Impartial Hearing Decision

STATE OF NEW YORK NEW YORK STATE EDUCATION DEPARTMENT In the Matter of a Petitioner Case No. S| against Respondent.

Hearing Officer’s Finding of Fact and Decision

Introduction & Procedural History:

This hearing was requested on November 3, 2011(H 6)', oy iii Educational Advocate, for the foster parent, a of (“STUDENT”).’ The hearing was requested, pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), §§1415 (f) & 1412 (a) (10) (C). The hearing request states, amongst other things, that the parents are seeking special transportation as a related service for the 2011/12 school year (July 1, 2011 through June 30, 2012) from the STUDENT’s home to school. The petitioner was represented by ' See Due Process Complaint dated November 3, 2011 as Hearing Officer Exhibit H 6. References to the hearing exhibits submitted by the Impartial Hearing Officer are cited with the prefix “H” followed by the appropriate exhibit number. References to hearing exhibits submitted by the Parent are cited with the prefix “P” followed by the appropriate exhibit letter. References to the hearing exhibits submitted by the District are cited with the prefix “D” followed by the appropriate exhibit number. Specific Transcript references are noted as “Tr. ” followed by a forward slash for the Line number then the actual Page Number, for example “Tr. 3/13”. * For confidentiality the student shall be referred by his initials and/or STUDENT.

the Respondent, the District, was represented >y The record close date is February 27, 2012 for this matter. A prehearing conference on the record was held via teleconference between the parties on December 8, 2011. The hearing commenced pursuant to IDEIA §1415 (f) and §504 on December 21, 2011, and continued on January 9, 2012 and January 12, 2012. Appended to the record are lists of exhibits admitted into evidence and the persons in Mittendance} along’with the witnesses noted (“Exhibit H 6”), “*,

Background:

| (hereinafter referred to as | | or “STUDENT” is a 9 year old boy where he TT a: legal custody of the child and ii is the foster parent and she has physical custody of the child (“Parent”). Tr. 20/1-4. A Due Process Complaint was filed by the agency dated November 3, 2011. The STUDENT has attended the District programs since the mid school year of 2008-2009. Tr. 361/21. That is when the Parent obtained physical custody of the STUDENT. Id. The Parent resides within the boundaries of the District. This current school year the STUDENT attends his neighborhood school. Tr. 91/2. The STUDENT has been classified by the District as GE since the May 31, 2011 CSE where the ee: the Parent provided documentation to support this classification. D 2. At this same CSE, Extended School Year Services (“ESY”) was provided and special transportation was noted for the ESY program only. See D2 and D1.

Prior to that classification, the STUDENT was classified as P| as his cognitive testing indicated a score of 44. D11. In addition to his diagnosis of I and cognitive impairments, the STUDENT is diagnosed with | | and (~The STUDENT’s classification and diagnosis is not at issue in this matter. The STUDENT attends a self contained classroom and receives related services (HE Therapy and ee Therapy described in detail herein). D1. The STUDENT takes GE foc bis HB anc The District is considered a walking district and it does not provide transportation for those students who live less than 2 miles from their neighborhood school, or to the school the student in which the student is educated unless the disability requires it. D 24. The STUDENT attends his neighborhood school less than 2 miles from where he lives and his current educational program does not provide for special transportation during the regular school year, only special transportation during extended school year services. D1 & D2. This is the basis of the hearing, whether the STUDENT requires special transportation as a related service to benefit educationally. At the pre-hearing conference held on December 8, 2011 the parties notified this hearing officer that the Resolution Session was waived by the parties; the District objected to iii _ and or the foster parent filing the Due Process Complaint as there was no signed designation at that time by the natural father at the time the Due Process Complaint was filed. See D 21, D22 and D23. The parent designation form notes a 6 month period. Id. During that conference, this hearing officer requested that the Parent’s counsel try to obtain a designation covering a gap between the parent designations that covers the time the Due Process Complaint was filed. Tr. 31/21- 24. The initial day of hearing commenced on December 21, 2011 and continued on January 9, 2012 and ended on January 12, 2012. At the first day of hearing, no signed designation was provided by the Petitioners and 1 | testified as described herein as to the agency’s attempts to obtain a signed designation for the period in question. Initially the parties agreed upon submission of closing arguments and record close date scheduled for February 10, 2012 and a decision rendered by me on February 28, 2012. On February 2, 2012, this hearing officer was notified that the parties agreed to an extension of the closing arguments/record close date to February 17, 2012 to which I notified the parties that I will be away on February 17, 2012 and I offered that the closing arguments and record close date to be either set for February 16, 2012 before I leave on vacation or February 27, 2012 as to when I come back. Counsel for both parties requested to the February 27, 2012 date for the closing arguments and the record close date. As such, I rendered my decision within the two (2) weeks after the record close date, March 12, 2012.° The evidence marked and admitted as Hearing Officer Exhibits include: e Parent’s Memorandum of Law dated January 5, 2012. H 1. e District’s Memorandum of Law Regarding Pendency dated January 6, 2012. H 2. e District’s Memorandum of Law Regarding Standing dated January 6, 2012. H 3. e Due Process Compliant dated November 3, 2011. H 4. 7A copy of the email correspondence is attached and made part of the record herein as Exhibit H 5.

