New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 2

Hearing Requested By: Parent

Date of Hearing: May 31, 2011

Hearing Officer: David Bass, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 31, 2011

Attorney — Student

Parents

Head Teacher, Academy (via telephone) — Student

Attorney — DOE

PhD, Psychologist, CSE, Region 10 (via telephone) — DOE

Office of Pupil Transportation (via telephone) — DOE

Procedural History — DOE

Pursuant to the Individuals with Disabilities Education Act (“IDEA”), the undersigned was designated to serve as Impartial Hearing Officer (“IHO”) in the dispute between the parties, with the responsibility to hear and decide the matter described herein. The hearing was requested by a February 10, 2011 letter (Exhibit 1) from , on behalf of the parents of . The hearing was held on May 31, 2011 at 131 Livingston Street, Brooklyn, NY. On that date, Dr. , Mr. and Ms. testified by telephone, and Mr. testified in person. The parties were given a full opportunity to present evidence and argument in support of their respective positions. Each party made an oral closing statement, and it was agreed that a copy of decisions each party referred to in its closing statement would be e-mailed to the Impartial Hearing Officer and to the other party. Upon receipt of those decisions on June 1, 2011, the hearing was closed. Background and Issues

. (“Student”) is an -year-old child, who attends the Academy, a private education school in Manhattan, the borough where he lives. Parents seek an order directing the Department of Education (“DOE”) to provide transportation to and from school during the 2010-2011 school year, and for reimbursement of their transportation expenses for Student. The terms “Student” and “Parent(s)” will be used to minimize personally identifiable information in this decision.

The basic issue presented by this case is as follows: Under New York State Education Law section 4402, or other law, is Student entitled to transportation, by bus or by another mode of transportation, between home and the Academy, the school he is attending for the 2010-2011 school year? If so, are Parents entitled to reimbursement of transportation costs for Student incurred by them for the current school year? Parents’ Position

Parents’ argument is summarized as follows: Student is an -year-old child with and function , having been identified as a child with a disability. He attends Academy where he receives education and related services. DOE had a duty, primarily under New York Education Law 4402, to transport Student to and from Academy. The issue in this case is the similarity of the services at Academy to the Individualized Education Program (“IEP”). In SRO case no. 07-073 (Exhibit J) and a few older State Review Officer (“SRO”) decisions, the standard essentially is that the child receives at the school he attends education and related services as described on the IEP. In 07-073, the child was recommended for general education with Education Teacher Support Services. (“SETSS”) The State Review Officer found that the parents were not entitled to tuition reimbursement because the child was provided a Free Appropriate Public Education (“FAPE”), but were entitled to transportation expenses because the school program was similar to the IEP. Similar was defined as whether the issues on the IEP are being addressed in the education school. In the instant case, Dr. and Ms. both testified about and , reading and written , and organization. The IEP recommends Therepy (“ ”) and testing accommodations, and Student receives both at Academy. The similarity of the services at Academy to the IEP leads to a conclusion that Education Law 4402 was violated.

Both Student’s father and Ms. were the only two people who testified about the appropriateness of Student taking a bus or train by himself between home and Academy, and both agreed it would not be appropriate for him to do so. Parents worked out on a daily basis a reasonable way that would fit their schedules to get Student to and from Academy. They spent $455 for Student’s Metrocards, which DOE acknowledged that Student was not provided even though he was entitled to them. In connection with getting Student to and from Academy, Parents also spent $363 for parking, and $1,120 for car service over the course of the current school year. They should be reimbursed for expenses incurred until transportation is provided. Parents presented their case through Exhibits A through K, which are listed in an attachment to this decision, and the testimony of Student’s father and , head teacher at Academy. New York City Department of Education’s Position

