03-059

          Petitioner, the Board of Education of the Great Neck Union Free School District, appeals from the decision of an impartial hearing officer that ordered petitioner to provide resource room services for respondent's son on site at the Hebrew Academy of Nassau County (HANC), a private parochial school located in Uniondale, New York. The hearing officer also ordered petitioner to develop an appropriate program of compensatory education for the student because he was not provided resource room services for a period of more than four months. The appeal must be sustained in part.

        At the time of the hearing, the student was 13 years old and in eighth grade at HANC where he received a Hebrew/English curriculum. He was voluntarily placed at HANC by his parents, and has never attended district schools. However, he was classified by petitioner's Committee on Special Education (CSE) as other health impaired (OHI), based on a diagnosis of attention deficit disorder (ADD) for which he took prescribed medication. His individualized education program (IEP) for the 2001-02 school year, prior to the year at issue, provided for 5:1 resource room support services 5 times a week for 40 minutes. Although the 2001-02 IEP did not specify where the services were to be provided, the record reveals that they were provided on the premises of HANC through a contract with another school district (Transcript pp. 225-28).

        When petitioner's CSE held its annual review on May 30, 2002 to develop an IEP for the student's 2002-03 school year, it recommended again that he be provided 5:1 resource room services 5 times a week for 40 minutes, and, in addition, suggested test modifications and access to a word processor. Again, the IEP did not specify where the services were to be provided, and there was no discussion at the CSE meeting about where they would be provided (Transcript pp. 38-39, 58). The student's mother and the HANC representatives that were present at the CSE meeting testified that they assumed the services would be provided on site at HANC, as they were the previous year (Transcript pp. 307, 379).

        However, when the school year began on September 4, 2002, respondents' son was not provided resource room services. When his mother contacted the district at the end of September to ask whether resource room services were being arranged, she was told that the CSE was "trying to arrange for service" (Transcript pp. 101-102). On or about September 30, 2002, the district offered the student's mother resource room services at North Middle School, but she advised the district case manager that she did not want her son to receive resource room services at the district school (Transcript pp. 100-02, 426). By letter dated October 15, 2002, petitioner's assistant superintendent advised respondent that resource room services would be provided at the district's North Middle School starting October 21, 2002, with transportation to HANC after the resource room period was concluded (Exhibit District 6). Petitioner asserts that it was unable to continue to provide services at HANC due to the loss of a contract with another school district, and/or inadequate federal funds (Transcript pp. 225-28; Exhibit 11).

        On October 17, 2002, the CSE reconvened at respondent's request, because HANC had requested certain testing modifications for the student. The location of resource room services was not discussed at the meeting (Transcript p. 38). On or about November 7, 2002, respondent informed the district that she had changed her mind and wanted the student to receive resource room services at a district site with a math concentration (Transcript pp. 107, 110). On or about November 12, 2002, the district arranged for transportation for the student to a resource room program at North High School from 8:00 a.m. to 8:40 a.m., and then transportation to HANC (Exhibits 7, 9). However, the student's mother rejected petitioner's offer to provide in-district resource room services, and requested an impartial hearing on December 10, 2002 (Transcript pp. 112-13).

        The hearing was held on January 13, February 3, March 4 and March 10, 2003. On January 14, 2003, the impartial hearing officer issued an interim order, directing petitioner to provide resource room services at HANC as the pendency placement. On May 23, 2003, the hearing officer issued a final decision, ordering petitioner to provide resource room services for the student on site at HANC. The hearing officer found that the district acted improperly when it "unilaterally and arbitrarily" cancelled the student's resource room program at HANC, with no evidence the student's needs had changed, and no discussion of the change in services at the CSE meeting. He further found that the district was not prohibited in any way from providing the resource room services at the site of the private school, noting that the services had been provided at HANC the previous year, and were currently being provided at other private parochial schools.

        The hearing officer also directed the parents to meet with district representatives to develop an appropriate program of compensatory education for the student equivalent to the deprivation of services that occurred when he received no resource room services (September 4, 2002 to January 16, 2003) plus the period of time it would take to develop and implement the compensatory program. The hearing officer retained jurisdiction over the matter, stating that if the parties could not agree on an appropriate program of compensatory education within 21 days after receipt of his order, he would meet with the parties and order such a program. The hearing officer also denied respondent's request for reimbursement of the cost of tutoring services, which respondent has not appealed. The hearing officer additionally retained jurisdiction in the event that petitioner altered the student's IEP or failed to implement it fully to the parents' satisfaction, and stated that if the parents requested an impartial hearing he would call the parties together immediately to resolve whatever differences existed.

        Petitioner first requests that I find that the IEP developed at the May 30, 2002 CSE meeting is appropriate to meet the student's needs, and that the resource room services may appropriately be provided at the in-district location. A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Florida U.F.S.D., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 03-053; Application of a Child with a Disability, Appeal No. 02-092). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). In this case, the parties agree that the resource room services specified in the IEP are appropriate. The issue in this appeal does not involve the sufficiency of the IEP itself, but rather whether it was proper for the district to change the location of the service from HANC to it own middle school.

