The State Education Department
State Review Officer
Application of a CHILD WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of Buffalo
Sean M. Ryan, Esq., attorney for petitioner
Hon. Michael B. Risman, Corporation Counsel, attorney for respondent, Denise M. Malican, Esq., of counsel
Petitioners appeal from an impartial hearing officerís decision holding that they lacked standing to seek an order under the Individuals with Disabilities Education Act (IDEA) requiring the Board of Education to provide special education services to their son at the site of the private school in which they enrolled him. The hearing officer also held that he lacked jurisdiction to make such an order pursuant to the provisions of Section 3602-c of the New York State Education Law (Sec. 3602-c).
Prior to dismissing the proceeding, the hearing officer had determined in an interim order that the provisions of 20 U.S.C. ß 1415(j) and Section 4404(4) of the New York State Education Law compelled the Board of Education to continue providing special education to petitionersí son at his private school during the pendency of this proceeding. Petitioners seek an order requiring respondent to comply with the hearing officer's interim order during the continuing pendency of this proceeding. The Board of Education cross-appeals, asserting that since the hearing officer did not have jurisdiction to determine petitionersí claim, he should not have issued an interim order with regard to the childís pendency placement. The appeal must be sustained. The cross-appeal must be dismissed.
When the hearing was held in November 2001, petitioners' son was eight years old and was enrolled in the third grade at the Martin Luther Christian School (Martin Luther) in Amherst, New York. He has been classified as learning disabled by respondentís Committee on Special Education (CSE). His classification is not in dispute in this proceeding. The child began attending Martin Luther during the 1999-2000 school year, when he was in first grade (Exhibit A). During first and second grades, the student received occupational therapy, speech therapy, and both direct and indirect consultant teacher services. Respondent contracted with the Erie 1 Board of Cooperative Educational Services (BOCES) to provide those services to the student at Martin Luther during the 1999-2000 and 2000-2001 school years.
On May 7, 2001, the CSE prepared the child's individualized education program (IEP) for the 2001-02 school year. The CSE recommended that the child be placed in a regular education class with 60 minutes of direct consultant teacher services six times per six day cycle, 30 minutes of indirect consultant teacher services once per six day cycle, and 30 minutes of group speech therapy twice per week. It also recommended that that the child be evaluated to determine if he needed to use an FM trainer in class (Exhibit D). At the meeting, the childís mother asked the CSE to recommend that her sonís special education services be provided to him at his private school. However, neither the handwritten version of the IEP (Exhibit 3) nor the subsequent typewritten version (Exhibit 4) specified a location for the recommended services.
In a letter dated May 10, 2001, petitioners requested that respondent continue to provide special education services pursuant to Sec. 3602-c to their son during the 2001-2002 school year (Exhibit A). On August 29, 2001, petitionersí attorney requested an impartial hearing pursuant to the IDEA, Section 504 of the Rehabilitation Act [of 1973] (Sec. 504) and 8 NYCRR 200.5 [Section 200.5 of the Regulations of the Commissioner of Education]. In his letter requesting the hearing, petitionersí attorney asserted that the school district failed to provide a free appropriate public education (FAPE) to the child because the childís IEP did not identify the location where his direct and indirect consultant teacher services and speech therapy would be provided (Exhibit 1). The attorney also challenged the IEP on the ground that it did not specify that the child would be provided with an FM trainer, despite including an annual goal indicating that he would use such a device on a daily basis. He also asserted that the Board of Education was obligated to continue providing services to the child at his private school during the pendency of the due process proceeding.
In a letter to petitionersí attorney dated September 5, 2001, respondentís attorney inquired whether petitioners intended to request a hearing pursuant to Section 4404 of the New York State Education Law (Sec. 4404). Petitionersí attorney responded in a letter dated September 7, 2001 that it was his intention to request a hearing pursuant to the IDEA, Sec. 504 and 8 NYCRR 200.5, and that 8 NYCRR 200.5 had been promulgated pursuant to Sec. 4404. On September 12, 2001, petitionersí attorney reiterated his request that respondent continue providing services at the childís private school during the pendency of this proceeding. The hearing was adjourned on consent, and ultimately scheduled for November 9, 2001.
