New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 263758

Student’s Name: REDACTED

District of Private

School Location: NYC Dept. of Ed., District # REDACTED

Impartial Hearing Officer: Keegan K. Staker, Esq.

Date of Filing: October 11, 2023

Hearing Requested by: Parent

Date of Hearing: December 21, 2023

Record Close Date: December 21, 2023

Date of Decision: December 21, 2023

I. JURISDICTION

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. BACKGROUND AND DUE PROCESS COMPLAINT

The Parent, through their advocate, filed a Due Process Complaint(“DPC”) on or about October 11, 2023. Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the ten month 2023-2024 school year.^[1] Parent seeks funding for ten hours of Special Education Teacher Support Services (“SETSS”) currently being provided by Agency.

Parent also seeks an award of a bank compensatory education for non-implemented services consisting of:

1. Counseling, 1 time per week, 30-minute session.

III. PROCEDURAL HISTORY AND HEARING

I was appointed on October 13, 2023. On December 21, 2023, both parties appeared virtually for a hearing. DOE did not seek to introduce any exhibits. Parent provided seven exhibits prior to the hearing, and they were admitted into evidence without objection. The DOE did not seek to introduce witness testimony and rested. Parent introduced one affidavit^[2] in lieu of direct testimony, and the witness were made available for cross-examination, or the parties stipulated to the facts that would have been elicited on cross-examination.^[3]

In light of the foregoing and as more fully discussed below, I find that Parent failed to request services from the DOE before the first day of June preceding the school year as required by Educ. Law § 3602-c[2]. As such, Student is not entitled to services from the 2023-2024 school year, and this inquiry is at an end.

IV. FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2023-2024 school year. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. It is uncontested that the Student’s last IESP was developed for Student on February 16, 2023, with an implementation date of September 6, 2022.

June 1^st Notice

Under 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.^[4] This notice is required for each year that services are requested, not simply the year of the initial request.^[5] The hearing record must contain evidence of compliance with this requirement for the Student to be entitled to services,^[6] unless it is clear and unmistakable that the DOE waived the June 1 deadline.^[7] This deadline may be raised as an affirmative defense during the Due Process Hearing.^[8]

In this case, DOE representative asserted the June 1 affirmative defense in his opening statement, which I find to be timely. In response, Parent does not allege that a request for services was sent. Instead, Parent argues that such notice is not required because the IESP was developed on February 16, 2023, and is in effect for a year. I reject this argument. The purpose of the June 1 notice requirement is to notify the district of the Student’s continuing need for services for the upcoming school year. The requirement is not obviated, nor is it waived, by the fact that an IESP was developed the school year before.

Thus, as it is undisputed that Parent did not request services prior to June 1 of the school year in question, and the DOE did not waive this requirement, explicitly or implicitly, the Student is not entitled to services for the 2023-2024 school year.

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.^[9] 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.^[10] Pendency is appropriate in 3602-c cases.^[11] Here, parent seeks a pendency order based on the last agreed upon IESP dated February 16, 2023.^[12] The district offered no objection to Parent’s request for a pendency Order and thus it is granted. Thus, to the extent that services were contracted for by Parent on behalf of Student during the pendency of this matter, such services shall be paid at a reasonable market rate.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Student is entitled to services during the pendency of this proceeding as provided for the in the IESP dated 2/16/2023. Services provided by Agency during the pendency of this proceeding shall be funded by the DOE at the contracted rate of $200.

(2) Parent’s request for reimbursement or direct funding for services and/or a bank of compensatory education for the ten month 2023-2024 school year is DENIED, as parent did not request services prior to June 1, 2023, as required by statute.

Dated: December 21, 2023

_____________________

Keegan K. Staker, 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	DPC	10/11/2023	1
B	Pendency Request	10/11/2023	2
C	Confidentiality Release	9/19/2023	1
D	IESP	2/16/2023	13
E	Provider Resume	undated	1
F	Provider Certification	2/1/2011, 9/1/2013, 9/1/2003, 9/1/1998	4
G	Affidavit of Agency Administrative Assistant	12/13/2023	1
H
I
J
K
L
M

IHO EXHIBITS

Exhibit	Title	Date	Pages
	none

APPENDIX

Redacted Information	Term Used In FOFD
REDACTED	Student
REDACTED	Parent Representative
REDACTED	DOE Attorney/Representative
REDACTED	Agency
REDACTED	Agency Administrative Assistant

Footnotes

[1] Exhibit A.

[2] Affidavits may refer to unsworn or unnotarized statements that were then sworn or affirmed to on the record.

[3] See transcript.

[4] Educ. Law § 3602-c[2].

[5] SRO 23-162.

[6] Id.

[7] See SRO 18-088.

[8] See SRO 23-162.

[9] 20 U.S.C. § 14159(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, 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. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.

[10] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).

[11] See SRO 23-065.

[12] Exhibit A; see IESP, Exhibit.