DOE’s argument is summarized as follows: This is not a case about education transportation, where transportation is indicated on an IEP. It is about general education transportation and is governed by state law. Under New York Education Law 4402, Student is entitled to full-fare transportation only if the School is a similar program to a general education school, which was the setting recommended by Dr. , DOE’s psychologist, at the IEP meeting. Dr. testified that at public schools and at St. , the private general education school that at the time of the IEP Student was expected to continue attending, classes contain at least 20 students, with one general education teacher in the classroom. She testified that she believed not all students in Student’s class at St. had IEP’s. Although this case is not about FAPE, it is important to understand Dr. ’s testimony that after speaking with Student’s teacher at St. , reviewing his test scores and the teacher’s report, all of which suggested that Student was functioning at or just below grade level, she recommended general education with SETSS. Dr. testified that she did not believe a more restrictive recommendation was appropriate. Because of his abilities and strengths, she recommended a general education program to allow him to integrate with other general education students in the least restrictive environment and to continue and progress with his education.

There is no similarity between a general education program and a restrictive program, such as the Academy, where Student is with only eight other students, where there are two or three teachers for the class of nine, where every other student in the class has an IEP, and there is no room for integration into a less restrictive environment. A fairly similar case concerning transportation that provides persuasive authority is IHO no. where the IHO found that the Committee on Education’s (“CSE”) recommendation of somewhat restrictive integrated co-teaching, also known as CTT, was not similar to a private education school.

As to suitable transportation for Student, Dr. testified that Student could read street signs, and Mr. , chief of staff of DOE’s Office of Pupil Transportation (“OPT”), testified that a Metrocard is the mode of transportation for a grader in Student’s situation as per the guidelines of the Chancellor’s Regulations and OPT. Mr.

testified that it is not DOE’s responsibility to ensure that Academy, a private school, gave out Metrocards that were provided to it for eligible students under procedures in place. Finally, the evidence of transportation expenses in Exhibit K contains undated car service receipts, receipts for parking at Parent’s place of employment on days when she used her personal vehicle for convenience, and receipts for Metrocards for which there is no hard evidence that they were used by Student to go to and from Academy on particular dates. Exhibit K should be given little weight. DOE presented its case through Exhibits 1 through 18, which are listed in an attachment to this decision, and the testimony of two witnesses.

Findings of Fact and Conclusions of Law

The testimony of the witnesses establishes the background of this dispute, as well as the material facts to decide it. I adopt the following summary of the witness testimony as my findings of fact.

Dr. testified (Transcript [T.] at pages 14-59) that she has been employed by DOE as a Title I psychologist for more than 20 years, and has been assigned to CSE 10 for about a year and a half. She conducts annual review meetings in the spring to determine if the current services provided to non-public school students who are disabled or impaired are appropriate for the following school year. Dr. does classroom observations of students in connection with initial and annual reviews. One of the non-public schools she works with in CSE 10 is St. , which Student was attending during the 2009-2010 school year. Dr. was the school psychologist and District representative for his April 13, 2010 annual review meeting. The IESP recommended that Student’s classification was disability and that his program should be general education with SETSS and related services. The outcome of the review was to recommend no changes for the 2010-2011 school year. (T. at 14–24)

Dr. testified that the main documents considered at the annual review were Student’s CAP form, his IESP and the report (Exhibit 8) from , his then current teacher at St. . Ms. ’s report indicated that Student was very close to or at grade level in reading and math, as did the results of tests reported in the IEP. Ms. had positive views of Student’s functioning. Dr. was concerned that Ms. indicated Student does not and very well so that he misses important instructions, and is and items and/or homework. (T. at 25–26, 47-48) Student’s mother said that for many years she had been pursuing outside services related to what she felt was Student’s Disorder (“ ”) difficulties. Apart from what Parents were doing, Dr. recommended continuation of and SETSS to address the . Dr. noted OT goals in the IEP for 2010-2011 that related to improving Student’s organizational skills. (Exhibit 3, page 8) Dr. recommended that SETSS should continue based upon the prior testing, the teacher report and Student’s difficulties. (T. at 39–40) She concluded that a program more restrictive than the general education Student received at St. was not warranted given his grade levels and the fact that and SETSS were being provided. Dr. ’s recommendations were based upon her understanding that Student would continue in 2010-2011 at St. ,a general education school, where the class size is in the mid-20’s. (T. at 50-51) In Dr. ’s opinion, Student would be able to read street signs out on the street. (T. at 45–46)