By Notice of Motion dated November 1, 2001, respondent moved to dismiss the due process proceeding on the grounds that petitioners lacked standing to pursue their claims, that their request for a hearing failed to state a cause of action under federal or state law, and that they had failed to adequately notify respondent as to their claim. Respondentís attorney asserted in her supporting affidavit that the IDEA, Sec. 504, and 8 NYCRR 200.5 did not grant "procedural rights" to a student voluntarily enrolled in a private school. She also noted that petitioners had not requested a hearing pursuant to Sec. 3602-c. The attorney further asserted that respondent had no obligation to comply with the pendency provisions of federal and state law because the child had been voluntarily enrolled in a private school.
At the beginning of the hearing, petitioners asked the hearing officer to order the Board of Education to provide special education services to their child at Martin Luther (Transcript pp. 33-34). The hearing officer reserved decision on respondent's motion to dismiss and petitionersí request for an order to provide pendency services. Respondent asserted that it had not received petitionersí list of proposed witnesses and documents to be introduced at the hearing until four days before the hearing. Its attorney requested that each of the six witnesses on the list be barred from testifying because it had been prejudiced by petitionersí failure to comply with the regulatory requirement that evidence be disclosed at least five days in advance of a hearing (34 C.F.R. ß 300.509[a]; 8 NYCRR 200.5[i]). The hearing officer denied respondentís request, while indicating that he would give respondent additional time to prepare for the cross-examination of the witnesses, if requested (Transcript p. 45). Only one of the six persons on petitionersí list testified.
On November 12, 2001, the hearing officer issued an interim decision regarding petitionersí request for a pendency determination. He noted that under federal and state law, a child must remain in his or her current educational placement, unless the child's parent and the state or local educational agency agree to a different placement, as soon as the childís parents request an impartial hearing. Noting that pendency was like an automatic injunction, the hearing officer held that he was required to determine the childís pendency placement prior to ruling upon the Board of Educationís motion to dismiss the proceeding. He found that the childís last agreed upon placement was set forth in the IEP created for the 2000-01 school year, pursuant to which the child had received direct and indirect consultant teacher services and related services of occupational therapy and speech therapy while in a regular education setting. The hearing officer rejected respondentís contention that the childís consultant teacher service could be provided in a regular education class in the public school, rather than in the school that the student actually attended, finding that it was inconsistent with the definition of consultant teacher services (8 NYCRR 200.1[m]). He ordered the Board of Education to provide the studentís direct and indirect consultant teacher services at Martin Luther until the conclusion of the administrative proceeding, while allowing it to choose the location for the childís related services.
On November 14, 2001, two days after his interim decision with regard to pendency, the hearing officer issued a decision on respondentís motion to dismiss the proceeding. Noting that petitioners did not have sufficient time to conclude their case on November 9 and had requested an additional hearing date, the hearing officer nevertheless found that he had sufficient information to determine respondentís motion. He held that petitioners had no standing to pursue their claim to special education services through an impartial hearing. The hearing officer relied upon the provisions of 34 C.F.R. ß 300.354(a)(1) which state that: "No 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." He also found that respondent had complied with the requirements of 34 C.F.R. ßß 300.354(b) and (c) relating to the process by which a school district must determine, in consultation with representatives of private schools, how IDEA funds will be spent for the benefit of students of such schools, and the creation of service plans for the students receiving services.
The hearing officer also considered petitionersí contention that their child was entitled to special education services pursuant to the provisions of New Yorkís "dual enrollment" statute, Sec. 3602-c. That statute requires boards of education to furnish certain services, including special education, to children who reside in their school districts but attend private schools, upon their parentsí request for those services. As noted above, petitioners made such a request on May 10, 2001. The hearing officer held that the Commissioner of Education has exclusive jurisdiction to determine disputes relating to a board of educationís failure to provide services pursuant to Sec. 3602-c.