Email correspondence for extension of record. H 5. List of Parties and Witnesses. H 6 Closing Statement on Behalf of the District. H 7 Petitioner’s Closing Statement. H 8. February 29, 2012 District Counsel letter to this hearing officer with Petitioner’s : 44 counsel response via email’. H 9. The documentation, evaluations and or progress reports provided by the Department of Education (“DOE”) were: The IEP dated October 27, 2011 for the 2011/12 school year for the STUDENT. The classification is | | twelve month school year; 12:1+2 special class with related services (QM Therapy (1 x30 6 day cycle 1:1 & 1x 30 6 day cycle 1:5); ee 3x30 1:3 in 6 day cycle); Parent Counseling-Small Group undefined (3 x yrly., 1 hr.)). The summer services were noted as Special Class 12:1:4 with related services as EE Therapy (1x 30 wkly 1:1) and P| GE Therapy (2x 30 wkly 1:1). Comments include: Functional Behavior Assessment Underway. Student tantrums in the afternoon. On the page 10 of 10 under Special Transportation — Transportation Recommendation to Address Needs of the Student Relating to his/her Disability, it is noted “Student needs special transportation accommodations/services as follows: Type of Transportation — ESY Trans. Door to Door.” D 1. Ricca ; ; , , This hearing officer received the correspondence on March 2, 2012 via email to which the Petitioner’s counsel objected to via email.

IEP dated 5/31/11 for the 2011-2012 school year is generally similar to D1 in the summary of programs and related services and under both IEPs Management Needs, it states has significant delays and requires a small teacher-to-student ratio program with minimal distractions in order to academically progress. requires additional assistance to function in the educational setting. EE requires the use of a timer and many warnings to help with transitions.” In addition, it was noted in the comments that it was considering the GE information provided by the agency regarding diagnosis and classification P| D2: May 19. 2011 EE ssessment by MD, which is based upon family report and observation in the clinic. In summary the report indicates that TE is evident along with the WE Disorder and recommended that the classification be changed to ae i. order to provide the strategies to address the student’s needs; the student has a very severe language disorder that requires intensive individualized intervention; and recommended ongoing treatment as the student has {J behavioral and emotional difficulties. D 3. A May 2, 2011 (BE Family Interview by Dr. Band ee SW, which documented a review of the cognitive testing and behavioral adaptive score, which indicated in the low range and other data based upon interview with the foster parent. D 4. The October 24, 2011 Teacher Report by a Mrs. a. which indicates that, amongst other things, that ai: highly distracted, hard time generalizing, needs constant adult reinforcement and redirection, able to complete some simple tasks independently after he has several opportunities of practice with an adult, shows great difficulty with self- control, at times displays non-compliant behavior, inappropriate social interactions with peers and teachers; difficulty with impulse control and difficulty with expressing his anger (full blown tantrum often erupts after a denial of a desired item), can work with teachers and peers in a small group and he has shown slow but steady progress during the two years with the teacher. D 5. e The [I school Summer Progress Report dated October 18, 2011 which stated that J displayed an adequate attention span that commiserates with his global developmental delays. D 6. = STUDENT’ s EE evaluation dated September 24, 2010 whereby a Vineland Adaptive Behavioral Scale was performed and it indicated an overall composite score of || which is a low adaptive level. D 7. e March 31, 2011 GE 0h c:2py Annual Review, which indicates, amongst other things that: [J “responds best to the transition when given a cue to prepare him”; the VMI test was administered that is used to assess the ability of visual and motor abilities, and from such, predict their skills and daily functioning. The student’s score for visual perception and motor coordination was | | D 8. e STUDENT’s Child Development and Social History signed and dated by the foster parent on May 26, 2009. The report indicates excessive habits as: tantrums, walking in sleep (slightly), bedwetting, head banging, child overactive, and tunes out and sometimes is not responsive and trips frequently. D 9. e March 9, 2009 Educational Evaluation performed by the district, which indicated is able to put on his own clothing and totally care for his toileting needs; had difficulty answering many questions and this may be due to his attentional issues or simply he did not know the answers and appears to have adequate gross motor abilities and is able to run well; kick, throw and bounce a ball; can follow one-step directions and tends to be very defiant and will follow directions only he wants to. D 10. e March 5-10, 2009 GE valuation performed by the district whereby a Standford Binet Intelligence Scales — 5" edition indicated the STUDENT’s IQ is 44 and the Adaptive Behavior Assessment System II (ABAS II) — Teacher Form indicated his Global Adaptive Composite (“GAC”) scores in the extremely low range; his conceptual, social and practical composite scores all fall in the extremely low range; exhibits tantrum behaviors; becoming more appropriate as he adjusts and he does best when provided with clear expectations within a highly structured and supportive learning environment. D 11. e February and March 2009: valuation, which indicates the STUDENT can follow 1 step directions by cannot follow 2 step directions and the following tests were administered: Peabody Picture Vocabulary Test, 4" ed, Preschool language Scale and Expressive

