Bay Shore v. Thomas K.: The issue of the right to on site services at a private school has been hotly litigated since the early 1990s (see, e.g. Russman). This is the most recent case of significance. The situation giving rise to this legal action arose in 2004. The child was attending a private school when he was referred to the district CSE. The CSE recommended that the child be classified as OHI and that he receive resource room and a 1:1 aide, but only if he were to attend the public school. The parents requested a hearing, asserting that he should be able to receive the services of the aide in the private school. The IHO and SRO found for the parent. The school district appealed to federal court. The federal district court affirmed prompting an appeal by the school district to the 2nd Circuit. The 2nd Circuit vacated and dismissed the district court decision for lack of subject matter jurisdiction finding that the issue was one of purely state law. The school district then commenced a state court action to vacate the SRO decision. The courts continue to hold for the parents; first the state supreme court, then the appellate division (60 AD3d 851, 852 [2009]) and now the NY Court of Appeals. The Court of Appeals reasoned that while the language of Education Law §3602-c does not compel on site provision of services, it allows for the provision of services on site at a private school. Here, the child could not have benefitted from the recommended 1:1 aide services unless they were delivered on site.
The school district also argued that an aide was not a “service” under the law. The court also rejected this argument.
