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CASE NUMBER: 249348
FINDINGS OF FACT AND DECISION
Case Number: 249348
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: Parent
Request Date/Date Complaint Filed: 06/27/2023
Date(s) of Hearing: 9/13/2023
Actual Record Closed Date: 11/6/2023
Date of Decision: 11/6/2023
Hearing Officer: Elana Soleimani
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York Education Law, and/or Section 504 of the Rehabilitation Act of 1973. The Parent filed this case on June 27, 2023.
PROCEDURAL HISTORY
Parent alleges that the DOE failed to provide adequate special education services for Student for the 2021-2022 school year.[1] Parent is seeking reimbursement for payments made to transport Student after school hours to receive SETSS during the 2021-2022 school year.
I was appointed as the impartial hearing officer (IHO) on June 28, 2023. On July 31, 2023, both parties appeared virtually for a pre-hearing conference, after which a Pre-Hearing Conference (“PHC”) Summary and Order was issued to the parties. The impartial hearing was held on September 13, 2023. The DOE provided no exhibits, and Parent provided seven exhibits which were admitted into evidence. [2] Neither party introduced witness testimony. Both parties delivered combined opening statements and closing arguments. This decision now follows.
FINDINGS OF FACT
In light of the forgoing and as more fully discussed below, I find that the DOE failed to meet their burden with respect to the provision of equitable services and failed to provide Student with transportation to and from SETSS for the 2021-2022 school year and that the relief Parent seeks is appropriate.
For the 2021-2022 school year, the Student was mandated to receive 5 sessions per week of Special Education Teacher Support Services (SETSS), direct group service in Yiddish at a separate location. [3] The District did not implement these services and Parent initiated a DPC (No. 221368) on November 12, 2021, seeking 5 periods of SETSS bilingual in Yiddish at an enhanced rate for the 2021-2022 school years. That matter was resolved via resolution agreement dated June 7, 2022. [4]
The Parent independently located and retained a SETSS provider. The SETSS provider delivered the services to the Student during school hours and at a separate location. 5 Parent paid out of pocket for round-trip transportation costs to and from SETSS. 6 These transportation costs were necessary; otherwise, the IESP and subsequent resolution agreement could not be implemented, and the Student would not have been able to receive these services.
The district neither presented documentary evidence nor affidavit testimony that the cost of transportation was unreasonable or inflated. There is also no evidence in the record that the Parent engaged in conduct that impeded the District’s ability to arrange transportation for the Student to receive the SETSS for the 2021/2022 school year, which would reduce the Parent’s entitlement to reimbursement in whole or in part. Accordingly, the cost of the transportation was reasonable, and I award full reimbursement to the parent.
CONCLUSIONS OF LAW AND ANALYSIS
Education Law §3602-c
A student parentally placed in a private school is entitled to special education services under the IDEA.[7] However, Congress did not delineate rights to any particular service, program, or due process in the IDEA but, instead, delegated this authority[8] to the state legislatures and agencies.[9] Therefore, the extent of both the available services and the accompanying due process rights are set forth under the New York State Education Law and the implementing Regulations of the Commissioner of the Education Department,[10] which have granted nonpublic school students with disabilities the right to any relief available in a civil action under the IDEA.” [11]
Under § 3602-c [2] [a], school districts shall provide services to nonpublic school students upon the parent’s written request. “Services” are defined as instruction for (a) the education of students with 5 P-C 6 See P-E disabilities and (b) counseling, psychological, and social work services pertaining to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district. [12] The district must also provide transportation to enable the student to receive such services. [13]
The Court of Appeals has also held that Education Law § 3602-c expressly “authorizes services to private school handicapped children and affords them an option of dual enrollment, so that they may enjoy equal access to the full array of specialized public school programs.”[14] Moreover, “the statute was plainly designed to increase benefits afforded to handicapped children in private schools -- not to limit them -- by offering these students access to all of the special programs provided for public school students” and enable such students to share “the benefits from such public programs.” [15]
Therefore, to afford equal access to services, the district must comply with all New York state implementing regulations and offer students parentally placed in private schools a FAPE on an equitable basis. Any violations of Education Law § 3602-c is a question of New York State law; thus, the federal courts lack subject matter jurisdiction to hear such due process complaints. [16]
FAPE & Transportation
The district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the Education Law §4404 [1] [c], except in cases where the parent is seeking tuition reimbursement, which is not at issue herein. The district must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[17] i.e., evidence of greater weight or more convincing than the evidence offered in opposition thereto. [18]
The IDEA specifically includes transportation and any modifications or accommodations necessary to assist a student to benefit from their special education.[21] Similarly, New York State law defines special education as “specially designed instruction … and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”[22] By the authority delegated by Congress, the New York State Legislature afforded all private school students full access to all special education services.
Here, the failure to implement the IESP improperly and unlawfully, shifted to the Parent the District’s duty to provide equitable services.[23] This left the Parent no alternative but to resort to selfhelp in obtaining an available SETSS provider.[24] Therefore, the failure to provide and fund the Student’s necessary transportation costs directly caused by the failure to implement the IESP is a substantive denial of a FAPE on an equitable basis. The Parent could not implement the IESP without round-trip transportation.[25] But for the District’s improper conduct, the Parent would not have incurred the expenses.