Vocabulary Test 2 and all these tests administered indicated a score of <1% or a Stanine of 1. D 12. e District’s medical report dated October 30, 2011, which indicates his vision, hearing and participates in Physical education and takes medication — Singular 5mg. D 13. © 12/13/10-6/24/11 IEP dated December 13, 2010. D 14.° © 07/1/10-06/24/11 IEP dated May 11, 2010. D15.° e Committee on Special Education/Meeting Attendance dated October 24, 2011. D 16. e Committee on Special Education/Meeting Attendance dated May 31, 2011. D17. e Committee on Special Education/Meeting Attendance dated December 13, 2010. D 18. e Committee on Special Education/Meeting Attendance dated May 11, 2010. D 19. e Prior Written Notice dated October 27, 2011. D 20. e Designation of Person in Parental relation by Parent for Purpose of Educational Decisions signed by i (natural father of a) dated 11/28/11; however the designation date begins is blank. D 21 Under Notations, the District agreed via stipulation to provide 2 day ESY services and Management Needs the student has significant delays and requires a small teacher-to-student ratio program with minimal distractions in order to academically progress. ° Td.

e Designation of Person in Parental relation by Parent for Purpose of Educational Decisions signed vy (natural father of | dated 11/28/11; however the designation data and the date is blank. D 22 e Designation of Person in Parental relation by Parent for Purpose of Educational Decisions signed oy i (natural father of mm) dated 6/2/10 with the designation length of six months. D 23 e District’s Student Transportation Policy adopted May 23, 1994. D 24 e Notice of Board of Education Review for Special Education dated June 27,2011, D25. e Notice of Committee on Special Education Meeting dated May 27, 2011. D 26. e Notice of Committee on Special Education Meeting dated May 3, 2011. D Di. e Invitation for a Resolution Session dated November 4, 2011. D 28. e District counsel letter to Parent counsel dated November 21, 2011 indicating the Resolution Session was waived by the parties. D 29. The Parent’s attorney provided amongst other things the following documents, evaluations, reports on the STUDENT: ® P| Assessment performed by ED ¢2t¢< March 18, 2011 on the STUDENT, which indicated his AXIS 1 as: MJ disorder, BE <onbined ‘rc I cisorcer, neglect of child, physical abuse of child; AXIS II Deferred, AXIS IT] GE Axis IV Severe and AXIS V. GAF off Recommendations included, amongst other things, continue medication, continue therapeutic services and close supervision at home due to his behavior. P A. e Letter to District’s counsel from dated November 15, 2011 indicating that the Parent received the notice of the Resolution Session the same day it was to be held and to re-schedule the Resolution Session. P B. There were three witnesses that testified on behalf of the DOE and, in order of appearance, in summary they testified to the following: a. Principal (in person) (hereinafter referred to as “Principal’’) : Principal testified that: she was familiar with the STUDENT since his entry and she has seen him in the hallway, his self-contained classroom, self-contained specials, the lunchroom, and during recess and the STUDENT has made progress (Tr. 90); is dropped off early by the Parent unescorted (Tr,96/9) and he is dropped off across street or around the building (Tr. 96/12-22); not able to walk to school independently (Tr. 102/22) and he needs supervision (Tr. 102/25; he has no mobility problems (Tr. 104/6); she is unfamiliar with the street(s) would have to cross (Tr. 104/13-14); there are three (3) District a grade students that she is aware of that walk to school unaccompanied (Tr. 105/8); she is not aware of the STUDENT ever bolting/eloping from classroom and or school (Tr. 107/9-18); he can follow 2 step directions (Tr. 108/15); she has seen the STUDENT walk independently to the nurse’s office and for ee 108/21-25); STUDENT can pose a danger when he drops to floor and bangs his head (Tr. 110/2-3); she never attended a CSE for the STUDENT (Tr. 145/12); as far as she knows the STUDENT has not been trained to walk to school (Tr. 136/2-6) and he could learn how with supervision (Tr.136/13-14). On cross (Tr. 120-122), Parent’s counsel redirected the Principal to various District documents that indicated a number of areas of need and contradicted her testimony (including, but not limited