The hearing officer also found that parents are required to specify the section of the law under which they seek a proceeding, and that Sec. 3602-c provided that students enrolled in private schools could only be provided special education services in regular education classes of the public school and could not be provided such services separately from students attending public schools. Finally, the hearing officer determined that the child had no individual right to special education services under Sec. 504. The hearing officer granted respondentís motion to dismiss.
Petitioners commenced this appeal on November 29, 2001. Their attorney requested that services be provided to their child during the pendency of the appeal (Exhibit A, Attorneyís Affidavit). In a letter to petitionersí attorney dated November 30, 2001, respondentís attorney indicated that respondent would not implement the hearing officerís interim order regarding pendency because the hearing officer had thereafter dismissed the proceeding for lack of subject matter jurisdiction (Exhibit B, Attorneyís Affidavit). Petitioners assert that respondent should be required to implement the hearing officer's interim order during the pendency of this appeal. Respondent asserts that the hearing officerís interim order was void ab initio because he lacked subject matter jurisdiction and it is therefore not binding upon any party. Respondent also asserts that I have no jurisdiction to consider this appeal.
I will address respondentís latter contention first. Respondent does not dispute that petitionersí son is a child with a disability within the meaning of Section 4401 of the New York State Education Law. In New York, disputes between the parents of a child with a disability and a board of education about what services the boardís CSE has recommended for the child are resolved in what may be a three-step process consisting of an impartial hearing, an appeal to the State Review Officer, and review by a court (Sections 4404- of the New York State Education Law). Pursuant to Sec. 4404(2), the State Review Officer shall review "Ö any determination of the impartial hearing officer relating to the determination of the nature of a childís handicapping condition, selection of an appropriate special education program or service and the failure to provide such programÖ". Even if I were to find that the relief a parent sought was beyond my power to provide, it does not follow that I lack jurisdiction to consider the parentís appeal. I find that respondentís argument regarding my jurisdiction to hear this appeal is without merit.
I now turn to the issue of respondentís obligation to comply with the hearing officerís interim order regarding the childís pendency placement. Sec. 4404(4)(a) provides, in relevant part, that:
During the pendency of any proceedings conducted pursuant to this sectionÖunless the local school district and the parents or persons in parental relationship otherwise agree, the student shall remain in the then current educational placement of such studentÖuntil all such proceedings have been completed.
The pendency provisions of federal and state law are not dependent upon a showing of likelihood of success on the merits or a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]). The merits of petitionersí claims and respondentís counterclaims have not as yet been determined in this proceeding, and conceivably may not be resolved until a court of competent jurisdiction decides the matter. I find that the hearing officer had jurisdiction to issue an interim order with regard to pendency, and that the parties are bound by that order unless it is annulled at some later stage in these proceeding, or until a final determination is made regarding the underlying dispute between the parties.
Respondent also contends that even if the hearing officer did have jurisdiction to issue an interim order, he erred in finding that the childís pendency placement included consultant teacher services at the site of the childís private school. I have reviewed the hearing officerís rationale for his interim order, and I concur with his conclusions. The term "current educational placement" refers only to the general type of educational program in which a child is placed, rather than a specific location (Concerned Parents and Citizens for the Continuing Education at Malcolm X P.S. 79 v. New York City Board of Education, 629 F. 2d 751 [2d Cir. 1980]). State regulations define consultant teacher services as follows:
Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a student with a disability who attends regular education classes and/or to such studentís regular education teachers.
(1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher pursuant to subdivision (yy) of this section, to a student with a disability to aid such student to benefit from the studentís regular education classes.
(2) Indirect consultant teacher services means consultation provided by a certified special education teacher pursuant to subdivision (yy) of this section to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes.
(8 NYCRR 200.1[m]).
