New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 231687

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Lorianne Wolseley

Date of Filing: 09/06/2022

Hearing Requested by: Parent

Date of Hearing: 11/22/2022

Record Close Date: 12/9/2022

Date of Decision: 12/9/2022

BACKGROUND

Student is classified as a student with a Speech or Language Impairment. For the 2022-2023 school year, Student was parentally placed in Private School. Parent alleges that: (a) the Department of Education (“DOE”) denied Student a free and appropriate education (“FAPE”) by reducing Student’s Special Education Teacher Support Services (“SETSS”); (b) the DOE failed to timely create and implement an individualized education service plan (“IESP”) for the 2022-2023 school year; and (c) the DOE failed to provide Student with SETSS and related services, as mandated by the Student’s previous individualized education plan (“IEP”) (IHO - I). The Parent now seeks direct funding of those SETSS and related services issued to the provider of Parent’s choice, and an order that DOE provide the related services (id.).

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, thereby absolving the DOE of legal responsibility to provide services for the 2022-2023 school year. In reaching my conclusions, I have considered and weighed the evidence in the hearing record before me. As a result, I find that the DOE did not violate Federal or State law and I deny the Parent’s requested relief.

PROCEDURAL HISTORY

A detailed recitation of the procedural history is necessary for this matter. The procedural history is as follows:

On September 6, 2022, a due process complaint (“DPC”) (IHO – I) was filed against the DOE by REDACTED, as attorney for REDACTED (“Parent”), and on behalf of REDACTED (“Student”), under Case No. 231687, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). I was appointed impartial hearing officer (“IHO”) for this case on September 13, 2022. I denied the consolidation of case numbers 226780 and 231687 and issued an order on September 15, 2022 (IHO – II). A pre-hearing conference was scheduled for October 13, 2022.

On October 13, 2022, Parent’s attorney requested an adjournment of the prehearing conference. This request was granted, and the prehearing conference was rescheduled to October 20, 2022 (IHO – III).

On October 20, 2022, during the Prehearing conference, Parties were directed to use affidavit testimony for their intended witnesses. Parties were also instructed to disclose any evidence they intended to use 5 business days before the hearing. A Webex invitation with these directives was sent to the parties (IHO – V; See also Prehearing Conference Transcript). Both parties requested an extension of the compliance date for the availability of witnesses and possibly resolving this matter by a resolution agreement. This request was also granted, and the matter was scheduled for a pendency hearing and a due process hearing to occur on November 22, 2022 (IHO - IV).

On October 20, 2022, after the prehearing conference, Parent’s attorney submitted, by email, pendency disclosures (IHO-VI). On that same day, I reminded the parties that, as had been discussed at the pre-hearing conference, the hearing on November 22 was scheduled to include both a pendency hearing and an impartial hearing. (IHO- VII; See also Prehearing Conference Transcript)

On November 9, 2022, Parent’s attorney sent (by email) a proposed amended due process complaint to myself and the DOE representative (IHO – VIII). I then asked Parent’s Attorney to specifically identify what was changed from the DPC filed on September 6, 2022. (IHO - IX) Parent’s attorney stated that they added a request that the DOE fund counseling services for Student as prescribed in the 2019 IESP (IHO - X).

On November 10, 2022, parties were sent the proposed amendment and the DOE was instructed to respond to my email by November 14, 2022 if they accepted the proposed amendment (IHO – XI).

On November 14, 2022, as the DOE had not indicated its acceptance of the proposed amendment, Parent’s attorney emailed the DOE and myself stating, “our amendment was filed to clarify that there are parts of the 11/21/2019 IESP to which the parent does agree to, whereas the original filing erroneously stated that the parent completely rejects the 11/21/2019 IESP. We believe that it is in the interest of all parties to accept this amendment. The amendment minimizes the disagreement and also allows for the case to proceed without forcing the parent to withdraw and refile.” (IHO- XII).

After reviewing Parent’s initial due process complaint again and in light of Parent’s attorney’s email, I declined to accept the amendment. On November 15, 2022, I wrote to the parties and stated that the DOE failed to respond to my directive and therefore did not accept the proposal.