to: his communication deficits, his cognitive impairments, that he is highly distracted, has a hard time focusing and unable to follow 2 step directions) for the STUDENT as noted in his current IEP (D 1) and the recent teacher report dated two months prior (D 5). The Principal also testified later in the hearing that the STUDENT has no attendance concern as it is “solid” (Tr. 507/17) and that she observed the STUDENT at the tail end of a tantrum and he stopped upon her intervention (Tr. 510/2-10). It was surmised that he was confused in his daily school routine after the holiday break where it was reported that threw his schedule down, tossed himself to the floor, knocked a chair over and a staff member’s hair was pulled when she tried to assist the STUDENT. Tr. 510/19-25. = ~~ Special Education Teacher (in person) (hereinafter referred to “Special Education Teacher”): The Special Education Teacher testified that she has been employed as a special education teacher with the District for the past 15 months (Tr. 157/24-25); taught the STUDENT for the 2010-2011 and the 2011-2012 school years in the self contained classroom (Tr.159/24-25); the classroom is highly structured with established routines (Tr. 160/10-17); STUDENT is making progress and he looks for the schedule (Tr. 161/22-23); classroom uses a lot of pictorial and cues to assist fi to transition (Tr. 162/7-9); his tantrums was when he was missing medication for a few weeks and once he receives his medication i: able to follow instructions (Tr.163/8- 13); her class is language based (Tr. 168/14-18); he can attend with aide and a lot of visual supports and timer(Tr.170/14-16); District asked her to prepare the report for the CSE (Tr. 171/13); she recommended head phones for the STUDENT to assist in concentrating (Tr. 172/22-24); sees Parent every day who picks up the STUDENT and the STUDENT runs up to Parent and they walk out together (Tr. 188/3-5); the Parent and STUDENT walk independently to the car (Tr.188/13-15) ; however she has never seen the STUDENT enter the car independently (Tr. 188/18); STUDENT has informal behavioral plan that is a checklist (Tr. 190/19-23); uses headphones in the hallway (Tr.195/3) and in large areas (cafeteria and gym ) that helps him focus (Tr.195/3-7); there are aides in the classroom that help him focus (Tr.195/18); there are 2 6" graders during recess and lunch that also assist (Tr. 197/6-7) and guide students to take turns (Tr.195/14- 15); she wrote the D5 report (Tr.205/13); STUDENT has been using headphones for 4 weeks now (Tr. 216/16) and he is unable to take them out of school (Tr.216/25); normal interactions during the classroom, {teacher coming in, door opening and closing, or overhearing a conversation going on in center are the noises that distract the STUDENT (Tr.218/2-8); he is inquisitive (Tr.118/22); becomes anxious in afternoon (Tr.219/10-13) ; on cross, Parent’s attorney reviewed the witnesses own report written 2 months prior (D 5) and the IEP (D 1) that indicates the STUDENT’s areas of need and his tantrums (Tr.202-222); she reported she only saw 2 tantrums this year when STUDENT was off medication (Tr.222/7-8). FY DISTRICT’s Interim CSE Director (in person (hereinafter referred to (CSE Chair’’)): The CSE Chair testified that he has been working for the District since October 2010 (Tr. 289/11)and the first CSE that he chaired for the STUDENT was December 13, 2010 (Tr.292/10); indicated and reviewed the District’s reports used (D11, D12 & D14) in developing the IEP (Tr. 299-305); how the CSE reviewed ihe evaluations (D3 & D4) and changed the classification to | aa 10/10) and how the EE «sting may be a low estimate because of his Autism (Tr/310/11-25); provided transportation to the STUDENT for ESY as per District policy (Tr.312/10-16); observed STUDENT 2 x in classroom and based upon his observation, i can follow directions (Tr. 317/22-23); STUDENT able to ambulate around the classroom (Tr.318/11-14); a: making strides (Tr.321/9-21); actual class placement for ij has | students enrolled with 3 adults (Tr.326/21); never observed outside of school (Tr.327/3); did not know of recent tantrum (Tr.340/25); District offers travel training (Tr. 342/24) but not ofl (Tr.343/3); Parent has to transport Bitisabled children (including fi to school and then takes a separate trip for a non-disabled student; never observed STUDEN wearing headphones (Tr.347/16); unable