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FINDINGS OF FACT AND DECISION
Case Number: 159633
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: March 28, 2016
Actual Record Closed Date: April 6, 2016
Hearing Officer: Dora Lassinger, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2016
Mother (Via Telephone) — Student
District Representative — DOE
Ms. , the mother of , filed a request for an impartial hearing on October 13, 2015, requesting that her son be provided (“ ”)
, as opposed to , the agency designated by the Department of Education. (“DOE”). I was designated to hear this matter on January 25, 2015, after the prior hearing officer recused.
A pre-hearing telephone conference was held on February 25, 2016. An impartial hearing was held on March 28, 2016. At the request of the school district, the compliance date was extended to April 27, 2016 to allow me to obtain the transcript and render a decision. (IHO Ex. I).
Evidence at Hearing
is a boy with a classification of .
His classification is not in dispute. (DOE Ex. 1; Tr. p. 14). He is a student at
. (Tr. p. 16).
has an Individualized Education Services Plan (“IESP”) recommending related services of of . The parent agrees that this is an appropriate recommendation for him. (Tr. p. 15). , the DOE representative, testified that , the agency contracted by the DOE to provide the , had providers available to , and this fact was not disputed by the parent. (Tr. pp. 17-18).
The parties stipulated that will not allow the providers to . (Tr. pp. 16, 35).
offered the parent the option of
; however the mother stated that she did not wish to ; and requested that the . stated that it could not provide the service at . (DOE Ex. 3; Tr. p. 19). DOE records indicate that the parent asked to release the case, so that she could secure the services of a different provider, who would . (DOE Ex. 3).
Ms. testified that has received services in the past and benefited from the services. He still has , and has , for which he continues to require . (Tr. pp. 22-23). He has not received the services at all during the current school year because of Case No. 159633
. (Tr. pp. 27-30; 36). She testified that
. (Tr. pp. 28, 33-
34). She testified that she has . (Tr. p. 30). She
. The
. (Tr. p. 32). The . (Tr. p. 30).
The DOE argues that the private school’s refusal to allow its contracted provider to come into the school building should not require the DOE to issue an RSA for an independent provider. (Tr. p. 37).
Findings of Fact, Conclusions of Law and Order
Education Law § 3602c[2][b][1] provides as follows:
“…The committee on special education shall 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...”
The statute does not mandate the location where services are to be provided to a student. Application of the School District, 09-115.
A guidance memorandum from the State Education Department, dated September 2007, titled “Chapter 378 of the Laws of 2007- 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” (hereinafter referred to as “the
Memorandum”) explains school district responsibilities under 3602-c of the Education Law. According to the Memorandum, “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”.
The statute was designed to increase benefits afforded to handicapped children in Case No. 159633 private schools. Board of Education v. Wieder, 72 N.Y. 2d 174, 184 (1988). The Court of Appeals concluded that placement of children in programs should be guided generally by their individual educational needs. Application of the Board of Education of the Bay Shore Union Free School District, Appeal No. 04-79, (citing Board of Education v.
Wieder, at 187-188). The legislative history indicates that the statute was not intended as an economy or efficiency measure; and that concern was expressed that the benefits added by the law would be costly. Board of Education v. Wieder, supra , at 185.
In the circumstances of this case, I find that ’s individual needs require that be provided to him, . The private school which he attends will not permit the to come into the school, and ’s long school day prevents him contracted by the DOE. While the parent’s choice of a private school which will not allow the DOE contracted provider to come into the school imposes an added burden upon the school district; the statute’s legislative history indicates that the intent was for the service to be provided to the student, based upon his individual needs, and in spite of the added cost or burden of providing services to the student who attends a private school.
For all of the foregoing reasons, it is hereby ordered that the DOE shall immediately provide ’s , in the amount recommended in his IESP; or issue a Related Services Authorization, authorizing the parent to secure an privately.
Dated: April 8, 2016
Dora Lassinger
DORA LASSINGER, ESQ.
Impartial Hearing Officer DL:
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION
1 Parent’s hearing request, 10/13/16, 2pp
2 E-mail from , 2/10/16, 1pp
IHO
I Case Follow-Up Sheet, 3/28/16, 1pp