Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 252397

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parent

Record Close Date: December 18, 2023

Hearing Officer: Richard A. Liese

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Consultant Impartial Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 16, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Consultant Impartial Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 21, 2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Consultant Impartial Hearing Representative

PROCEDURAL HISTORY

On August 8, 2023, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by REDACTED, Esq., as attorney for REDACTED (“Parent”), and on behalf of her daughter, REDACTED (“Student”), under Case No. 252397, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) [20 U.S.C. § 1415(f)], and Sections 4404(1) and 3602-c (2)(b)(1) of the New York State Education Law (“Education Law”). (Ex. A).

I was appointed impartial hearing officer (“IHO”) for this case on August 9, 2023.

An initial prehearing conference with the representatives of the parties was held on September 21, 2023, a status conference was held on October 16, 2023, and a hearing on the merits of the case went forward on November 21, 2023.

A list of the documentary evidence in this proceeding is appended to this decision. The compliance date for issuing a decision in this case has been extended. (IHO Ex. I - II).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED-year-old nonpublic school child who has been classified by the DOE’s Committee on Special Education (“CSE”) as a student with a Speech or Language Impairment. (Ex. A-1, B-1).

The Parent alleges that at a review meeting held on February 28, 2018, the CSE developed an Individualized Education Services Program (“IESP”) for the Student in which it recommended, among other things, that the Student receive direct group Special Education Teacher Support Services (“SETSS”) 5 periods a week, and individual speech and language therapy (“SLT”) services 3 times a week for 30 minutes each. (Ex. A-2).

The Parent further alleges that the CSE failed to implement the Student’s IESP during the 2021-2022 school year, as the CSE failed to provide the Student with her SETSS services and her SLT services during the 2021-2022 school year, and that the Parent was unable on her own to obtain the SETSS services and SLT services for the Student during the 2021-2022 school year. (Ex. A-2).

As a result, the Parent contends that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year. (Ex. A-2).

The within proceeding pertains to the Parent’s request that the IHO (i) find that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year, and (ii) order the DOE to provide the Student with compensatory education services, consisting of the SETSS services and SLT services to which the Student was entitled, but which the DOE failed to provide. (Ex. A-2).

The DOE did not present any witness testimony or place any documents in evidence in this proceeding. (Tr. 23). Instead, the DOE, in its opening statement, asserted as an affirmative defense that the Parent would be unable to demonstrate that she provided a written request for equitable services to the CSE prior to June 1, 2021. (Tr. 24, 25). Additionally, the DOE contended that the hourly rate for any SETSS services awarded should be at a market rate of $125, and that it was the Parent’s burden to explain how the SETSS services would be provided in order to demonstrate their appropriateness. (Tr. 25).

The Parent presented a case that consisted of direct testimony by affidavit from the Parent; additional testimony at the hearing from the Parent; and documents placed in evidence by the Parent’s attorney. (Tr. 24, 32-38; Ex. A - C).

LEGAL STANDARDS AND FRAMEWORK

Both the IDEA and the Education Law require school districts to offer a free appropriate public education (“FAPE”) to each child with a disability residing in their district who requires special education programs or services. 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

However, the IDEA does not confer on students who are enrolled by their parents in nonpublic schools an individual entitlement to all special education programs or related services they would receive if they attended public schools (see 34 C.F.R. § 300.137[a]). Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students who are enrolled by their parents in nonpublic schools (see 34 C.F.R. § 300.134), and it “requires states to allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities (E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *10 [S.D.N.Y. 2012], citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011], 20 U.S.C. § 1412[a][10][A][i]-[ii], and 34 C.F.R. §§ 300.131–300.133) (internal quotation marks omitted).

States are therefore only “required to provide to children voluntarily enrolled in private schools only those services that can be purchased with a proportionate amount of the federal funds received under the program” (Russman v. Bd. of Educ. of City of Watervliet, 150 F.3d 219, 221 [2d Cir. 1998]). “The more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement” (E.T. and D.T. ex rel. E.T., 2012 WL 5936537, at *11) (internal quotation marks omitted). Equitable participation must include “a services plan that describes the specific special education and related services that the [school district] will provide to the child” (34 C.F.R. § 300.138[b]). In New York, the services plan is known as an IESP, which is created by the CSE for an eligible student who attends a nonpublic school under the State's so-called “dual enrollment” statute (see Education Law § 3602-c [2][b][1]; E.T. and D.T. ex rel. E.T., 2012 WL 5936537, at *11).