to answer whether the STUDENT could differentiate traffic colors (Tr. 347/25); and it indicates special transportation as everything is “special in the summer (Tr. 357/7). There were four witnesses that testified on behalf of the Parent and, in order of appearance, in summary they testified to the following: a. Social Work Supervisor (in person (hereinafter referred to as “Social Worker”)): The Social worker testified to the issue of the Parent Designation form and that the agency made several attempts (Tr.18/5); natural father had inconsistent contact with his children (Tr. 19/10) and when contacted the natural father signed the designated person form (Tr. 20/12-14). | Foster Parent (in person (hereinafter referred to as “Parent”): The Parent testified that she is the foster parent as designated through the agency (Tr.361/11) and has been since November 2008 (Tr. 361/21); she testified about how his disability i ee: needs to be constantly redirected) (Tr. 363/5-8) impacts him; takes a. focus and calm him (Tr. 363/13-17) and a keep him calm (Tr./363/16-17);he can be aggressive (Tr.363/25); he has outbursts(Tr/364/5-6); it has decreased a lot where he has 2 x per wk where he head bangs real hard and she uses a pillow(Tr. 364/10-17); recently had another tantrum in school a few days prior (Tr.366/7- 8); she received a written report from the teacher (Tr. 366/-13-15); it was reported he had a bad day, went underneath the chair, pulled the aide’s hair (Tr.367/17-21) and he threw chair (Tr.368/13-14); | would have to cross at least 3 streets (Tr.369/20); no traffic control en route to school — there is traffic, which is usually cars, including ones bringing students to and from school (Tr.369/23-25); not safe for him to walk as he likes to run and when he runs and walks he looks down (Tr.370/16-21); he doesn’t know whets dangerous (TR.371/20-25); he will go to everybody (372/12-13); if he were to have an outburst he will bang his head on the pavement (Tr. 373/21-25 — 374/1-2); can’t hold his hand and he will pull it away (Tr.374/5-11); in the morning she drops him off 10’ from the door (Tr.384/3); he wants to go to school and it is much easier to drive him rather than walking as it does not go well if walking (Tr. 388/15-20); she makes it her responsibility to get [J to school (Tr.389/15-16); medicine did run out in the October 2011 but it was for 1 to 2 days as the pharmacy did not have a supply(Tr. 393/3-6); and she did not remember if she received the Procedural Safeguards Notice (Tr.395/4-5). es Educational Advocate (in person (hereinafter referred to as “Advocate’’)): Advocate testified that she is employed by S| GE services as the educational advocate (Tr.397/5-6); she is familiar with the STUDENT and he struggles with [Mand he has cognitive impairments (Tr.403/6-7); without transportation STUDENT would not have access to school (Tr.403/25 — 404/2-4); the District has travel training (Tr.407/6-7); her opinion is that his disability impacts him to access school (Tr. 420/17-22); aware of his disability, behaviors and tantrums and familiar with his needs as she is the educational advocate (Tr. 408/15- 18); STUDENT is a runner and there is no other way for him to get to school (Tr.415/18) as it would be dangerous for him to walk (Tr.416/15-16). eS 5...) i person (hereinafter referred to as “Therapist”)): The Therapist testified how the STUDENT has been coming to her weekly since May 2009; the Parent brings him 1x week (Tr.471/15); STUDENT has made progress but still difficult to engage and he tantrums to she uses a pillow under his head (Tr.471-24-25 — 472/1-9); each session is 30 to 45 minutes (Tr. 473/2-5); difficulty accepting “no” (tr.474/10-25); difficulty with transition (Tr.475/15-18); he has a inability to process, focus and follow through (Tr.481/21-22); familiar with recent tantrum as he just got back from holiday and he likes school and Ms Bout he could not hold it to together (Tr.485/2-18); getting concepts of rewards (Tr. 486/15-16); needs to continue therapy (Tr. 488/2); difficult to manage (Tr. 493/13) and he has poor adaptive skills (Tr. 497/11); seen him have trouble navigating her office where he will cling to walls and dart out (tr.500/3) or sit on stairs in a tantrum and refuse to leave the building (Tr.500/8-12); never observed STUDENT in school (Tr. 497/499/2); she has contacted STUDENT’s special education teacher (Tr. 505/18-19).