I informed parties that the pendency and impartial hearing date will be held on the originally scheduled date, November 22, 2022. (IHO – XIII)

On November 21, 2022, Parent’s attorney submitted disclosures for the impartial hearing scheduled to occur the next day. (IHO – XIV^[1] and XV^[2])

On November 22, 2022, Parent’s attorney appeared at the hearing without his client and stated that his witnesses were available to provide testimony. Before going on the record, I asked parties whether Parent’s claims in the DPC were resolved or whether the parties wished to proceed with a pendency hearing and a due process hearing. Parties indicated that the matter had not resolved, and to proceed with the hearing as scheduled. Still off the record, the DOE representative stated that they had received Parent’s impartial due process hearing disclosures the day before and they would not be waiving the disclosure rules. The DOE representative stated that Parent’s documents were submitted untimely and should not be admitted in evidence. I indicated (still off the record) that I would sustain the DOE’s objection.

Parent’s attorney asked for an adjournment in order to comply with the disclosure rules. I denied Parent’s attorney’s request and I noted that this matter had been adjourned previously. I noted that Parent’s attorney had more than enough time to prepare for the hearing. I reminded parties that an IHO must render a decision in IDEA matters timely.

Parent’s attorney then stated that he was not going to withdraw his due process complaint and stated that he would go forward with the hearing. Parent’s attorney was then instructed that the hearing would start, he informed both myself and the DOE representative that he was going to “make a statement and then leave it up to the SRO to decide.” The hearing recording started, and I provided a brief summary of what occurred off the record. The DOE representative reaffirmed on the record that she would not waive the disclosure rule. Parent’s attorney did not request to withdraw his due process complaint without prejudice, so the hearing commenced. I noted the lack of evidence submitted by both parties for the impartial hearing and then invited parties to make opening statements. The DOE representative made an opening statement. I then invited Parent’s attorney to make his opening statement and comments. After Parent’s attorney made his opening statement where he correctly identified that the DOE bears the burden, he disconnected from the Webex hearing.^[3] He was not dismissed, he elected to leave the hearing prior to its conclusion. He never rejoined the conference and did not submit an email explaining his departure, either on November 22 or at any time in the 18 days since. Parent’s attorney had stated in his opening that his witnesses were available to participate at the hearing, however, by him exiting and leaving the Webex hearing, his witnesses were not available to clarify the record.

On November 23, 2022, I sent an email to the parties addressing Parent’s attorney’s conduct during the hearing and I also asked the DOE representative to submit the cases and decisions she referenced at the hearing. (IHO - XVI).

The DOE representative replied to my email and provided the cases and SRO decisions. (IHO XVII)

ADMINISTRATIVE PROCEEDINGS

State regulations set forth the procedures for conducting an impartial hearing and address, in part, minimum procedural protections that shall be afforded to both parties (8 NYCRR 200.5[j]). Among other due process rights, each party shall have an opportunity to present evidence, compel the attendance of witnesses, and to confront and question all witnesses (8 NYCRR 200.5[j][3][xii]). Furthermore, each party "shall have up to one day to present its case" (8 NYCRR 200.5[j][3][xiii]). State regulation further provides that the IHO "shall exclude any evidence" that he or she determines to be irrelevant, immaterial, unreliable, or unduly repetitious" and may limit the introduction of any evidence the substance of which has not been disclosed to a party at least 5 business days before the hearing (8 NYCRR 200.5[j][3][xii]). State regulation further provides that parties to the proceeding may be accompanied and advised by legal counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities, that an IHO may assist an unrepresented party by providing information relating only to the hearing process, and that nothing contained in the cited State regulations shall be construed to impair or limit the authority of an IHO to ask questions of counsel or witnesses for the purpose of clarification or completeness of the record (see 8 NYCRR 200.5[j][3][vii]).

Generally, unless specifically prohibited by regulation, IHOs have broad discretion, subject to administrative and judicial review procedures, as to how they conduct an impartial hearing, so long as they "accord each party a meaningful opportunity" to exercise their rights during the impartial hearing (Letter to Anonymous, 23 IDELR 1073 [OSEP 1995]; See Impartial Due Process Hearing, 71 Fed. Reg. 46,704 [Aug. 14, 2006] [indicating that IHOs should be granted discretion to conduct hearings in accordance with standard legal practice, so long as they do not interfere with a party's right to a timely due process hearing]). At the same time, the IHO is expected to ensure that the impartial hearing operates as an effective method for resolving disputes between the parents and district (id.). State and federal regulations balance the interests of having a complete hearing record with the parties having sufficient opportunity to prepare their respective cases and review evidence.