Under the provisions of 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 instruction from the nonpublic school where their parents enroll them. The 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 individualized education program [“IEP”]”, and must further “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” (Education Law § 3602-c [2][b][1]) (emphasis supplied).

According to the State Education Department, providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district”, and that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program” (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).

Services provided under an IESP are therefore equitable services, and “[a] nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student” (Ibid.).

If disputes occur between parents and school districts related to IESPs, Education Law § 3602-c provides that “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404]”, which effectuates the due process provisions called for by the IDEA (Education Law § 3602-c [2][b][1]; see also R.G. ex rel. E.G. v. New York City Dept. of Educ., 585 F. Supp. 3d 524, 530 (S.D.N.Y. 2022) [indicating that “the process for challenging an IEP or IESP is the same”]).

Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. 20 U.S.C. §§ 1221e-3, 1415(e)-(f); Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l); see also G.B. ex rel. L.B. v. Bd. of Educ. of Hyde Park Central Sch. Dist., 368 F. Supp. 2d 313, 332 (S.D.N.Y. 2005) [noting that Education Law § 3602-c’s incorporation of the provisions of Education Law § 4404 provides parents who are dissatisfied with a CSE’s recommendation with the right to “an impartial hearing, appointment of an IHO, further administrative review by a State Review Officer, and ultimate appeal to a court”].

It is generally acknowledged that the remedies that are available for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c, are similar to the remedies that are available for a school district’s failure to provide appropriate educational services required under the IDEA. See Kirk v. New York City Dept. of Educ., 2020 N.Y. Misc. LEXIS 10804, at *26-27 (Sup. Ct. New York Cnty. 2020) [acknowledging that compensatory education relief for a denial of FAPE is also available for a failure to provide equitable services under Education Law §3602-c, but denying the relief because the deficiencies in the student’s program had been mitigated in a substantial way]; Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 2d 289, 293 (2010) [agreeing that under Education Law §3602-c “in order for [the] child to receive a free appropriate public education, the services of an individual aide would have to be provided at his nonpublic school”];

Under the IDEA, courts can “grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015]) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir.2002]), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454).

Under the Education Law, school districts have the burden of proof, including the burden of persuasion and burden of production, in due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

Failure to File Timely Request for Equitable Services

Since the DOE did not present a case, present any witness testimony, or place any documents in evidence in this proceeding, the DOE failed to address or sustain its burden under the Education Law, and it therefore failed to demonstrate that it provided the Student with any SETSS and SLT services during the 2021-2022 school year

However, the DOE has raised as an affirmative defense the Parent’s alleged failure to provide the CSE with written notice of her request for equitable services prior to June 1, 2021.

Under Section 3602-c of the Education Law, a request for equitable services “shall be filed with the trustees or board of education of the school district of location on or before the first day of June preceding the school year for which the request is made” (Education Law § 3602-c [2][a]). “The use of the word ‘shall’ in the statutory provision denotes a mandate” (Lawrence Union Free Sch. Dist. v. New York City Dept. of Educ., 2017 N.Y. Misc. LEXIS 781, at *7 [Sup. Ct. New York Cnty. 2017]. Therefore, a request for equitable services under Education Law § 3602-c “is a necessary prerequisite to invoking the statute’s benefits” (Lee-Holowka v. Emma Willard Sch., 2021 WL 3282793, at *5 [Sup. Ct. Rensselaer Cnty. 2021]).

Since the timely filing of a written request for equitable services is a necessary prerequisite to obtaining the services, the DOE’s contention that the Parent failed to file the required written notice with the CSE on or before June 1, 2021, constitutes an affirmative defense to the Parent’s claim that the CSE failed to provide the Student with her SETSS services and her SLT services during the 2021-2022 school year. See Medina v. Catholic Health Initiatives, 2015 WL 13614128, at * 1 (D. Colo. 2015) [indicating that “[a]n affirmative defense is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claims are proven”] [ellipsis omitted]; United States v. $114,700.00 in United States Currency, 2017 WL 8792806, at *1 (D. Colo. 2017) [indicating that affirmative defenses “are generally those which, when a portion of the complaint is agreed to be true, still constitute a defense to the claimed conduct”].

