Matter of B.W. and Capital Preparatory Harlem Charter School

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B***** W***** (“complainant”), the parent of a student who attended Capital Preparatory Harlem Charter School (hereinafter “Capital Prep” or “the school”), filed a complaint regarding special education services and transportation.  The complaint must be sustained to the extent indicated.

Education Law § 2855 (4) provides that any individual or group may bring to a charter school’s board of trustees a complaint which alleges a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  Thereafter, if the complainant determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, he or she may present that complaint to the Board of Regents (“Regents”), which shall investigate, respond, and issue appropriate remedial orders.  Section 3.16 of the Rules of the Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and to issue appropriate remedial orders.

Complainant’s son attended Capital Prep during the 2016-2017 school year.  In April 2017, complainant submitted a complaint pursuant to Education Law § 2855(4) to the school’s board of trustees (“the board”).  On May 26, 2017, the board denied her requested relief.  Complainant then submitted the instant complaint to the Board of Regents, the school’s authorizer.

Complainant alleges that the school failed to make appropriate transportation arrangements for her son and improperly marked him absent or late as a result.  Complainant also contends that school staff has engaged in poor, and at times hostile, communication with parents and students.  Complainant further alleges that Capital Prep failed to provide her son with Integrated Co-Teaching (“ICT”) services[1] required by his Individualized Education Program (“IEP”).  For relief, petitioner requests “adequate bussing moving forward without any interruptions”; that “[a]ll students ... be treated equally at all times”; and an order directing that the student receive the services required by his IEP.

Complainant’s claim concerning transportation must be dismissed as moot.  The board acknowledged in its May 26, 2017 decision that it did not secure bus service for a time as “a result of the School not sending a complete calendar ... [to] the New York City Department of Education.”  The board admitted its mistake, apologized, and indicated that it would correct the student’s record “to the extent [complainant’s] son was marked as late without an excuse and those late marks resulted from busing issues.”  Therefore, complainant has received all of the relief she requested with respect to this claim.  I nevertheless admonish Capital Prep to ensure that students’ transportation needs are timely and accurately submitted to the New York City Department of Education (“NYC DOE”).

There is insufficient evidence in the record to sustain complainant’s claims concerning her allegedly disrespectful treatment by school staff.  I nevertheless remind Capital Prep to ensure that its interactions with parents and students are appropriate and respectful in nature.

Complainant’s claim regarding implementation of her son’s special education services must be sustained.  Like all public schools, charter schools are required to ensure the provision of special education and related services to students with disabilities, and must implement a student’s IEP as written, by ensuring the provision of all services recommended by the Committee on Special Education (“CSE”) of the student’s district of residence.  Specifically, Education Law § 2853 (4) states, in pertinent part, “[s]pecial education programs and services shall be provided to students with a disability attending a charter school in accordance with the Individualized Education Program recommended by the committee or subcommittee on special education of the student's school district of residence.”  Additionally, the school’s charter agreement states that the school shall provide “special education and related services set forth in a student's Individualized Education Program recommended by the committee or subcommittee on special education of the student's school district of residence.”  Similarly, the school’s own initial application stated that it would provide special education services “in accordance with the IEP recommended by the CSE of the students’ district of residence.”

The only explanation given by Capital Prep is that the student’s IEP “prescribes a complete co-teaching (ICT) setting that it has not been chartered to provide.”  This statement is not consistent with the dictates of Education Law § 2853 or Capital Prep’s charter agreement.  Other than this statement, the school has not explained its inability to deliver integrated co-teaching services, which would entail, at minimum, instruction from one general and one special education teacher as required.  In this respect, I note that charter schools may provide special education services directly or arrange to have such services provided by the school district of residence or by contract with another provider (see New York State Education Department, “Charter School and Special Education,” last updated Feb. 1, 2018, available at http://www.nysed.gov/charter-schools/charter-schools-and-special-education).

By failing to provide the ICT services required by the student’s IEP, Capital Prep violated its charter, the charter school act, and the Individuals with Disabilities Education Act.  The school must take immediate steps to ensure the provision of ICT and other services to students with disabilities in accordance with their IEPs.

However, complainant’s remedy in this proceeding is limited to relief against the charter school.  Responsibility for the provision of a free appropriate public education rests with NYC DOE, the student’s district of residence.  Claims for compensatory services brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC § 1415), Education Law § 4404, and section 200.5 (j) of the Commissioner’s regulations.[2]

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that Capital Preparatory Harlem Charter School review, and revise its policies concerning the provision of special education and related services to ensure the provision of Integrated Co-Teaching and other services to students with disabilities in accordance with their Individualized Education Programs; and

IT IS FURTHER ORDERED that Capital Preparatory Charter School shall, no later than December 31, 2021, submit such revised policies to its authorizer for review and approval, consistent with the terms of this decision, and that such approval is sent to the New York State Education Department Charter School Office to retain on file.

IN WITNESS WHEREOF, I, Betty A. Rosa, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this       day of                                 2021.

Commissioner of Education