Also, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the IHO regarding the conduct of the impartial hearing (See Application of a Student with a Disability, Appeal No. 14-090; Application of a Student with a Disability, Appeal No. 09-073; Application of a Child with a Disability, Appeal No. 05-026; Application of a Child with a Disability, Appeal No. 04-103; Application of a Child with a Disability, Appeal No. 04-061). Under sufficiently egregious circumstances, SROs have found that an IHO has properly dismissed a parent's due process complaint notice for his or her failure to comply with an IHO's reasonable directives by not attending an impartial hearing either in person or by an attorney or advocate (see, e.g. Application of a Student with a Disability, Appeal No. 18-111 [finding that it was within the IHO's discretion to schedule the impartial hearing at a district location when the parent did not submit a formal request for a different location and to dismiss the due process complaint notice without prejudice when the parent and her advocates did not appear]; Application of a Student with a Disability, Appeal No. 09-073 [finding that an IHO had a sufficient basis to dismiss a matter with prejudice after the district had rested its case, parent's counsel had been directed by the IHO to produce the parent for questioning by the district at a following hearing date, and neither the parent nor counsel for the parent appeared at the subsequent hearing date]).

Lastly, the IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration of the resolution period (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).

PENDENCY

A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an individualized education program (IEP) or individualized education service plan (IESP),^[4] regardless of the merits of the dispute or the outcome of the relevant proceedings.^[5] The “pendency” provision of the IDEA requires a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.”^[6] The New York State Education Law includes a similar provision, at § 4404(4)(a).

The pendency inquiry therefore focuses on identifying what specific services and placement are required to maintain the student’s "then current educational placement” because the district must continue to finance those services and placement until the dispute is resolved.^[7] To cut off public funds would amount to a unilateral change in placement, which is prohibited by the Act.^[8] Hearing officers and courts have the authority to address disputes regarding pendency and to determine what constitutes the then current educational placement.^[9]

At the pre-hearing conference, the parties agreed that the pendency hearing and the impartial hearing were to be held on November 22, 2022 (See IHO V, VII, IX, XIII). It must be noted that all documents relating to Student’s pendency were timely disclosed and would have been accepted into evidence during the pendency portion of the proceeding. Based on the DPC and IHO VIII-XII, there is arguably an issue to be addressed since Parent’s attorney requested services from the 2018 IEP and the 2019 IESP. However, since Parent’s attorney elected to leave, and I was not able to ascertain the “source and substance of the pendency placement,” a pendency order could not be rendered to the parties. Parent’s attorney elected to exit the hearing rather than act in his client’s interests.

ANALYSIS

This hearing concerns the program and placement of Student whose family asserts the district’s failure to have provided a FAPE during the 2022-2023 school year. Parent’s attorney failed to disclose documents in compliance with the mandated 5 business day disclosure rule (and the DOE did not waive). More importantly, Parent’s attorney left the hearing, after his opening statement, but prior to the conclusion of the hearing. Thus, the hearing continued.

I find my directives to the parties to: (1) submit disclosures timely; and (2) appear for (the entire duration of) the pendency hearing and impartial hearing to be reasonable and within my duties as an IHO. The parties knew the hearing date and the disclosure deadline. I find that Parent’s attorney’s actions hindered this administrative process and were a blatant disregard to this forum. Since Parent’s attorney decided to leave the hearing and failed to present his witnesses to clarify the record, the hearing was held, and a decision is now rendered.

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 [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, Parent’s attorney did not submit their disclosures timely and elected to proceed with the hearing. Parent’s attorney did not present any of his witnesses, and, as stated previously, Parent’s attorney left the hearing after his opening statement. Thus, based on the hearing record before me, I find that although the Parent claims in the DPC that DOE failed to properly fulfill its equitable duties and denied the Student a FAPE for the 2022-2023 school year, the hearing record is devoid of any evidence that the Parent made a timely written request for services by June 1, 2022, 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]

Here, Parent’s attorney offered no evidence that the Parent timely requested an IESP or timely requested that DOE provide services for the 2022-2023 school year as required under Educ. Law § 3602-c. In the absence of the Parent’s timely written request for an IESP for the 2022-2023 school year, the Parent cannot now claim any disagreement with services (or lack of services) for the 2022-2023 school year, because the Parent was not entitled to receive any services.