I agree with respondent that location is generally not an intrinsic aspect of a studentís program. However, direct consultant teacher services are provided to a student in his or her regular education class or classes so that he or she can derive educational benefit from the class or classes. Similarly, indirect consultant teacher services are provided to the studentís regular education teacher or teachers so that the teacher or teachers can better meet the studentís needs in regular education classes. This childís regular education classroom is at Martin Luther. The CSE recommended that consultant teacher services be provided to petitionersí son during the 2000-01 school year, and respondent in fact provided those services to him at Martin Luther, although it may not have been legally obligated to do so. Under the circumstances, I must conclude, as did the hearing officer, that the childís pendency placement includes direct and indirect consultant teacher services at Martin Luther. Since there has been no final determination on the underlying dispute, I find that respondent must continue to provide consultant teacher services to petitionersí son at Martin Luther during the pendency of this proceeding.
Location is not an intrinsic aspect of occupational therapy or speech therapy. Students can derive educational benefit from both therapies outside of the school they regularly attend. I agree with the hearing officer that the school district may choose the location where the therapies will be provided during the pendency of this proceeding.
Having disposed of the preliminary matters, I will now consider petitionersí appeal from the hearing officerís final decision dismissing their hearing request on jurisdictional grounds. They seek a determination that they have a right to an impartial hearing under the IDEA, and an order remanding the matter back to the hearing officer for a hearing. Petitioners contend that children who are voluntarily enrolled by their parents in private schools have some substantive rights under the IDEA, notwithstanding the provisions of 34 C.F.R. ß 300.454(a)(1), which read as follows:
No 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.
Respondent asserts that not only does petitionersí son have no individual right to receive services, he also has no right to invoke the IDEA due process provisions, including the right to an impartial hearing. Respondent relies upon the provisions of 34 C.F.R. ß 300.457, which read as follows:
The procedures in Secs. 300.504-300.515 [including due process hearings] do not apply to complaints that an LEA [board of education] has failed to meet the requirements of Secs. 300.452-300.462, including the provision of services indicated on the childís services plan.
The procedures in Secs. 300.504-300.515 do apply to complaints that an LEA has failed to meet the requirements of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
Complaints that an SEA or LEA has failed to meet the requirements of Secs. 300.451-300.462 may be filed under the procedures in Secs. 300.660-300.662
A board of education must offer to provide a FAPE to each child with a disability who resides in the school district. The board of educationís alleged failure to offer a FAPE may be challenged in a proceeding brought pursuant to the IDEAís due process provisions. However, parents who choose to enroll their child in a private school may not use the IDEA due process provisions to compel a board of education to provide special education to the child at the private school because the child has no individual entitlement to services under the amended IDEA. They do, however, have the right to challenge the school districtís actions taken pursuant to 34 C.F.R. ß 300.451 to locate, identify and evaluate all private school children with disabilities residing within the school district, also known as "child find" activities. The evaluations that are performed for child find purposes must meet the standards for other evaluations under the IDEA that are set forth in 34 C.F.R. ßß 300.530-300.662.
Petitioners assert that the testimony taken during the hearing indicated that there was a dispute between the parties involving the Board of Educationís alleged failure to completely evaluate their son in all areas of suspected disability. They allude to the CSE chairpersonís testimony about their sonís possible use of an FM trainer in the classroom. The chairperson testified that although there appeared to be a consensus at the May 7, 2001 CSE meeting that petitionersí son should have the use of such a device, she insisted that he be evaluated to determine if the CSE should include the device on the childís IEP as assistive technology (Transcript pp. 147-148). I cannot conclude from this brief reference to an evaluation with respect to the need for an FM trainer that there was in fact any genuine dispute about the adequacy of respondentís evaluation of the student for purposes of IDEAís child find provisions. Accordingly, I must agree with the hearing officer that petitioners did not state a claim under the IDEA for which an IDEA hearing was mandated.
Petitioners also challenge the hearing officerís dismissal of their hearing request because they failed to specifically request that the hearing be held pursuant to Sec. 3602-c, and his determination that the Commissioner of Education has exclusive jurisdiction to determine claims asserted under that statute. The statute provides that parental requests for services for children with disabilities shall be reviewed by each school districtís CSE pursuant to Section 4402 of the New York State Education. It also provides that:
Review of the recommendation of the committee on special education may be obtained by the parent, guardian or persons legally having custody of the pupil pursuant to the provisions of section forty-four hundred four of this chapter. Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for the provision of services pursuant to this section. The failure or refusal of a board of education to provide such services in accordance with a proper request shall be reviewable only by the commissioner upon an appeal brought pursuant to the provisions of section three hundred ten of this chapter.