On cross-examination, Dr. testified that from the prior testing, there were no issues of distractibility or organization, but Ms. made a comment that Student is very and items and/or homework (T. at 55) Dr. kept the previous classification of disability because Student had average , but had relatively weaker abilities in reading as opposed to math. She put testing accommodations on the IESP. (T. at 55–58)

testified (T. at 60-105) that he is chief of staff of the NYC DOE’s Office of Pupil Transportation (“OPT’). Until about a week ago, he had served for about three years as OPT’s director of general education transportation. He began at OPT about four years ago as director of projects, with duties including responsibility for distribution of Metrocards to 400,000 students, for dealing with exceptions to policy in regard to pupil eligibility for transportation, and for assisting transportation personnel in the non-public schools DOE provides services to. As director of general education transportation, he was responsible for creating routes and services for new schools, and for managing the allocation of routes and large buses for - general education students. Through grade, students are eligible for either a Metrocard or a school bus, depending on various circumstances. (T. at 60-65)

Mr. testified that he is familiar with the education standard operating procedure manual and Chancellor’s Regulation A-801 as they pertain to transportation. For transportation purposes, education refers only to those students who have IEP’s that designate they are receive door-to-door transportation, which is usually on a small bus that may have equipment. The overwhelming majority of other - students, including students with IEP’s that do not call for door-todoor transportation, are considered general education students who are entitled to full-fare transportation, either busing or a Metrocard. The first consideration in whether a general education student gets a bus or a Metrocard is the student’s grade and distance from home to school. Full-fare transportation is available for - grade students who live more than one-half mile from school; grade - students who live more than a mile from school; and grade - students who live more than a mile and a half from school. Grade students, who do not have a disability variance, receive a Metrocard.

Mr. testified that yellow buses are provided for - students when certain conditions are met. The principal must ask for yellow bus service. To create a bus route for a public or private school that has chosen to have busing, the bus must be able to pick up at least 11 students, and the route itself cannot extend more than five miles when measured through the streets. Busing is provided for a general education student at a school that has not requested busing for the duration of a documented condition, such as a leg, that necessitates bus transportation. Other categories of general education students entitled to busing are pupils who live in shelters, pupils who transfer pursuant to the No Child Left Behind Act from a public school in need of improvement to another public school, and pupils in a situation where there is documentation of domestic violence or that they have been a crime victim so that busing is needed for safety reasons. Public school busing is limited to the boundaries of the school district. Private school busing is limited to the boundaries of the borough. (T. at 65-78)

Mr. testified that he was familiar with the transportation possibilities for Student, who lives in northern Manhattan and attends a school six and a half miles away. Because he does not have an IEP that calls for door-to-door transportation, Student who is in the to grade range, under normal rules, would be eligible for a Metrocard. As a general education student for transportation purposes, there would be no circumstances where he would be eligible for a general education bus route. (T. at 79-81)

On cross-examination, Mr. stated that education busing is doorto-door. General education busing involves being picked up and dropped off at a gathering point. Children who receive education, but are not education transportation, are treated 100 % for transportation purposes as if they were general education students. New York State Education Law 3635 governs transportation outside of New York City, and carves out an exception for New York City by leaving it to the Chancellor to determine busing. The Chancellor’s determination is Regulation A-801, which covers general education busing. Under A-801, Student would be entitled to a Metrocard. The school would have had to request a Metrocard for Student. Mr. did not have personal knowledge, but did not believe that Student was provided a Metrocard because he did not see a Metrocard serial number entered on his record. (T. at 82-90)