If a parent intends to continue to enroll their child 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 thereafter 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 requested 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]

Based on Parent’s failure to comply with Educ. Law § 3602-c by failing to provide DOE with the requisite timely notice and request for services, 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 2022-2023 school year. I therefore deny the Parent’s requested relief and dismiss the DPC with prejudice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • THE SEPTEMBER 6, 2022, DUE PROCESS COMPLAINT IS DISMISSED WITH PREJUDICE.

SO ORDERED.

December 8, 2022

Lorianne M. Wolseley

Lorianne M. Wolseley

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.

DOCUMENTS ENTERED INTO THE RECORD

DOE Exhibits

None.

Parent Exhibits

None.

IHO EXHIBITS

Exhibit

Title

Date

Pages

I.

Due Process Complaint

9/2/2022

7 pp.

II.

Email and Order Denying Consolidation

9/15/2022

4 pp.

III.

Parent’s Attorney Email Request to Adjourn the Prehearing Conference

10/13/2022

2 pp.

IV.

Email and Extension Order

10/20/2022

3 pp.

V.

Hearing Instructions to the Parties

10/20/2022

2 pp.

VI.

Email from Parent’s Attorney Regarding the Pendency Hearing - Including Pendency Disclosures (see footnote 1 of this decision)

10/20/2022

28 pp.

VII.

Email Reply From IHO Informing Parties That the Matter Was Scheduled For a Pendency and an Impartial Due Process Hearing

10/22/2022

1 pp.

VIII.

Email From Parent’s Attorney Requesting to Amend the Due Process Complaint

11/9/2022

5 pp.

IX.

Email From IHO Asking Parent’s Attorney to Explain Amendment Request

11/9/2022

1 pp.

X.

Email From Parent’s Attorney Explaining the Change in the Due Process Complaint

11/9/2022

2 pp.

XI.

Email to the Parties Regarding Parent’s Proposed Amendment

11/9/2022

5 pp.

XII.

Email From Parent’s Attorney Explaining the Proposed Change in the DPC filed on September 6, 2022

11/15/2022

2 pp.

XIII

Email to the Parties Denying the Proposed Amendment Request

11/15/2022

3 pp.

XIV

Email with Parent’s Disclosures for Impartial Due Process hearing and Pendency hearing (see footnote 1 of this decision)

11/21/2022

61 pp.

XV.

Updated Email with Parent’s Disclosures for Impartial Due Process hearing and Pendency hearing (see footnote 1 of this decision)

11/21/2022

53 pp.

XVI.

Email to the Parties Addressing Parent’s Attorney Actions and DOE’s Reference to SRO decisions and Case Law

11/23/2022

1 pp.

XVII.

DOE’s Response including Case Law and SRO decision

11/23/2022

81 pp.

Footnotes

[1] It must be noted that while these IHO Exhibits VI, XIV, and XV (Parent’s disclosure and proposed Hearing Exhibits) are now part of the record, these documents have been admitted for the limited purpose of providing a full account of the procedural history of this matter before, during, and after the hearing. The contents of these documents were not reviewed for purposes of reaching a decision on the merits of the claims in the DPC.

[2] Id.

[3] Parent’s Attorney did exactly what he said he would do prior to the start of the hearing record. He made his statement and then exited the Webex hearing.

[4] Pursuant to NYS Education Law § 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located, while they receive general education from the nonpublic school. The school district must provide special education services on an “equitable basis” as compared to other students with disabilities attending public or other nonpublic schools in that district. See 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, September 2007.

[5] See Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004) (citing 20 U.S.C. § 1415(j)); see also Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 (2d Cir. 2020), citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996).

[6] Ventura de Paulino, quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014) (citing Mackey, 386 F.3d at 163).

[7] Zvi D., supra, 694 F.2d 904.

[8] See Id.

[9] See Analysis and Comments to the Regulations, Federal Register, Vol 71, NO. 156, Page 46704 (August 14, 2006).

[10] 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] 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.