        The Individuals with Disabilities Education Act (IDEA) confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. The 1997 amendments provide that a "proportionate amount of Federal funds" be made available to students with disabilities who are voluntarily placed by their parents in private schools (20 U.S.C. §1412 [a][10][A][i][I]; 34 C.F.R.§300.403[a]; 300.450 et seq.). The federal regulation implementing this statutory provision specifies that: "[n]o 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" (34 C.F.R. § 300.454[a][1]). Where the school district does offer special education to a private school student, it must develop a "services plan" to be provided "on-site at a child's private school, including a religious school, to the extent consistent with law" (34 C.F.R. § 300.452 [b]). Specific funding requirements apply to such services (34 C.F.R. § 300.453), and due process is not available for complaints that the school district did not provide such services (34 C.F.R.§ 300.457[a]).

        However, section 3602-c of the New York State Education Law requires that districts provide special education services to students with disabilities who are enrolled by their parents in nonpublic schools, where a free appropriate public education (FAPE) is not at issue. Although the record contains no indication that the parent filed a request for dual enrollment services, as required by law, on or before the first day of June, I find that the special education services in question were provided consistent with section 3602-c, since the student received an IEP for both the 2001-02 and 2002-03 school years and since the district provided a due process hearing for the student regarding the change in location of services (Education Law § 3602-c[2]; seeApplication of a Child with a Disability, Appeal No. 02-035). Having determined this, I find that petitioner waived any objection or argument it may have had that the services were solely provided pursuant to federal law.

        Section 3602-c provides that "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" (Application of a Child with a Disability, Appeal No. 02-035). 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]).

        School districts are therefore not obligated to provide special educational services at the private school (Bd. of Educ. v. Wieder, 72 N.Y. 174, 184 [1988]; (Russman v. Bd. of Educ., 150 F.3d 219, 222 [2d Cir. 1998]; Application of the Bd. of Educ. of the Wheatland-Chili Cent. Sch. Dist., Appeal No. 02-078; Application of the Bd. of Educ. of the Carmel Cent. Sch. Dist., Appeal No. 01-015), unless the services are of such a nature that it would be appropriate to do so (Application of the Bd. of Educ. of the Hyde Park Cent. Sch. Dist., Appeal No. 02-024). Further, the fact that petitioner chose to provide resource room services at HANC during the 2000-01 school year does not obligate it to provide services at HANC or any other site selected by the parent in a subsequent school year (Application of the Bd. of Educ. of the Shenendehowa Cent. Sch. Dist., Appeal No. 00-073).

        Therefore, upon a timely receipt of a request for dual enrollment services, or a waiver of such request, as in the instant case, petitioner, as the school district of residence, must contract with the school district of location to provide the services determined appropriate by its CSE for respondents' son. I conclude that the impartial hearing officer 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.

        Under the facts presented in this case, since respondent's son is a resident of petitioner school district, and since petitioner's CSE has developed an IEP providing for resource room services for respondent's son pursuant to Section 3602-c, and since he is a student at HANC-Uniondale, which is located in the Uniondale school district, I am remanding the case to petitioner's CSE to contract with Uniondale for the provision of resource room services for respondent's son.

        I therefore annul the portion of the hearing officer's decision that ordered petitioner to provide resource room services on site at HANC. I must also annul the hearing officer's decision insofar as he ordered petitioner to provide compensatory education to the student for the period between September 2, 2002 and January 2003. Compensatory education is special education provided to students after they are no longer eligible to receive such services due to either age or graduation. It may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for an extended period of time (Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [1988], Reaffirmed, 888 F.2d 258 [2d Cir. 1989]). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case (Wenger v. Canastota, 979 F.Supp. 147 [N.D.N.Y. 1997]).

        Petitioner concedes that the student is entitled to compensatory education for the period September 2, 2002 through September 30, 2002, when his mother rejected the services that were arranged to be provided at North Middle School. Respondents' son is, only 13 years old and any deprivation of instruction can be remedied through the provision of additional services before he becomes ineligible for instruction. Therefore, this is not a proper case for an award of significant compensatory education (Application of the Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, Appeal No. 02-090; Application of a Child with a Disability, Appeal No. 02-042), and I will award additional services only for the period to which petitioner has conceded.

        I must further annul the hearing officer's decision to the extent that the hearing officer retained jurisdiction over this particular student "in the event that the District, by its actions or actions, alters [the student's] IEP or fails to implement it fully." There are procedures established in Education Law §4404 and 8 NYCRR 200.5(i) for requesting an impartial hearing if a parent believes that a school district is not providing appropriate services under a student's IEP, and for assignment of impartial hearing officers after a district receives a parent's request for an impartial hearing. Appointment of the hearing officer must be made pursuant to the rotational selection process established in 8 NYCRR §200.2. The instant hearing officer cannot circumvent these appointment procedures by purporting to retain jurisdiction over all issues that may arise in the future regarding this particular student's IEP, other than resolving the issues in the instant appeal.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent that the hearing officer ordered petitioner to provide resource room services on site at HANC; and

IT IS FURTHER ORDERED, unless the parties have otherwise agreed, that within 30 days of the date of this decision, petitioner shall contract with the Uniondale Union Free School District to provide CSE recommended services to respondent's son during the period of time he is dually enrolled at Great Neck and HANC; and

IT IS FURTHER ORDERED that the hearing officer's decision is hereby annulled to the extent that it ordered compensatory education for the period of September 2, 2002 through January 2003, and retained jurisdiction over any future complaints by respondent that petitioner has the student's IEP or failed to implement it fully; and

IT IS FURTHER ORDERED that petitioner will provide additional services to respondent's son for the period September 2, 2002 through September 30, 2002.