New York City Department of Education, Impartial Hearing Decision

Case Number: 587132 – NYC: 238483

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Ronald Abraham

Date of Filing: September 19, 2022

Date of Hearing: March 20, 2023

Date of Decision: March 21, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 20, 2023

For the Student:

REDACTED, Parent Student

For the Department of Education:

REDACTED, DOE Attorney

BACKGROUND

Student is a [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:

1) Student be granted an order for Pendency;

2) the DOE be ordered to fund Student’s SETSS, as set forth in Student’s most recent IESP, at an enhanced market rate; and

3) the DOE be ordered to provide Student with compensatory hours for all SETSS and related services Student has not received as a result of the DOE’s failure to assign Student providers of these services. ^[2]

PROCEDURAL HISTORY

On September 19, 2022, Parent filed a due process complaint (DPC) against the DOE, on behalf of Student, under Case No. 238483, 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 October 19, 2022, the resolution period expired without the parties reaching an agreement. On December 9, 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 December 29, 2022, January 18, 2023, and February 17, 2023, status conferences were held. Finally, on March 20, 2023, the hearing on the merits was held.

At the hearing, Parent submitted two (2) exhibits, all of which were admitted into evidence. Parent also testified on behalf of Student. The DOE waived its opening statement, did not introduce any documentary evidence, did not present any witnesses, cross examined Parent, and made a closing statement. 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

I. PENDENCY

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino, 959 F.3d at 531 [2d Cir. 2020] cert. denied sub nom. Paulino v. NYC Dep't of Educ., 2021 WL 78218 (U.S. Jan. 11, 2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school" (Honig v. Doe, 484 U.S. 305, 323 [1987] [emphasis in original]; Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985]).

A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE (Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 [noting that "pendency placement and appropriate placement are separate and distinct concepts"]). The pendency provision does not require that a student remain in a particular site or location (Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980]; see Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006] [noting that the "current placement is generally not considered to be location-specific"]), or at a particular grade level (Application of a Child with a Disability, Appeal No. 03-032; Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.3d at 163, citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed" (Concerned Parents, 629 F.2d at 753, 756), and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers" (T.M., 752 F.3d at 171). However, if there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement (see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007]). Moreover, a prior unappealed IHO decision may establish a student's current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden,

49 IDELR 197).

Once a student's "then-current educational" placement or pendency placement has been established, it can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate (34 CFR 300.518[a], [d]; 8 NYCRR 200.5[m][1], [2]; see Ventura de Paulino, 959 F.3d at 532; Schutz, 290 F.3d at 483-84; New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 [S.D.N.Y. Mar. 17, 2010]; Student X, 2008 WL 4890440, at *23; Arlington, 421 F. Supp. 2d at 697; Murphy, 86 F. Supp. 2d at 366; Letter to Hampden, 49 IDELR 197). Accordingly, implicit in the concept of “educational placement” in the stay-put provision (i.e., a pendency placement) is the idea that the parents and the school district must agree either expressly or as impliedly by law to a child’s educational program.” (Ventura de Paulino, 959 F.3d at 532). However, for the pendency provisions of the IDEA to apply, a due process proceeding must be currently pending. 20 U.S.C. § 1415(j); Education Law § 4404(4); 34 CFR 300.518(a); 8 NYCRR § 200.5(m); Honig, 484 U.S. at 323; Mackey, 386 F.3d at 160; Doe v. East Lyme Bd. of Educ., 962 F.3d 649, 659 [2d Cir. 2020]; Letter to Winston, 213 IDELR 102 (OSEP 1987); Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 526 (S.D.N.Y. 2011).

Absent one of the foregoing events, once a pendency placement has been established, it "shall not change during those due process proceedings," S.S., 2010 WL 983719, at *1 [emphasis in the original]). And upon a pendency changing event, such changes apply "only on a goingforward basis" (id.). With that said, it has been held that in certain circumstances a court may, on equitable grounds, retroactively adjust a student's pendency placement if a state-level administrative decision in a parent's favor was not issued in a timely manner (see Mackey, 386 F.3d at 164-66; Arlington, 421 F. Supp. 2d at 701; O'Shea, 353 F. Supp. 2d at 457-58; Murphy, 86

F. Supp. 2d at 366-67). At the hearing, it was undisputed that Student’s Individualized Education Services Program (IESP) dated June 30, 2020 was Student’s most recent IESP. It was further undisputed that the DOE has not provided Student with the services recommended in said IESP during the 2022-2023 school year. As a result, I find Student is entitled to pendency based upon the placement contained in Student’s June 30, 2020 IESP from September 19, 2022 through the date of this decision.

II. SETSS AND RELATED SERVICES

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 failed to introduce any evidence or testimony 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 school year.

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. As such, Parent’s requested relief is hereby denied, and the due process complaint is dismissed with prejudice.

ORDER

Based on the above Findings, it is hereby: ORDERED, for the purposes of Pendency only, the DOE shall provide Student with the following SETSS Services and Related Services, as set forth in Student’s IESP dated June 30, 2020, from September 19, 2022 through the date of this decision: 1) SETSS 8 periods per week in Yiddish; 2) Speech-Language Therapy 2x30 per week in Yiddish; 3) Occupational Therapy 2x30 per week; and 4) Counseling Services 2x45 per week; ORDERED, if the DOE does not begin to provide Student with the services listed in the order directly above within fifteen (15) calendar days of the date of this decision, the DOE shall fund said services, by an independent provider of Parent’s choosing, at a rate not to exceed $175.00 per hour; ORDERED, the DOE did not fail to provide Student with a FAPE for the 2022-2023 school year by not providing Student with the SETSS Services and Related Services set forth in Student’s IESP dated June 30, 2020, and ORDERED, the due process complaint is dismissed with prejudice.

So Ordered.

Ronald Abraham Dated: March 21, 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

A. Due Process Complaint 09/17/2022 3 pages

B. Individualized Education Services Program (“IESP”) APPENDIX 06/3/2020 11 pages

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent/Guardian

REDACTED DOE’s Attorney

REDACTED School District

Footnotes

[1] Ex. B at 1.

[2] Ex. A at 2.