On redirect examination, Mr. explained that for Student to receive a Metrocard, his school would have had to make OPT aware of his transportation requirements by entering information specific to him on the Non-Public School Information System (NPSIS). OPT takes student data out of NPSIS during the summer, and ships the school Metrocards in serial number order based upon the number of students that data indicates are eligible for Metrocards, plus 20% more for the beginning of the school year than the school’s enrollment calls for. The school then distributes the cards to the students. The nonpublic school enters the serial number of the card given to a particular student in a manual log, and indicates that the student received a card on the student’s record in NPSIS. In Student’s case, Mr. saw that he was eligible to receive a Metrocard because CSE did not enter information in the relevant computer system saying that he should be routed on a education bus. Mr. could not tell from the information he reviewed whether or not Student received a Metrocard. If the school needed additional Metrocards, it would get in touch with OPT and say it needed more cards. Mr. testified that after Metrocards are shipped to a private school, such as Academy, it is not his responsibility to ensure that the cards are handed out to the students. OPT shipped Metrocards to Academy for 2010-2011. (T. at 95-104)

On recross examination, Mr. indicated that the computer systems he testified about are part of the implementation of Chancellor’s Regulations that New York City has instead of Education Law 3365. Mr. is not familiar with Education Law

4402. (T. at 105)

, Student’s father, testified (T. at 108-159) that he attended a CSE meeting for Student for the 2010-2011 school year on April 13, 2010. His wife mailed a request for an additional meeting, which was held in July 2010 after several re-schedulings. Student’s father wrote an August 23, 2010 letter (Exhibit D-1) to the CSE advising that in September 2010, Student would begin attending Academy, as he did. That letter ended, “Please arrange for busing to Academy immediately.” Student’s father also wrote an October 6, 2010 letter (Exhibit D-2), which indicated that Student was experiencing problems regarding busing and that Parents were seeking to have DOE provide busing. Mr. stated that Student has a disorder in terms of organization and executive functioning, whereby he has a problem with a series of directions. Student receives education at Academy related to his difficulties. Specifically, he is allowed to type out notes on a computer; different methods are used to address his “fidgeting;” he receives assistance with reading in a group setting; there is a situation where there are three teachers in the room, which allows him to receive individual ; he is given time daily with a school psychologist on staff; he is given the opportunity to leave his class at any time in order to speak with someone; and he receives OT three times a week. (T. at 108–114)

Mr. testified that the DOE has not provided Student with a Metrocard. The family lives in northern Manhattan and Academy is on 30th Street, between Madison and Park Avenues in Manhattan. Student has traveled between home and Academy via the family’s personal vehicle, the MTA, via train or via bus. (T. at 114) Student was not allowed to go to school by public transportation by himself, but there were times early in the year when he came home by himself. In about the second week of school, he took a public bus to go home, but fell asleep and missed his stop. He went to the last stop, and did not know how to get home. Student was not allowed to go to school by himself because going by train one way involved too many steps, going another way by train left him off where he would be endangered in crossing several major streets, and it was too long a trip via bus. Taking the train at a busy time of day, together with the need to deal with the amount of exits and entrances, would have been too much to deal with for Student, who often gets lost when he has to follow set directions. A long bus ride was ruled out because Student would be tired, and might fall asleep and get lost again. (T. at 114-117, 120-121)

Mr. testified about the costs incurred in transporting Student between home and school. These involved the cost of Student’s individual Metrocards, the cost of parking the family vehicle, and the cost of car service. (Exhibit K) Parking costs were incurred when Student was driven to school and his mother had to pay to park the vehicle in lower Manhattan where she worked. The mode of transportation used was a matter of convenience for Student’s mother, father or sister, and necessity for Student. There were 32 receipts for car service totaling $1,120, approximately $383 for parking and $455 for Metrocards.