Although Education Law § 3602-c creates a June 1st deadline for a request for equitable services, it does not specify that a school district is precluded from providing equitable services if the June 1st deadline is missed, suggesting that a school district can elect to provide the services regardless of whether a written request was received. However, if a school district asserts the parent’s failure to timely request equitable services under Education Law § 3602-c as an affirmative defense in a due process proceeding, then similar to most affirmative defenses, including a statute of limitations defense, “it is subject to the doctrine of waiver if not raised at the initial administrative hearing” (M.G. and V.M. ex rel. Y.T. v. New York City Dept. of Educ., 15 F. Supp. 3d 296, 304 [S.D.N.Y. 2014]. To preserve the defense and avoid its waiver, the DOE must put parents “on notice that the [defense] is at issue” in order to ensure that they have “a full and fair opportunity to present evidence as to the applicability of the defense” (American Council of the Blind of New York, Inc., v. City of New York, 495 F. Supp. 3d 211, 244 [S.D.N.Y. 2020]) (internal bracket and citation omitted); see also Fallon v. Ashcroft, 2002 U.S. District LEXIS 12202, at *15 (E.D. Pa. 2002) [determining that whether an affirmative defense has been waived “will depend on whether the defense was raised at a pragmatically sufficient time and the plaintiff was prejudiced in the ability to respond”] (internal quotation marks omitted); N.F. ex rel. Flyte v. Antioch Unified Sch. Dist., 2022 WL 1301882, at *1 (9th Cir. 2022) [determining that an issue first raised in a closing brief was not properly raised in the administrative hearing]; J.T. v. District of Columbia, 2023 U.S. Dist. LEXIS 214810, at *23 (D.D.C. 2023) [determining that the parent’s challenge to the timing of the student’s school placement in her closing argument did not properly raise the issue in the administrative hearing].

As already noted, the DOE asserted its affirmative defense in its opening statement at the commencement of the impartial hearing. Parent’s counsel contended that the defense was waived because the assertion was untimely, claiming that raising the defense in its opening statement amounted to litigation by ambush; first, because the DOE never filed a response to the DPC as required by 8 NYCRR § 200.5(i)(4), which would have put the Parent on notice of the defense; and second, because an affirmative defense raised on the first day of hearing did not provide the Parent with a sufficient opportunity to rebut the defense.

The Parent’s contention regarding the DOE’s failure to file a response to the DPC that would have put her on notice of the affirmative defense is without merit, as “nothing in the plain language of the regulation suggests that the response required of the school district pursuant to § 200.5(i)(4) is the appropriate mechanism for the assertion of affirmative defenses. To the contrary, the regulation principally requires the school district to address the circumstances surrounding the adverse action that forms the basis of the due process complaint. The regulation makes no mention of affirmative defenses and certainly does not convey that unasserted defenses will be waived” (R.B. ex rel. A.B. v. Dept. of Educ. of City of New York, 2011 WL 4375694, at *5 [S.D.N.Y. 2011]).

The Parent’s objection to the DOE’s raising the affirmative defense in its opening statement is also without merit, as it did not deny the Parent a fair opportunity to present evidence regarding its applicability, nor did it prevent the Parent from responding to the defense during the hearing. To the contrary, the Parent was able to present evidence at the hearing in response to the DOE’s assertion, as she testified that she spoke to someone at the DOE prior to June 1, 2021, to request services for the Student. Moreover, the DOE did not present any documentary or testimonial evidence to rebut or contradict the Parent’s testimony.

However, the Parent’s testimony at best indicated that although she could not remember the details of the conversation she had with the DOE staff member, she remembered discussing the need to obtain a P-3 form to secure a SETSS provider for the Student. Moreover, the Parent’s testimony indicates that to the extent a request was made, it was communicated verbally and not in writing.

Accordingly, since “[t]he party asserting an affirmative defense usually has the burden of proving it” (Drexel Burnham Lambert Group Inc. v. Galadari, 777 F. 2d 877, 880 [2d Cir. 1985]), the DOE, through its questioning of the Parent, has established that the Parent failed to provide the CSE with written notice of her request for equitable services prior to June 1, 2021.

Failure to Develop an IEP

The determination that the Parent failed to file her request for equitable services with the CSE prior to June 1, 2021, does not end the inquiry, as the Parent also contends that if the CSE did not receive a written request for equitable services prior to June 1, 2021, the CSE should still have held a review meeting to develop an IEP for the Student for the 2021-2022 school year, as it had no notice or knowledge that the Student, a child with a disability, was attending a private school for the 2021-2022 school year.

This claim, however, was not included in the DPC, and it is therefore foreclosed from consideration by this IHO.

As previously noted, the process for challenging an IEP under the IDEA, and the process for challenging an IESP under Education Law Section § 3602-c, are the same.

