New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 585224 - NYC: 236763

FINDINGS OF FACT AND DECISION

Case Number: 236763

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Ronald Abraham

Date of Filing: September 8, 2022

Date of Hearing: December 12, 2022

Date of Decision: January 20, 2023

Names and Titles of Persons Who Appeared December 12, 2022

For the Student

REDACTED, Parent’s Attorney/Representative For the New York City Department of Education

No one appeared at the hearing on behalf of the DOE.

BACKGROUND

Student is an REDACTED-year-old child who is classified by the New York City Department of Education’s (DOE or District) Committee on Special Education (CSE) as a child with a Speech or Language Impairment.^[1] The Student’s classification is not in dispute.

Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (FAPE) for the 2022-2023 school year and requests the following findings: 1) the DOE fund three (3) hours per week of 1:1 special education teacher support services (SETSS), in Yiddish, and speech language therapy (2x30 1:1), in Yiddish, at a rate of $197.00 per hour.^[2]

PROCEDURAL HISTORY

On September 8, 2022, Parent filed a due process complaint (DPC) against the DOE, on behalf of Student, under Case No. 236763, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1). On November 21, 2022, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On November 28, 2022, a settlement conference was held. Subsequently, on December 12, 2022, the hearing on the merits was held.

At the hearing, Parent’s attorney submitted eight (8) exhibits, all of which were admitted into evidence. Parent’s attorney also presented two (2) witnesses via affidavit: 1) Educational Director (ED); and 2) Parent. The DOE did not appear at the hearing. A list of the documentary evidence in this proceeding is appended to this Order.

JURISDICTION

A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.

LEGAL FRAMEWORK

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

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 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 (Educ. Law § 3602-c[2]) (emphasis added). This 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" (Educ. Law § 3602-c[2][a]) (emphasis added). 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]" (Educ. Law § 3602c[2][b][1]) (emphasis added). 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.). Thus, under State law, an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education 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 by his or her parents, 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 (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]). 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 (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.

FINDINGS OF FACT AND DECISION

Education Law § 3602-c clearly requires that parents who privately enroll their children in nonpublic schools and who 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 (Educ. Law § 3602-c[2][a], [2-c]). Such a request from a parent then triggers the obligation a CSE has to review the parent’s request for services, develop an IESP for the student based on the student's individual needs, and then assure that special education programs and services are made available to the student (Educ. Law § 3602c[2][b][1]).

At the hearing, Parent introduced an exhibit titled “Letter from Parent to CSE Chairperson”.^[3] Said letter is dated “June, 2022” and does not contain proof of service. Furthermore, in regard to when the letter was sent, at the hearing Parent’s counsel stated, “I unfortunately do not have the exact date”.^[4] As the letter does not specify on which date in June 2022 it was created, and Parent’s counsel was unable to verify when the letter was sent to the DOE, I do not credit the letter as proving that Parent timely notified the DOE of the request for services.

Parent failed to introduce any credible evidence that Parent made a timely written request for services for the 2022-2023 school year by June 1, 2022, as required under Education Law § 3602-c. As a result of Parent not making a timely request for services, Parent is not entitled to claim any disagreement regarding services for the 2022-2023.

If Parent intends to continue to enroll Student in a nonpublic school and desires the District to provide services for the student, Parent must comply with Education Law §3602-c by, among other things, submitting a timely written request for special education services (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.”).

Based on Parent’s failure to comply with Education Law § 3602-c by failing to provide the District with the requisite timely notice and request for services, I find that the District did not fail to provide Student with a FAPE for the 2022-2023 school year by not providing Student with the requested services. Furthermore, I note the following discrepancy regarding Parent’s evidence: 1) although Parent introduced a “Provider Outreach Log – SETSS”^[5] showing that Parent attempted to contact twenty (20) SETSS providers via telephone, all twenty (20) calls were made on September 29, 2022, which is more than four (4) months after Parent signed the agreement with Student’s current SETSS provider^[6]. At the hearing, Parent’s attorney did not attempt to clarify this issue. Lastly, although Parent requested pendency in the DPC dated September 8, 2022, at the hearing, Parent’s counsel stated Student has received those services pursuant to the pendency protections of the IDEA.^[7] As such, Parent’s requested relief is hereby denied, and the due process complaint is dismissed in its entirety with prejudice.

ORDER

Based on the above Findings, it is hereby:

ORDERED, the DOE did not fail to provide Student with a FAPE for the 2022-2023 school year by not providing Student with three (3) hours per week of 1:1 special education teacher support services (SETSS), in Yiddish, and speech language therapy (2x30 1:1), in Yiddish; and

ORDERED, the due process complaint is dismissed in its entirety with prejudice.

So Ordered.

Ronald Abraham Dated: January20, 2023

Ronald Abraham (signed electronically)

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.

PARENT’S EVIDENCE

Exhibit

Title

Date

Pages

A Impartial Hearing Request 09/08/2022 2

B Individualized Education Services Program (“IESP”) 02/10/2021 7

C Affidavit of Services 12/05/2022 1

D Letter from Parent to CSE Chairperson June 2022 1

E Provider Outreach Log- SETSS 09/29/2022 3

F Enrollment Contract 09/02/2022 1

G Affidavit of Testimony of REDACTED 12/06/2022 3

H Affidavit of Testimony of REDACTED 12/06/2022 2 APPENDIX Redacted Information

Term Used In FOFD

REDACTED

Student

REDACTED

Parent/Guardian

REDACTED

Parent’s Attorney

REDACTED

School District

Footnotes

[1] Ex. B at 1.

[2] See Ex. A at 2 and Transcript at 8.

[3] Ex. D.

[4] Transcript at 9.

[5] See Ex. E.

[6] See Ex. F.

[7] Transcript at 7.