02-078

         Petitioner, the Board of Education of the Wheatland-Chili Central School District (district), appeals from an impartial hearing officer's decision ordering it to provide respondents' daughter with speech-language therapy at an out-of-district private school during the 2002-03 school year. The appeal must be sustained.

        At the commencement of the hearing in July 2002, respondents' daughter was six years old and had just finished kindergarten at the Allendale Columbia School (Allendale Columbia) in Brighton, New York. Allendale Columbia is a private school located outside of the boundaries of the district (Petition ¶ 4). The child started kindergarten at that school in September 2001 and as a result of delays in her articulation (District Exhibit 5; Parent Exhibit 1; Stipulation of Facts and Issues ¶ 6), began to receive speech-language services from Allendale Columbia staff on November 13, 2001.

        As a follow-up to the commencement of speech-language services at Allendale Columbia, a speech-language pathologist employed by petitioner evaluated respondents' daughter on January 14, 2002 using the Goldman-Fristoe Test of Articulation – Second Edition (Goldman-Fristoe 2) and the Test of Language Development – Primary – Third Edition (TOLD – Primary:3). The results of the TOLD-Primary:3 indicated that the child's vocabulary and language skills were within normal limits. However, based on her scores on the Goldman-Fristoe 2, the evaluator concluded that the child had mild to moderate articulation delays which were characterized by sound substitutions of "'w" for "l," "w" for "r," and "f " for the voiceless "th." These errors were present in sound blends as well as in words containing these sounds. The child's score on the Goldman-Fristoe 2 was within the seventh percentile for articulation skill and fell 1.5 standard deviations below the mean. The speech-language pathologist also reported that the child's articulation errors were prominent in her conversational speech, and therefore, might affect her intelligibility, which in turn might adversely affect her educational performance. The evaluator recommended that respondents' daughter receive three 30-minute sessions a week of speech-language therapy to address her articulation delays and that the matter be reviewed by petitioner's Committee on Special Education (CSE) to determine if the child should be classified as speech impaired (District Exhibit 5).

        A school psychologist evaluated the child on or about January 24, 2002. Administration of the Wechsler Preschool & Primary Scale of Intelligence - Revised Edition (WPPSI-R) yielded a verbal IQ score of 116, a performance IQ score of 133, and a full-scale IQ score of 129, indicating overall cognitive ability in the superior range. The child's percentile (and standard scores [SS]) on the Woodcock-Johnson Tests of Achievement – Revised (WJ-R), ranged from 41 (SS 97) and 50 (SS 100) in passage comprehension and broad reading, respectively, to 78 (SS 112) and 82 (SS 114) in broad written language and calculation, respectively. The results of this achievement test battery indicated that the child's academic performance was at grade level in all tested areas (District Exhibit 4).

        Petitioner's CSE met on February 6, 2002. At that time, the CSE recommended that respondents' daughter receive speech-language therapy (Transcript pp. 37, 42, 45). With respondent's consent, petitioner delayed the preparation of an individualized education program (IEP) for the child until after the CSE's annual review meeting which was to be held later that year (Transcript p. 45). Effective at or about the end of April 2002, petitioner contracted with Allendale Columbia for staff of that school to continue to provide the child with speech-language services for the balance of the 2001-02 school year (Transcript pp. 31-32, 37, 45).

        The CSE held the annual review for respondents' daughter on May 22, 2003, at which time it made certain recommendations for the 2002-03 school year. The IEP developed at that meeting (District Exhibit 3) provided that the child would receive 30 minutes of individual speech-language therapy three times a week. The services would be provided at the Thomas J. Connor Elementary School (Connor Elementary School), the school respondents' daughter would have attended had she attended public school (Transcript p. 26). At respondents' option, the child would receive the speech-language therapy either at the beginning (9:00 am) or the end (2:30 pm) of that school's instructional day (District Exhibit 3; see Transcript p. 27). During the May CSE meeting, the child's kindergarten teacher and speech-language therapist, as well as respondents, objected to these services being provided at the Connor Elementary School rather than at the child's private school (Transcript p. 58). When the CSE declined to provide the speech-language therapy at the child's private school for the 2002-03 school year, respondents advised the group that they wished to proceed with an impartial hearing (see District Exhibit 1; Transcript pp. 37-38, 58). Respondents received the IEP for the 2002-03 school year in June of 2002 (District Exhibits cover page dated June 18, 2002; Transcript pp. 19, 41).