Parties Positions:

A. The District’s Position: The District argued that: e The Petitioners did not have Standing to file the November 3, 2011 Due Process Complaint as the GE A gency and or the foster parent did not have a signed designation at that time; and, e The District argues that the STUDENT was not entitled to Special Transportation as there is no indication from any observation and or evaluation that the STUDENT disability impacts his ambulating to and from school. Tr. 318/11-14. Further that the CSE properly considered the STUDENT’s mobility, behavior, communication, physical and or health needs when determining whether the STUDENT required special transportation. H 7. The Parent’s Position: | The Parent argues in its closing argument that: e To continue to deny the STUDENT special transportation violates the federal, state and District’s own Transportation Policy. It is a denial of a free appropriate public education by denying the STUDENT special transportation as his disability requires it. H 8. In addition, counsel indicates that the Parent can be reimbursed for her transportation. See 1" p. 38 of H8.

Findings of Fact and Conclusions of Law:

Standing:

First, I must address the Standing issue that was raised again by the District’s counsel. As previously decided the Petitioners have and had standing to file the due process complaint. To reiterate, I find nothing in the record to indicate that in the Part 200’s of the New York State Regulations of the Commissioner, specifically §200.1(ii)(2)there was any indication otherwise that the EE 32-0: and the foster parent cannot act as the Parent in this case. Again the Petitioners attended all CSE meetings for the STUDENT (See D1, D2, and D14 & D15), the District addressed all correspondence and meeting notices to her (D25, D26 & D27). To consider the District’s argument that agency and foster parent did not have Standing for educational decisions, then the District is alleging that the CSE did not have the appropriate members at the meeting(s) and the District did not provide the proper notices as procedurally required to the parent. If I found this in this case than I would consider this a procedural violation that is of a substantive level that rises to a denial of a free appropriate public education. Again, I find the agency and the foster parent had Standing. In regard to the Petitioners’ signed designation contained in his closing brief and District counsel’s objection’, as indicated, I requested the Petitioner to provide this forum with a signed designation as requested by District counsel during the pre-hearing conference. Further, testimony by the Po agency and its counsel indicated that the natural father was difficult to reach and he was in fact inconsistent with his parental visits to the STUDENT. I consider the additional signed designation not material to my original decision as to the Standing issue but more reflective of my original findings that indicate there is nothing on the record that indicates contrary that the Petitioners can act as the Parent. ‘ Likewise, I do not find that the page length requirement hindered District counsel’s ability during the hearing and or in her closing argument to represent her client or provided an advantage to the Parent counsel. I find the Parent’s Counsel brief contained a lot of restating of the Commissioner’s Part 200’s regulations, such as the definitions not decisive in my review..

Free Appropriate Public Education:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v.

Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walezak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][S][A]; 34 CFR. §§ 300.114[a][2][iJ, 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walezak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101 [c][1]; 8 NYCRR 200.4[c][5]). Based upon the review of his IEP’s and evaluations, there is no question that GB needs special education and it impacts his ability to learn and function. District argues that his disability does not impair him to ambulate and that his attendance at the school is solid so there is no impact. I find that the STUDENT’s disabilities does in fact impact and impair him. He is multiply disabled. All documentation and evaluations that include standardized testing support this. The GE center report, which the CSE reviewed and made its determination about changing his classification, indicates that he is severely mentally retarded; he is | Ew has significant language impairment. Contrary to the District’s assertion that the STUDENT is no longer considered with an ES 1344/2). Further, testimony that the tantrums were allegedly due to lack of medication is contradicted by the STUDENT’s recent tantrum. Last, I find the Parent’s testimony indicative of one, who diligently uses her best efforts to get the STUDENT to school every weekday and to attend his weekly outside therapy sessions as the STUDENT needs it. Because of these efforts to do so, I find the District’s argument that attendance is solid and there is no impact is not persuasive.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4{d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320{a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087). The IDEA specifically identifies transportation, including any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[22]; 34 C.F.R. § 300.24[a], [b][15]). In addition, New York State law defines special education as "specially designed instruction...and transportation to meet the unique needs of a child with a disability" and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1], 4402[4][a]). Transportation includes transport to and from school, between schools, as well as travel in and around schools. It includes specialized equipment (e.g. special or adapted buses, lifts and ramps) if required to provide specialized transportation (34 C.F.R. § 300.24 [b][15]). Specialized transportation must be included on a child's IEP if required to assist the child to benefit from special education (34 C.F.R. Part 300, Appendix A, Section IV, Question 33). When making determinations about a student's transportation needs, CSE's are encouraged to include input from transportation personnel (34 C.F.R. Part 300, Appendix A, Section IV, Question 30). The nature of the specialized transportation required for a particular child depends upon the child's unique needs, and it must be provided in the LRE (34 C.F.R. § 300.306, 300.533). Safety procedures for transporting students are primarily determined by state law and local policy (See OSEP Policy Letter to McKaig, 211 IDELR 161 [1980]). A CSE should consider whether the student required special seating, specific vehicle and/or equipment needs, adult supervision, or if a special type of transportation or other accommodation was needed in determining whether to recommend special transportation (id. at pp. 185-86). Based upon those considerations, no one from the District “walked” the route ij would in fact take if he walked it. No one from the District could indicate what were the actual traffic patterns, traffic signs and or traffic lights, whether there was a fire house along the route that the STUDENT would encounter. The CSE Chairperson stated that the student did not require special transportation based upon the CSE’s determination at the October 27, 2011 CSE. I reviewed the IEP (D 1) and nothing in the IEP is reflective of this consideration. In fact, a comparison of the D1 and D2 indicates at the October 27, 2011 CSE meeting was the additional report by the teacher’s D5 and on page on page 4 of the IEP, it indicates that the STUDENT needs a Behavior Intervention Plan. D 5 that was used at this CSE indicates, amongst other things, that the STUDENT has a hard time generalizing learns best by repetition and needs many opportunities to practice. There is a no indication on the JEP that at the CSE, the District even considered transportation, along with assessing | | needs. The reports and evaluations that were used in D 1 do not support the District’s staff members’ testimony. There are safety concerns due to his disability where his behavior, communication, health and management needs require adult supervision that is trained, along with travel training to the STUDENT. The District has only observed in a structured setting. Further, I do not understand that the STUDENT needs “special” transportation during the summer but not during the regular school year. The IEP is silent about the specific recommendations required when transporting the STUDENT. D 1. In the March 2005 Memorandum by Rebecca H. Cort, Deputy Commissioner for Vocational and Educational Services for Individuals with Disabilities®, it states: “While most students with disabilities receive the same transportation services as nondisabled children, it is the responsibility of the CSE or CPSE to determine whether the student’s disability prevents the student from using the same transportation provided to nondisabled students, or getting to school in the same manner as nondisabled students. In developing recommendations for special transportation, the CSE/CPSE should consider and document the needs of the student relating to his/her disability. For example: ¢ Mobility — e.g., nonambulatory wheelchair bound. ¢ Behavior — e.g., fearful in noisy environments; self-abusive; runs away; cries frequently. ¢ Communication — e.g., hard of hearing; nonverbal; limited understanding of questions and directions; non-English speaking. ¢ Physical — e.g., needs assistive devices to maintain a sitting position; needs assistance walking and going up and down stairs. ¢ Health needs — e.g., has seizures; fatigue — may fall asleep on bus, requires oxygen equipment; use of an inhaler. The IEP must include specific transportation recommendations to address each of the student’s disability-related special transportation needs, as appropriate. It is not appropriate for the IEP to simply indicate, “special transportation needed,” without including the nature of the special transportation. The IEP provides drop-down options 8 See (http://www.oms.nysed.gov/medicaid/services/transportation/Cort_Special_Transportation.pdf):