On cross-examination, Mr. explained that the first eight pages of Exhibit K are undated receipts for car service at $35 per trip to take Student to or from school. Student’s brother or sister signed the receipts. Pages 9-23 of Exhibit K are parking receipts for days that Student was driven to school by his mother or father and dropped off, and the car was driven to and parked at or near the World Financial Center, where his mother worked. Mr. agreed that pages 17 and 20 of Exhibit K are duplicates of the $20 receipt for parking on November 22, 2010. Pages 24-36 document charges for Student’s Metrocards that were bought specifically for him and were used only for his travel between school and home on regular school days, and were not used by the family member accompanying him. Mr. could not specify the dates the Metrocards were used. (T. at 121-153)

On redirect examination, Mr. indicated that the parking garages were near his wife’s place of work as a matter of ease of use for her and for him. Mr. goes to college two blocks away from where his wife works. When Student’s mother does not drive him to school, she takes the train to work. (T. at 154-158)

testified (T. at 160-172) that she is the head teacher at Academy. She has a master’s degree in education, and is certified in general and education, and in autism. She uses education in her classroom, where Student is taught. She uses small group instruction for reading and math, hands-on activities, differentiated instruction, technology and interactive activities. At Academy, Student receives push-in , counseling and / therapy. As testing accommodations, he gets extended time, can record his answers in any manner, can have directions read aloud, and can use a calculator for some math work. Ms. discussed the variety of ways used to teach Student in order to address his difficulties with or . She described what she does to address his difficulties with reading or written . She described what she does with respect to classroom design to address Student’s difficulties being organized. Based upon Ms. ’s observations of Student having a hard time transitioning from one class to another and in consideration of Student’s and executive functioning needs, Ms. does not believe Student has the ability to take public transportation without adult supervision. (T. 160–165)

On cross-examination, Ms. indicated that the size of Student’s classes do not exceed nine of the 18 students in grade , and that the other eight pupils in any of Student’s classes all have IEP’s for a variety of disabilities, and some are on the spectrum. At any given time during the day there are two or three teachers in Student’s room. They are education teachers or related service providers. All students at Academy, a education school, have IEP’s. When Student arrived at Academy, Ms. reviewed his April 13, 2010 DOE IEP. Academy follows the goals of DOE IEP’s, but also writes its own goals. There is no less restrictive class at Academy for the current year than the one Student is in. (T. 165–172)

I conclude the DOE did not violate Education Law 4402 for the 2010-2011 school with respect to providing transportation between home and Academy because the services or programs at Academy are not similar to the education programs recommended for him in the April 2010 CSE review. There were similarities in a few respects. For example, both and the CSE review give Student and testing accommodation, although to a greater degree at . But consideration of the general education program with SETSS, as detailed in Dr. ’s testimony, compared to the extensive and more restricted education services at , as detailed in Ms. ’s testimony, make clear the dissimilarities of the two settings. follows the goals of the IEP, but goes further by writing additional goals. The IEP recommended general education where Student would be in a classroom with one general education teacher with 20 or so students, not all of whom would have IEP’s,. This is in stark contrast to where Student is in a classroom with two or three education teachers or service providers for nine students, all of who have IEP’s. The setting in is much more restrictive than what the CSE recommended and what Dr. concluded was appropriate. The two settings, and what the CSE recommended, stand in sharp contrast and are not “similar” in any ordinary or other sense of that word, which is not defined in the statute or analyzed or explained in decisions.

The decisions offered by both parties showed there has been little analysis in other cases of what “similar” means in 4402. I disagree that SRO Decision 07-073 (Exhibit J) leads to a finding in this case that Student attends Academy for the purpose of receiving services or programs similar to education programs recommended for him by the CSE committee in the April 13, 2010 IEP. The State Review Officer’s decision notes that, in contrast to the case before me, there was little evidence in the record with respect to the transportation claim, and that the essence of petitioners’ argument, made pursuant to Education Law 4402, remains largely unaddressed. (Exhibit J, page 15) The discussion in the SRO decision does not discuss what is meant by the word “similar” in 4402, an issue central to the instant case. The decision in IHO no.

