02-035

         Petitioners appeal from an impartial hearing officer's (IHO) decision which found that the resource room services provided to their son were appropriately provided at the East Islip Senior High School and which denied petitioners' request that the services be provided on site at the nonpublic school attended by their son. The appeal must be sustained in part.

        At the time of the hearing, petitioners' son was 16 years old and attending tenth grade at St. John the Baptist Diocesan High School (St. John's), a nonpublic school located in the West Islip Union Free School District (West Islip) (Exhibits GG, 3). Petitioners and their son are residents of East Islip Union Free School District (East Islip) (Exhibit 4). The issue raised in this appeal is whether the IHO erred in determining that East Islip properly provided special education services within East Islip to petitioners' son.

        Petitioners enrolled their son in ninth grade at St. John's for the 2000-01 school year and so notified the East Islip Committee on Special Education (CSE) (Transcript pp. 288-90). Prior to his entry into high school, the CSE developed an individualized education program (IEP) for the student which identified his individual needs in reading, math, and language arts, and set goals for him in such areas as study skills, essay writing, and timely completion of assignments (Exhibit A). The IEP also had certain testing modifications, including extended time, reading aloud of test questions, and a flexible test setting (Exhibit A). The IEP recommended that the student receive 40 minutes per day of resource room, five times per week at East Islip Senior High School (Exhibit A). Petitioners agreed with the program, but requested that the district contract with West Islip to provide the resource room services at St. John's (Transcript pp. 299-300). The CSE rejected that request (Transcript pp. 300, 305).

        On January 24, 2001, petitioners requested a hearing under the Individuals with Disabilities Education Act (IDEA) to review the CSE determination; however, East Islip denied the hearing request on procedural grounds. Petitioner appealed the denial of the hearing request to the Commissioner of Education in March 2001.

        During the 2000-01 school year, the student attended first period at the East Islip Senior High School for his resource room services, after which the district transported the student to St. John's for the remainder of his school day (Transcript pp. 305, 308, 314). On July 13, 2001, the CSE met to discuss the student's IEP for the 2001-02 school year (Transcript p. 327). This IEP, like the prior IEP, recommended that petitioners' son receive 40 minutes per day of resource room services at East Islip Senior High School five days per week (Exhibit 3). The IEP allowed the following testing modifications: up to twice the allotted class time to complete tests, starting tests in class and completing them in a small group in a separate location, administering tests in a room with minimal distractions, and verbal rephrasing of test directions and questions (Exhibit 3). The IEP also included goals in language arts, math, and study skills (Exhibit 3). Once again, petitioners did not object to the recommended services, but requested that the district contract with West Islip to provide their son with the resource room services on site at St. John's (Transcript p. 328). They asserted that too much resource room time was being spent on test taking at East Islip, and that traveling between schools was bad for his social and emotional well being (Transcript pp. 317, 307-08). Once again the CSE rejected the request to contract with West Islip (Exhibit 3; Transcript pp. 328-30).

        On August 23, 2001, the Commissioner of Education issued his decision pertaining to petitioners' March 2001 appeal. The Commissioner dismissed the appeal primarily because respondent was prepared to consider petitioners' request for a hearing, as required by statute, under Education Law § 3602-c (Application of a Student with a Disability, 41 Ed Dept Rep ___, Decision No. 14630 [August 23, 2001] [same case]). In his decision, the Commissioner stated:

The record before me does not reflect [such] a dispute between the school district of residence and the school district of location regarding the provision of services. Rather, petitioners' dispute with respondent, the school district in which she resides, involves a challenge to the IEP and should be resolved by recourse to an impartial hearing and review by the state review officer under Education Law §§ 3602-c and 4404 (Id.).

I concur with the Commissioner's statement.

        By letter dated September 13, 2001, petitioners requested an impartial hearing, challenging respondent's refusal to provide resource room services at the student's private school and requesting that respondent be required to contract with West Islip for such services (Exhibit 4). The hearing was held on January 14 and 15, 2002. On February 26, 2002, the hearing officer rendered his opinion determining that the services as offered to the student at East Islip Senior High School were appropriate and that the district was not obligated to provide the services at the site of the nonpublic school.

