the services set forth in the 2020 IESP from September 13, 2021, the first day of school, until October 21, 2021, the date that the 2020 IESP expired, and shall issue payment directly to the provider of the Parent's choosing, within 30 days of satisfactory proof of services rendered, as determined by DOE's Implementation Liaison, and at market rate, also as determined by DOE's
Implementation Liaison. Those services are:
a. five periods per week of SETSS;
b. two, 30-minute individual sessions of speech/language therapy administered bilingually in Yiddish; and
c. two, 30-minute sessions of counseling services (one individual, one group) also administered bilingually in Yiddish. [24]
2. FURTHER ORDERED THAT the Parent's remaining claims are DISMISSED WITH PREJUDICE.
SO ORDERED.
January 23, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
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 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.
DISTRICT EVIDENCE
PARENT EVIDENCE
A. Impartial Hearing Request 02/15/22 6 pages
B. Individualized Education Services Program C. -- D. Provider's Certificate 2 E. -- F. -- 10/21/20 12 pages
Footnotes
[1] Ex. A.
[2] Id.
[3] Ex. A.
[4] Ex. B.
[5] Ex. D.
[6] Ex. C, F. Tr. 15 7-19; 19 19-20, 23-24.
[7] Ex. E; Tr. 16 2-25; 17 1-25; 18 1-22, 19 24-25; 20 1.
[8] Ex. B1, B2.
[9] Ex. D.
[10] 20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2).
[11] See 34 CFR 300.137(a).
[12] See 34 CFR 300.134, 300.137(a), (c), 300.138(b).
[13] Educ. Law § 3602-c(2) (emphasis added).
[14] Id. (emphasis added).
[15] Educ. Law § 3602-c(2)(b)(1) (emphasis added).
[16] Id.
[17] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 (1985); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009).
[18] 471 U.S. at 370-71; I, 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[19] Educ. Law § 3602-c(2)(a), (2-c).
[20] Educ. Law § 3602-c(2)(b)(1).
[21] See Application of a Student with a Disability, Appeal No. 18-028; see also V.D. v. New York, 403 F. Supp. 3d 76, 84, 2019 U.S. Dist. LEXIS 139815, *14, 2019 WL 3886622 ("In order to receive these services, a parent must . . . make a written request for services to the local school district's board of education.")
[22] See Application of a Student with a Disability, Appeal No. 22-088.
[23] See Application of a Student with a Disability, Appeal No. 18-028 ("The IHO then determined that the district did not violate Federal or State law when it did not develop an IESP for the student because the parent failed to make a timely written request for services . . . . The hearing record supports the IHO's determination that the parent did not request an IESP by June 1, 2018, in accordance with Education Law § 3602-c.").
[24] Id.