        The impartial hearing was held on July 1, 2002. At the hearing, the parties introduced a stipulation of facts and issues and a number of exhibits. During the hearing, respondents, who were not represented by an attorney, asked the hearing officer to order petitioner to provide their daughter's 2002-03 speech-language services at Allendale Columbia or at another school or location closer to that school than was the Connor Elementary School (Transcript pp. 12, 18, 130). Consistent with the discussion at the May 2002 CSE meeting, the parents' concern was the time the child would lose from her educational program if the services were provided at petitioner's elementary school. Connor Elementary School was approximately 17 miles from Allendale Columbia (Transcript p. 80). Generally, travel by school district transportation between Connor Elementary School and Allendale Columbia required approximately 30 minutes (Transcript pp. at 66-69, 73-76, 81-82). As a consequence, respondents' daughter would lose approximately five hours a week of her core academic program if petitioner provided the speech-language services at 9:00 am (Transcript p. 112). If petitioner provided the services at 2:30 pm, the child would lose approximately three hours a week of her program, most of which would have involved physical education, art, and music (Parent Exhibit 1; Transcript p. 127).¹ Petitioner argued that neither the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1487) nor section 3602-c of the Education Law required it to provide respondents' daughter with speech-language therapy at the location of the child's private school, and that the board of education retained the right to provide the child with these related services at a location within its school district. I note that there was no dispute at the hearing regarding the amount or type of speech-language therapy that petitioner would provide to respondents' daughter or her classification as speech-language impaired.

        The hearing officer rendered his decision on July 18, 2002. He concluded that petitioner had not offered respondents' daughter a free appropriate public education (FAPE) because it had not developed an IEP subsequent to the February 6, 2002 CSE meeting for the balance of the 2001-02 school year and because it had not provided respondents or the child's kindergarten teacher with a copy of the 2002-03 IEP. He concluded that as a result, petitioner was required to provide the child with speech-language services at her private school for that school year.

        Under the IDEA, students voluntarily enrolled in nonpublic schools are not individually entitled to the special education services they would receive if enrolled in a public school (34 C.F.R. § 300.454[a][1]). Rather, each board of education is required to spend only a proportionate amount of money for special education services for students voluntarily enrolled in private schools, such amount to be determined by dividing the number of private school students with disabilities residing in its jurisdiction by the total number of students with disabilities in its jurisdiction and multiplying the quotient by the amount of IDEA funds received by the local school district (20 U.S.C. § 1412[a][10][A][i][I]; 34 C.F.R. § 300.453[a]). Decisions about the services that will be provided to such private school children by a school district under the IDEA are to be made in consultation with representatives of private school children with disabilities and in accordance with a services plan for each child (34 C.F.R. § 300.454[a][2]).² The IDEA also provides that special education services provided to children enrolled in private schools may be provided on the premises of such schools consistent with law (20 U.S.C. § 1412[a][10][A][i][II]). Federal law does not, however, require that such services be provided on site at such schools (Russman v. Bd. of Educ. of the City of Watervliet, 150 F.3d 219, 221-22 [2nd Cir. 1998]).

        With respect to the placement of children in private schools by parents if FAPE is at issue, the IDEA "does not require a local educational agency to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made a FAPE available to the child and the parents elected to place the child in such private school or facility" (20 USC § 1412[a][10][C][i]; see also 34 C.F.R. § 300.403[a]). Under IDEA, if a school district has offered a FAPE to a child whose parents enroll him in a private school, the school district maintains the discretion to determine not to provide the child's special education services at the location of the child's private school (Russman, 150 F.3d at 222; Jasa v. Mallard Public School District No. 17, 206 F.3d 813, 815 [8th Cir. 2000]; Application of a Child with a Disability, Appeal No. 01-015; Application of a Child with a Disability, Appeal No. 99-025; Application of a Child with a Disability, Appeal No. 98-3).³ However, if a school district has not offered a FAPE to the child and as a consequence a parent unilaterally enrolls a child in a private school, the district may be required to provide the special education services at the child's private school or to reimburse the parents for their expenditures for such services, as appropriate (See Application of a Child with a Disability, Appeal No. 01-015).