Under the IDEA, “[t]he party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the [due process complaint], unless the other party agrees otherwise” (20 U.S.C. § 1415[f][3][B]). As the Second Circuit has explained, “parents must file a due process complaint in order to allege deficiencies in an IEP”, and after filing the due process complaint, “the [DOE] has a 30-day resolution period in which to remedy any deficiencies” (C.F. ex rel. R.F., 346 F.3d at 77). Accordingly, “[t]he due process complaint serves as fair notice to the school district, and gives the district 30 days to resolve the complaint to the parents’ satisfaction before a hearing” (B.P. and S.H. ex rel. S.H. v. New York City Dept. of Educ., 634 Fed. App’x 845, 849 [2d Cir. 2015]). Therefore, “parents must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit them to add a new claim after the resolution period has expired would allow them to sandbag the school district” (R.E., 694 F.3d at 187 n. 4).

Consequently, “[t]he scope of the inquiry of the IHO . . . is limited to matters either raised in the [parent’s] impartial hearing request or agreed to by [the school district]” (B.P. and A.P. ex rel. D.P. v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 611 [E.D.N.Y. 2012]); see also D.B. and M.C. ex rel. E.B. v. New York City Dept. of Educ., 966 F. Supp. 2d 315, 328 (S.D.N.Y. 2013) [same]; E.F. and J.F. ex rel. F.F. v. New York City Dept. of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. 2013) [same]; Polanco v. Porter, 2023 WL 2242764, at *5 (S.D.N.Y. 2023) [same]. The limitation on an IHO’s ability to address issues not raised in a DPC extends to requests for relief as well. See M.R. ex rel. S.T. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, at *13 (S.D.N.Y. 2011) [confirming that the parent’s request for compensatory relief could not be considered by the IHO because it had not been included in the DPC].

Although this rule “is not to be mechanically applied, and the IDEA does not require that alleged deficiencies be detailed in any formulaic manner, parents cannot hold back claims until after the expiration of the resolution period” (B.P. and S.H. ex rel. S.H., 634 F. App’x at 849) (internal quotation marks omitted).

Nowhere in the DPC did the Parent allege that the DOE denied the Student a FAPE by failing to hold a review meeting and develop an IEP for the Student for the 2021-2022 school year. Instead, the DPC alleges that the Student was parentally placed in a private school during the 2021-2022 school year; that the DOE failed to implement the Student’s IESP for the 2021-2022 school year; that the DOE failed to implement its own recommendations, and the Parent was unable to locate SETSS and related service providers on her own; that the DOE’s failure to implement the IESP’s recommendations was a denial of FAPE for the 2021-2022 school year; and that the Student was unable to utilize the SETSS and related services which were mandated for her in the IESP, thereby resulting in a denial of the Student’s rights. As relief, the DPC requested a finding that the DOE’s failure to implement the recommendations made in the IESP constituted a denial of FAPE for the 2021-2022 school year. ^[1]

While the DPC included an allegation that the failure to provide a placement was a denial of FAPE, that statement, standing alone and in isolation and with no supporting details, fails to provide the DOE with notice of a claim that the Student was entitled to an IEP program and services, particularly when every other statement and allegation in the DPC related to the DOE’s alleged failure to implement the Student’s IESP, and the relief sought was limited to a finding that the DOE failed to implement the IESP, and an award of compensatory services for that failure. See T.G. ex rel. R.P. v. New York City Dept. of Educ., 973 F. Supp. 2d 320, 337 (S.D.N.Y. 2013) [indicating that “’[t]he due process complaint must list the alleged deficiencies with enough specificity so that the Department is able to understand the problems and attempt to remedy them”]; N.K. ex rel. J.D. v. New York City Dept. of Educ., 2016 WL 590234, at *5 (S.D.N.Y. 2016) [noting that New York’s regulations require a DPC to include a description of the nature of the problem, “including facts relating to such problem”; that reading a complaint over-broadly “hinders the district’s ability to prepare for a hearing and may expand the district’s burden of proof improperly”; and that “the issues at the hearing are generally confined to the ‘problem’ raised in the complaint”]. Here, the problem raised in the complaint is the DOE’s alleged failure to provide the Student with the SETSS and SLT services recommended in the IESP, and not the DOE’s alleged failure to develop an IEP for the Student for the 2021-2022 school year.

There is also nothing in the hearing record to indicate that the DOE agreed to an expansion of the issues in this proceeding to include a claim for a denial of FAPE based on the DOE’s failure to hold a review meeting and develop an IEP for the Student for the 2021-2022 school year.