        Petitioners contend that Education Law § 3602-c(2) requires East Islip to contract with West Islip to provide services as appropriate. Respondent contends that Education Law § 3602-c(9) requires it to contract for special education services only if those services are provided at a public school site located within the district in which the student is attending private school. In the instant case, petitioners do not challenge the actual services recommended by respondent's CSE; rather, they challenge the narrow issue of the CSE's determination that the student's special education services be provided at the public school. Petitioners argue that the site of the services is not appropriate to meet the individual educational needs of their son (Transcript pp. 16-18). Education Law § 3602-c provides as follows:

2. Boards of education of all school districts of the state shall furnish services to pupils who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent, guardian or persons legally having custody of any such pupil. Such a request shall be filed with the board of education of the school district in which the parent, guardian or persons legally having custody of the pupil resides on or before the first day of June preceding the school year for which the request is made. For the purpose of obtaining education for students with handicapping conditions,…such request shall be reviewed by the committee on special education in accordance with the provisions of section forty-four hundred two 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…

9. Pupils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools.

(emphasis added)

        New York State law does confer an individual entitlement to special education services to eligible students enrolled by their parents in nonpublic schools. Section 3602-c(2) of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools.¹ While subdivision 9 of that section provides that such students "shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools," the New York State Court of Appeals has held that:

[t]he statute does not limit the right and responsibility of educational authorities in the first instance to make placements appropriate to the educational needs of each child, whether the child attends public or private school. Such placements may well be in regular public school classes and programs, in the interests of mainstreaming or otherwise [citation omitted], but that is not a matter of statutory compulsion under section 3602-c (Bd. of Educ. v. Wieder, 72 N.Y. 174, 184 [1988]).

        Respondent's contention that such services can be provided only in the regular classes of the public schools is clearly not supportable in light of Wieder, 72 N.Y. 174 (1988). Dual enrollment services can be provided to students with disabilities either in the regular classes of the public schools or elsewhere, including at the nonpublic school the student attends.

        Generally speaking, the school district of the parents' residence must provide an eligible dually enrolled student with special education services if the private school is located within its district, or cross contract for services with another district if the private school attended by the student is not located in the district of residence. Petitioners' main concern is East Islip's refusal to contract with West Islip for services to be delivered within West Islip. As section 3602-c(2) clearly states, the school district where the parent and student reside shall contract with the school district in which the nonpublic school attended by the student is located for the provision of services (Appeal of a Student with a Disability, 41 Ed Dept Rep ____, Decision No.14630 [August 23, 2001]. Therefore, upon a timely receipt of a request for dual enrollment services, respondent, as the school district of residence, must contract with West Islip, the school district of location, to provide the services determined appropriate by the East Islip CSE for petitioners' son. I conclude that the IHO did err in holding otherwise. Dual enrollment services provided pursuant to Education Law § 3602-c must be furnished by the district in which the nonpublic school is located, and the student's district of residence is required to contract with the district of location for such services.

        Moreover, I am not persuaded by the speculative argument of respondent that resource room services are not available for petitioners' son at St John's when testimony revealed that additional resource room services may be obtained through sub-contracting (Transcript pp. 255, 262). In conclusion, as long as petitioners and their son remain residents of East Islip, the student attends private school in West Islip, and resource room services remain appropriate as determined by a CSE, East Islip must contract with West Islip for resource room services for this student.Such services must be provided at a public school in West Islip, on-site of the private school, or at another neutral site, whichever is appropriate (Bd. of Educ. v. Wieder, 72 N.Y. 174, 189-90 [1988]; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent it upheld the provision of dual enrollment services at East Islip for petitioners' son for the 2000-01 school year; and

IT IS FURTHER ORDERED that East Islip shall contract with West Islip to provide CSE recommended services to petitioners' son during the period of time he is dually enrolled at East Islip and St John's.