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CASE NUMBER: 582575 - NYC: 234346
FINDINGS OF FACT AND DECISION
Case Number: 234346
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District: [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 09/07/2022
Hearing Requested by: Parent
Date of Hearing: 11/15/2022
Record Close Date: 11/15/2022
Date of Decision: 11/17/2022
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (DPC) on or about September 7, 2022.
The Parent alleges that the Department of Education (DOE) failed to create and implement an individualized education service plan (IESP) for the 2022-2023 school year; and also failed to provide the Student with Special Education Teacher Support Services (SETSS) and related services, as mandated by the Student’s previous IESP.[1] The Parent now seeks direct funding of those SETSS at an enhanced rate, issued to the provider of her choice, and an order that DOE provide the related services.[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 absolves DOE of legal responsibility to provide services for the 2022-2023 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 and I deny the Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed on October 7, 2022. The case did not resolve at a settlement conference held on November 9, 2022, and I scheduled it for a due process hearing on November 15, 2022.
At the due process hearing, Parent’s representative provided a copy of the DPC, the Student’s previous IESP, a contract with a SETSS provider signed by the Parent on July 1, 2022, and a three-sentence affidavit from the provider’s financial officer attesting that it charged $195 per hour.[3] The affiant also provided live testimony. However, nowhere in the Parent’s evidence did the Parent ever assert that she requested the services from DOE that she 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.[4] 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.[5] 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.[6]
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.[7] 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.”[8] 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].”[9] 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.”[10] 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.[11] 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.[12] 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 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.[13] 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.[14]
Here, Parent’s representative 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 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.[15] 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[16] 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.[17]
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, 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 7, 2022, DUE PROCESS COMPLAINT IS DISMISSED WITH PREJUDICE.
SO ORDERED.
November 17, 2022
/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
Exhibit
Title
Date
Pages
1.
None.
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Impartial Hearing Request
09/07/2022
8
B.
CSE IESP
09/21/2020
10
C.
--
D.
Parent Agreement
07/01/2022
3
E.
Affidavit of Services
11/08/2022
1
Footnotes
[1] Ex. A.
[2] Id.
[3] Parent’s attorney withdrew Exhibit C after the undersigned IHO discovered that Parent’s attorney offered the same document in two other due process hearings and expressed grave concerns related to fraud.
[4] U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2).
[5] See 34 CFR 300.137(a).
[6] See 34 CFR 300.134, 300.137(a), (c), 300.138(b).
[7] Educ. Law § 3602-c(2) (emphasis added).
[8] Id. (emphasis added).
[9] Educ. Law § 3602-c(2)(b)(1) (emphasis added).
[10] Id.
[11] 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).
[12] 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).
[13] Educ. Law § 3602-c(2)(a), (2-c).
[14] Educ. Law § 3602-c(2)(b)(1).
[15] 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.”)
[16] The undersigned IHO does not credit the affiant’s testimony in any respect due to its inexplicable lack of knowledge and detail. Although the witness served as the provider’s Finance Officer, he did not know what procedures were followed if a client defaulted on an invoice, or who in his own department managed that task. He did not even know how many people worked on his team. He had no information about the Student and had never met or even spoken to the Parent.
[17] See Application of a Student with a Disability, Appeal No. 22-088.