, cited by Parents, and in IHO no. , cited by DOE, do not provide a definition or standard for analyzing whether a school setting is similar to CSE recommendations. What seems called for is a common sense comparison of the two situations, as I have done here.

The other legal argument concerning transportation involved in the instant case is possible entitlement under New York Education Law 3635 and the Chancellor’s Regulation and OPT policies that Mr. testified effectuate the statute in New York City. His testimony left little doubt that in Student’s situation he was entitled to a Metrocard and only to that. His testimony was uncontradicted that Academy was sent enough Metrocards pursuant to established and regular procedures so that it could have given one to Student or asked for more to provide him one. But Parent’s testimony that Student did not actually receive the card was uncontradicted as well. It is not reasonable to hold DOE responsible to ensure that Student received a Metrocard until it learned that he did not receive it. The record does not indicate that DOE knew or should have known Student did not receive a Metrocard until the date of the impartial hearing. Once DOE had such knowledge, it became responsible to get him one or reimburse his parents for the balance of the school year up to the level of what a Metrocard would cost, even if they in fact pay more for other modes of transporting Student.

Order

Parents’ request for an Order directing the DOE to provide Student transportation between home and Academy for the 2010-2011 school year pursuant to New York Education Law 4402 or other law, and to reimburse Mr. and Mrs. for Student’s transportation expenses for the 2010-2011 school year is denied, except to the following extent: DOE is ordered to take action necessary to ensure that Student receives a Metrocard for travel between home and Academy as of May 31, 2011, the date of this impartial hearing, when the DOE knew that Student had not received from Academy a Metrocard that DOE sent to that private school that would provide Student the full-fare transportation he was entitled to; or to the extent DOE does not provide Student with a Metrocard for the balance of the school year, DOE shall reimburse Parents for the value of their transportation expenses for Student, up to the level of what a Metrocard would cost, from May 31, 2011 until the end of the school year. Dated: June 15, 2011

____________________________________

DAVID BASS, ESQ.

Impartial Hearing Office

DB:dl

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 31, 2011

PARENT

A Impartial Hearing Request, 2/10/11, 4 pp. B IEP, 4/13/10, 8 pp. C School Contract, 9/13/10, 1 p. D Parent correspondence to CSE, 8/23/10 & 10/6/10, 2 pp. E New York Education Law Section 4402, 2011, 14 pp. F New York Education Law Section 3635, 2011, 4 pp. G MapQuest Map, Undated, 3 pp. H HopStop Map, Undated, 3 pp. I 34 C.F.R. Section 300.107, 2011, 1 p. J Application of a Child with a Disability, SRO No. 07-073, 8/15/07, 16 pp. K Transportation Expenses, 2010 – 2011 & Undated, 32 pp.

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 2/10/11, 3 pp. 2 Due Process Response, 2/18/11, 3 pp. 3 IEP, 4/13/10, 11 pp. 4 Final Notice of Recommendation, 5/3/10, 1 p. 5 Initial Social History, 12/1/08, 4 pp. 6 Teacher Report, 1/7/09, 2 pp. 7 - Evaluation, 1/8/09, 3 pp. 8 Teacher Report, 3/3/10, 2 pp. 9 Confidential Psycho-Educational Report, 12/1/08, 4 pp. 10 Therapy Evaluation, 1/14/09, 5 pp. 11 Classroom Observation, 1/7/09, 3 pp. 12 Confidential Neuropsychological Evalation5/31/10 & 6/21/10, 25 pp.

13 Academy Student Reporting System, Year 1; Term 2, 8 pp.

14 Academy Student Reporting System, Year 1; Term 1, 8 pp.

15 New York Education Section 4402, Undated, 11 pp.

16 Standard Operating Procedures Manual and Cover Sheet, Undated, 2 pp.

17 Regulation of the Chancellor Number A-801 Cover Sheet, Undated, 1 p.

18 Regulation of the Chancellor Number A-801, Undated, 17 pp.