I agree with petitioners that the Commissioner of Education does not have exclusive jurisdiction over all claims asserted pursuant to Sec. 3602-c. There are various public school services available to children in private schools pursuant to subdivision 1(a) of the statute. When the requested services are special education or related services, the requests are to be reviewed first by the CSE. Disagreements about the CSEís recommendations with respect to such requests are to be resolved pursuant to Sec. 4404, which provide for an impartial hearing at the local level, followed by an appeal to the State Review Officer, and judicial review, if necessary. Indeed, the Commissioner has so held (Application of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 448).
I have reviewed a recent Commissionerís decision cited by the hearing officer, Application of a Student with a Disability, 41 Ed Dept Rep ______, Decision No. 14630, dated August 23, 2001. In that decision, the Commissioner indicated that a request for services under Sec. 3602-c was subject to the due process provisions of Sec. 4404, and that the language of Sec. 3602-c(2) conferring jurisdiction upon the Commissioner related to disputes involving a board of educationís refusal to contract with another board of education to provide services to a student who resides in one district but attends private school in another district.
The Commissionerís decision in that appeal was also cited by the hearing officer for the proposition that a parent requesting a hearing under Sec. 3602-c must explicitly refer to that statute in his request. I disagree with the hearing officerís interpretation of the case. In that case, the parent had requested a hearing under the IDEA, Sec. 504, and the Americans with Disabilities Act, but had raised Sec. 3602-c in her appeal to the Commissioner. The Commissioner dismissed the appeal as premature, noting that the board of education had agreed to consider the parentsí request for services under Sec. 3602-c. I note that neither federal nor state regulations require parties to cite the specific section of the law under which they are requesting a hearing. In this instance, respondent was aware that petitioners had requested a continuation of services to their child under Sec. 3602-c in May 2001 for the ensuing school year (Exhibit A). Indeed, its attorney queried petitionersí attorney about whether they were asserting a claim pursuant to Sec. 3602-c, which as noted above provides for a hearing under Sec. 4404. I find that petitionersí request for an impartial hearing was adequate, and that petitionersí failure to specifically refer to Sec. 3602-c in their request for an impartial hearing does not warrant dismissal of their claim.
The hearing officer found that, pursuant to Sec. 3602-c, students enrolled in private schools must be provided special education services in regular education classes of the public school and cannot be provided such services separately from students attending public schools. I note that the New York State Court of Appeals has determined this issue, and held that Sec. 3602-c does not compel local boards of education to provide services to disabled students only in regular public school classes. The Court held that the statute does not limit the authority of local boards of education to provide appropriate educational placements in accordance with the needs of each student (Bd. of Educ. v. Wieder, 72 N.Y.2d 174, 531 N.Y.S.2d 889 ). School districts are clearly not prohibited from providing special education at a private school.
The final issue I must address is respondent's objection to petitionersí presentation of a witness whose name was not disclosed five days before the hearing. Each party has the right to prohibit the introduction of any evidence the substance of which has not been disclosed to the opposing party at least five business days before the hearing (8 NYCRR 200.5[i][ix]). I find that the issue is moot because I have sustained petitionersí appeal of the hearing officerís dismissal of the case. The hearing must continue, and respondent should have the opportunity to cross-examine the witness again, if necessary.
THE APPEAL IS SUSTAINED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the hearing officerís interim decision ordering that, during the pendency of the due process procedure the school district must provide consultant teacher services at Martin Luther and must provide occupational therapy and speech therapy at a location of its choosing, is affirmed.
IT IS FURTHER ORDERED that the hearing officerís decision to grant respondentís motion to dismiss is annulled;
IT IS FURTHER ORDERED that the impartial hearing shall continue in accordance with the tenor of this decision.
Albany, New York
March 7, 2002