Accordingly, the waiver rule applies, and this claim is forfeited.

However, even if the issue was not foreclosed from review, the CSE was not obligated to develop an IEP for the Student for the 2021-2022 school year.

Although a school district is generally required to have an IEP in place at the beginning of the school year, “if a student is enrolled at a private school because of the parent’s unilateral decision, the school district does not maintain an obligation to provide an IEP” (D.P. v. Council Rock Sch. Dist., 482 Fed. App’x 669, 672 [3rd Cir. 2012]); A.B. ex rel. K.G. v. Abington Sch. Dist., 440 F. Supp. 3d 428, 434 (E.D. Pa. 2020) [same]; M.C. ex rel. Conyers v. Sch. Dist. of Philadelphia, 2020 WL 4903790, at *7 (E.D. Pa. 2020) [same]; see also Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 1138 (9th Cir. 2021) [holding that “when a child has been enrolled in private school by her parents, the district only needs to prepare an IEP if the parents ask for one”]; I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 772 (M.D. Pa.

2012) [indicating that “the IDEA does not require the school district of residence to provide a FAPE to an unenrolled student residing in the district”].

As explained by the 9th Circuit, the IDEA distinguishes between a school district’s obligations to students enrolled in private schools by the school district, and students unilaterally enrolled in private schools by their parents. Section 1412 (a)(10) of the Act, which “governs the provision of services for children in private school”, has 2 relevant subparts: the first, Section 1412(a)(10)(A), provides that students unilaterally enrolled in private schools by their parents are entitled to special education and related services in accordance with the numerated requirements that follow, none of which require that “such children [] be given IEPs”; and the second, Section 1412(a)(10)(B), “requires IEPs” for students who are privately placed by a school district, as it provides that students enrolled in private schools by a school district are entitled to special education and related services “in accordance with an [IEP]” (Capistrano Unified Sch. Dist., 21 F.4th at 1138; 20 U.S.C. § 1412[a][10][B][i]).

The 3rd Circuit’s reasoning is consistent with that of the 9th Circuit, and it has noted that the applicable federal regulations make the same distinction, comparing the requirement in 34 C.F.R. § 300.146, that a school district “must provide a student enrolled by a public agency at a private school with special education and related services [] in conformance with an IEP”, with the statement in 34 C.F.R. § 300.137, that “No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school”(D.P. v. Council Rock, 482 Fed. App’x at 672-73); see also Aman v. Stow Sch. System, 982 F. 2d 644, 651 (1st Cir. 1992) [indicating that “federal regulations promulgated under the IDEA also say that public officials need develop and implement an IEP for a child in private school only if the child was placed in or referred to the private school or facility by a public agency”] [internal brackets and quotation marks omitted] [emphasis in original].

There is nothing in the hearing record to indicate, let alone suggest, that the Parent asked the CSE to evaluate the Student, or to provide the Student with an IEP, for the 2021-2022 school year. The contention by Parent’s counsel that the DOE had no knowledge that the Student was placed in a private school for the 2021-2022 school year, and was therefore entitled to an IEP, is belied by the Parent’s own testimony, in which she indicated that she spoke to someone at the DOE prior to June 1, 2021, to discuss her need for a P-3 form to secure a SETSS provider for the Student. The Parent would only have requested a P-3 form from the CSE if she were placing the Student at a private school for the 2021-2022 school year, and the Student required equitable services.

Accordingly, the DOE was not obligated to develop an IEP for the Student for the 2021-2022 school year.

ORDER

IT IS HEREBY, ORDERED, that the Parent’s request for relief in the form of compensatory education services, consisting of SETSS services and SLT services to which the Student was allegedly entitled during the 2021-2022 school year, is DENIED for the reasons set forth herein.

Dated: December 18, 2023 Richard A. Liese

RICHARD A. LIESE

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DOE EXHIBITS

None

PARENT EXHIBITS

A. Due Process Complaint, 08/08/23, 4 pp.

B. IESP, 02/28/18, 10 pp.

C. Affidavit of Parent, 08/23/23, 2 pp.

IHO EXHIBITS

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.

Footnotes

[1] Although the DPC framed the Parent’s claim for relief around an alleged denial of FAPE, it is a mischaracterization, as the allegation is in reality and substance a claim relating to the DOE’s alleged denial of equitable services under Education Law § 3602-c, and not a claim alleging a denial of FAPE under the IDEA.