        Petitioner contends that the hearing officer should not have considered respondents' allegations that it improperly failed to prepare a 2001-02 IEP and that it failed to timely deliver the 2002-03 IEP. Petitioner asserts that the parties stipulated that the issue in contention was the location of the related services and that the child's mother indicated at the hearing that she did not want to add as issues whether petitioner provided her daughter with an IEP for the balance of the 2001-02 school year and whether petitioner provided respondents and the child's teachers with copies of the IEP for the subsequent school year. Assuming, without deciding, that respondents properly raised such issues at the impartial hearing, neither provides an adequate basis upon which to find a denial of FAPE under the circumstances presented. Although the CSE should have written an IEP reflecting the decisions made at its February 6, 2002 meeting (See 8 NYCRR 200.1[y]; 34 C.F.R. § 300.340[a]), its failure to do so had no bearing on whether petitioner offered respondents' daughter a FAPE for the subsequent school year. I, therefore, find that the hearing officer erred in concluding that petitioner's failure to generate an IEP for the balance of the 2001-02 school year deprived respondent's daughter of an offer of a FAPE with respect to the 2002-03 school year.

        With respect to the hearing officer's conclusion that petitioner did not provide respondents or their daughter's regular education kindergarten teacher at Allendale Columbia with a copy of the 2002-03 IEP, I note that respondents received that IEP in June of 2002 (Transcript p. 41), well prior to the beginning of the 2002-03 school year. Therefore, I find that respondents timely received a copy of their daughter's 2002-03 IEP as required by the applicable state and federal regulations (See former 8 NYCRR 204[e][3]; 34 C.F.R. § 300.345[f]).

        Regarding the receipt of the 2002-03 IEP by the child's kindergarten teacher during the 2001-02 school year, the regulations in place during the relevant period did not require petitioner to provide the child's current kindergarten teacher with a copy of the student's IEP for the next school year, when she would be in the first grade. Rather, the then applicable regulations provided that the child's teachers and service providers responsible for implementing the IEP, have access to a copy of the IEP during the relevant school year (See former 8 NYCRR 200.4[e][3]; see also 34 C.F.R. § 300.342[b][2]; 34 C.F.R. Part 300, Appendix A, Question 23).⁴ There was no evidence that petitioner did not provide any of the child's teachers or service providers who had responsibilities to implement any part of the child's IEP for the 2002-03 school year with access to her IEP during that school year. In fact, at the time of the hearing, the 2002-03 school year had not yet begun.

        I find therefore that the bases relied upon by the hearing officer for his conclusion that petitioner failed to provide respondents' daughter with a FAPE are insufficient to support such a conclusion. Given my findings, it is unnecessary to address the other issues raised by petitioner with respect to the hearing officer's determination that petitioner deprived respondents' daughter of a FAPE.

        Petitioner also contends that relevant provisions of New York State law do not require it to provide speech-language services to respondents' daughter at an out-of-district location. In contrast to the IDEA, New York State law confers an individual entitlement to special education services to eligible students enrolled by their parents in nonpublic schools (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). Specifically, section 3602-c of the Education Law (the New York "dual enrollment" statute) requires the provision of special education services to students with disabilities who are enrolled by their parents in nonpublic schools provided that a written request for such services is filed with the board of education on or before the first day of June preceding the school year for which the request is made (Education Law § 3602-c[2]). Timely requests for services are to be reviewed by the CSE, and review of the CSE's recommendation is available by means of the impartial hearing process (Education Law §§ 3602-c[2], 4404[1]; Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-106). For a child who resides in one school district and attends a nonpublic school in another district, the statute requires that the child's home school district contract with the school district in which the nonpublic school is located for the provision of educational services to the student (Education Law § 3602-c[2]; Application of a Child with a Disability, Appeal No. 02-035). In such a case, the school district in which the child attends school may provide the educational services at a public school in that district, at the student's nonpublic school, or at another neutral site, whichever is appropriate (id.).

        I do not consider whether section 3602-c of the Education Law required petitioner to provide respondents' daughter with speech-language services by contracting with the school district in which the Allendale Columbia School was located. Respondents did not base their argument regarding where their daughter should receive special education services on the specific provisions of the dual enrollment statute. Moreover, there is nothing in the record or the written argument to suggest that respondents filed with petitioner board a timely written request for dual enrollment services for the 2002-03 school year or that petitioner considered the student to be dually enrolled for the 2002-03 school year.

        THE APPEAL IS SUSTAINED.

        IT IS ORDERED that the hearing officer's decision is hereby annulled.