for documenting a student’s special transportation needs. After selecting the category of the special transportation needs, the IEP must document the specific nature of the recommendation. For example: e Special seating - such as seating away from the window; e Vehicle and/or equipment needs - such as a lap belt or safety vest; e Adult supervision - such as specialized training for the bus driver or a one-on-one bus attendant for a designated purpose; e Type of transportation - such as a small bus with few students; and e Other accommodations - such as permission to use a personal electronic device. In addition, the IEP must indicate if the student needs transportation to and from special education services to be provided at another site. Most students with disabilities receive the same transportation services as students without disabilities. The CSE and CPSE are responsible for determining whether a student’s disability prevents him or her from using the same transportation or manner in which to get to school as students without disabilities. In determining whether to include special transportation on a student’s IEP, the CSE and the CPSE should consider and document the needs of the student. The IEP must include specific transportation recommendations to address each of the student’s needs, as appropriate. Factors in the decision-making process include the student’s mobility, behavior, communication skills, and physical and health needs.” In the due process complaint notice, the Parents did allege the STUDENT requires special education transportation as the STUDENT has global development delays, PF cognitively impaired and requires medication; further the agency staff members indicated that it was a risk to the STUDENT as the foster parent indicated the STUDENT was a runner, had no concept of danger and or boundaries. H 4. I will note that H 4, it does not indicate what particular services relating to transportation that the STUDENT needed except to receive transportation door to door. I find that this is not necessary to specify the all needs and services to be considered in providing transportation. Considering the record, the STUDENT needs to have special transportation that addresses his behavior, impaired communication, sensitivity to noise and health needs as it relates to asthma. These areas of need may require special seat belt, bus driver training, and or special seating. Addressing the remaining areas of disagreement between the parties, I find that the parents’ request for reimbursement in the Parent’s counsel closing brief directing the district to reimburse the Parent for the transportation to and from is denied. First, the parents failed to raise this allegation in their due process complaint notice. A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3]fi], 300.511[d]; 8 NYCRR 200.5[j]{1][ii]) or the original due process complaint notice is amended prior to the impartial hearing per permission given by an impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415{c][2][E][iJ[]; 34 CFR. § 300.507[d][3] [ii]; see Saki v. Hawaii, 2008 WL 1912442, at *6-*7 [D. Hawaii April 30, 2008]; see also A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 215-216 [D. Conn. 2006] aff'd, 2007 WL 3037346 [2d Cir. October 18, 2007]; A.B. v. San Francisco Unified Sch. Dist., 2008 WL 4773417, at *9 [N.D. Cal. Oct. 30, 2008]; Application of a Student with a Disability, Appeal No. 09-034; Application of a Student with a Disability, Appeal No. 08-130; Application of a Student with a Disability, Appeal No. 08-102; Application of the Dep't of Educ., Appeal No. 08-037. In addition, Parent’s counsel was given opportunity to provide the required notice as required by the State of New York’s Procedural Safeguards Notice and or to be considered for an exemption, such as the Parent did not receive any Procedural Safeguards Notice. Although the foster parent indicated she was unsure whether she received any such notice, the District provided correspondence to indicate otherwise. D 25, D 26, D27. I find nothing in the record that indicates that the ten day notice was filed and or the Parent qualified for an exemption. In this case I considered the testimony of the witnesses and the evaluations used at the October 27, 2011 CSE in order to decide whether [if received a free appropriate public education when the District denied special transportation as a related service and I find that the District failed to provide a free appropriate public education to the STUDENT at the October 27, 2011 CSE.

Order:

IT IS THEREFORE ORDERED THAT based upon my findings herein I find that the Parent’s request for special transportation s a related service for the STUDENT is granted and I direct the District to develop the STUDENT’s IEP in accordance with the March 2005 Memorandum by the New York State Department of Education by specifying the recommendations needed to address his needs. In regard to reimbursement to the Parent, while I find the Parent’s efforts commendable, I deny the reimbursement as indicated infra. Along with any cost and fees (20 USC 1415 (i) (3) (B) (C)) be granted to the Parent in line with the prevailing arguments.

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.” (SNYCRR279.2[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. Dated: March 8, 2012 Impartial Hearing Officer