The District’s argument that transportation was not included on the IESP and therefore is not a recommended or equitable service is without basis in law or fact as it is contrary to the Court of Appeals and the plain wording of the Education Law and its implementing regulations.[26] The transportation services paid for by the Parent afforded the Student equal access to special education services and 19 8 NYCRR §200.5 [i] [4] [a]
20 R.B. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIX 106273, p.15; and Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 D.D.C. 2007], citing Lesesne v. District of Columbia, 447 F.3d 828, 832 [D.C. Cir. 2006]; compare Jalloh v. District of Columbia, 535 F. Supp.2d 13, 20 [D.C.D.C. 2008] Accordingly, as the district has failed to meet its burden of proof, a full award reimbursing the parent for transportation costs is warranted. As the parent has provided proof of the expenses and the completed forms as required by the district, the parent does not need to resubmit these forms to the implementation unit.
ORDER
NOW, in light of the above findings of fact and conclusion of law, it is hereby ORDERED that: (1) The District failed to offer the Student a FAPE on an equitable basis for the 2021-2022 school year.
(2) The Parent’s claim for reimbursement for the Student’s transportation to and from the SETSS Provider is GRANTED.
(3) The District shall, within thirty-five (35) days of receipt of this ORDER, reimburse the Parent in the amount of $3,276.00 for out-of-pocket transportation costs incurred for the 2021-2022 school year.
SO ORDERED
DATED: 11/6/2023
Elana Soleimani, Esq.
Impartial Hearing Officer
Board of Education v. Weider, 72 NY2d 184
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Term Used In FOFD Redacted Information
Student REDACTED
Parent/Guardian REDACTED
Parent Attorney/Representative REDACTED
District Attorney/Representative REDACTED
Private School REDACTED
Car Service REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 6/27/2023 4 pages
B. Individualized Education Services Program 10/26/2021 10 pages
C. SETSS Vendor Monthly Invoices Various 9 pages
D. Parent Transportation Reimbursement Voucher Various 16 pages
E. Car Services Receipts Various 8 pages
F. Calculation of total receipts (from exhibit E) Undated 1 page
G. Resolution Agreement 8/3/2022 2 pages
DOE EXHIBITS
None
IHO EXHIBITS
None
Footnotes
[1] P-A
[2] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision
[3] P-B-6
[4] P-G
[7] See H.C. v. Colton-Pierrepont Cent. Sch. Dist., 341 Fed. Appx. 687, 691 [2d Cir. 2009]. The Second Circuit held that a student enrolled in and attending a nonpublic school is eligible to receive services under the IDEA. The right to services under the IDEA is distinct from the right to due process.
[8] Mistretta v. United States, 488 US 361, 372-373 [1989] [Congress simply cannot do its job absent an ability to delegate power under broad general directives…this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.]
[9] See 34 C.F.R. § 300.140 [a] and [c] and 34 C.F.R. § 300.151 through 34 C.F.R. § 300.153
[10] Education Law § 3602-c and § 4401 through § 4404, and 8 NYCRR § 200.1 and § 200.5
[11] Education Law § 4404 [3] [b].
[12] Education Law § 3602-c [1] [a]
[13] 8 NYCRR § 200.2 [b] [1]
[14] Board of Education v. Weider, 72 NY2d 174, 184 [1988] [emphasis added]
[15] Board of Education v. Weider, 72 NY2d 184-185; See also, NYS_Bill_and_Veto_Jackets_2008_Chapter_217. Leg. History, p.14, which amended Education Law § 3602-c codifying home-schooled children’s right to IESP services. (The school district of residence, as the local educational agency, has an obligation under the IDEA to ensure that a free appropriate public education is available to all students with disabilities who reside within the district.)
[16] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 292; Bay Shore Union Free Sch. Dist. V. Kain, 485 F.3d 730, 736 [2d Cir. 2007]; and see Gabel ex rel. L.G. v. Bd. Of Educ., 368 F. Supp. 2d 313, 333 [S.D.N.Y. 2005]; and see H.C. v. Colton-Pierrepont Cent. Sch. Dist., supra
[17] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 516, 521 [D.C. Cir. 2005]
[18] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994] The district did not serve a response to the due process complaint within ten (10) days of filing the DPC. 19 Although default is not the penalty for the failure to serve an appropriate response to the DPC, it is a procedural violation that is only actionable if it affects the student’s substantive rights. 20 Therefore, a tribunal must thoroughly examine the record even when the district defaults.
[21] See 20 U.S.C. § 1401 [26]; 34 CFR § 300.34 [a] and [c] [16]
[22] Educ. Law § 4401 [1], [2] and [4] [a] [emphasis added], 8 NYCRR § 200.1 [ww] and 8 NYCRR § 200.2 [b] [1]; [a]; and see Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 [1992]
[23] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[24] Id.
[25] R.B. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIX 106273, p.15; and Sykes v. District of Columbia, 518 F. Supp. 2d 267
[26] Educ. Law § 4401 [1], [2], and [4] [a], 8 NYCRR § 200.1 [ww] and 8 NYCRR § 200.2 [b] [1] programs. 27 The record established that the only way Student was able to receive the services mandated in Student’s IESP, was by going to the provider agency’s office location, Further, it is noted that this argument is also without merit since, at the time the IESP was created, the parent could not have foreseen that 1) the district would not implement the IESP and send a provider to the student at home or school for the 2021/2022 school year and 2) that if the district did not implement the IESP, transportation would be necessary.