New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: March 12, 2012

March 16, 2012 Actual Record Close Date: March 26, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 12, 2012

Parent (via telephone) — Student

Attorney (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2012

Father — Student

Friend — Student

District Representative — DOE

Teacher (via telephone) — DOE

Employee (via telephone) — DOE

INTRODUCTION

On February 23, 2012, an impartial hearing was requested by the parent. The proceeding was commenced pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a FAPE to G.K. (“the child “) for part of the 2011-2012 school year. No extensions were necessary. The hearing was held at the Department of Education located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 1:00 p.m.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

A motion to schedule was set for February 6, 2012. A pre-hearing conference was held on March 12, 2012 . The hearing was then scheduled for March 16, 2012 at 1:00pm. The hearing commenced and was completed on March 16, 2012.

The sole issue in this case is whether the parent’s is entitled to a bus transfer for the child back to her original bus number after he was informed by the Office of Pupil Transportation (“OPT”) that the child’s bus would be changed.

THE PARENT’S POSITION

The parent contends that the DOE denied the student a FAPE by abruptly changing her bus and her bus route in the middle of the school year because his duaghter, who is does to , . As such, the parent contends that he in entitled to have the child transferred back to the old bus and the old bus route.

THE DOE’S POSITION

The DOE contends that the child does not have a right to remain on the old bus and that despite the change, she is being provided a FAPE.

EVIDENCE PRESENTED

The child is a who attends She is classified as . (DOE’s Ex.1) She is a - student. (DOE’s Ex. 3.1) She receives transportation services as mandated on her IEP. Her most recent IEP also states that the child “tends to be ” and “experiences some and this can become the of her and for her and often her … .” (DOE

EX. 2.1) From the commencement of the 2011-2012 school year until February 27, 2012, the bus had been picking up the child at . On or about February 14, 2012, the DOE OPT determined that it was going to transfer the child as well as other children on the bus to another school bus to make room for another child and her paraprofessional.

(T. 79) Initially, the parent was notified of the change by telephone and the subsequently, he received a letter. (T. 79, 81) There is no evidence the establish when the call was placed or when the letter was sent. But, several witnesses confirmed that the parent knew that the change would take effect on February 27, 2012 sometime between February 14th and February 27th. (T.57, 79, 91) The change consisted of a change of bus, the driver, the children on the bus, the child’s seat and the bus route. (T. 79-81)

, the person in charge of Operation and Safety including busing for the school

(T. 31, 34), testified that the father contacted him sometime in mid-February to express his concerns about the bus change. (T. 35-36) Mr. contacted the OPT on the father’s behalf. (T. 37) He was told that with the addition of a student and a para, the bus would be so a decision was made to transfer students to another bus. (T. 38-39, 45) He testified that the new bus arrives at the school minutes late. (T. 39) On the second day after the change, the driver called the father to tell him he was and the father took the child to school. (T. 51) Mr. said that he sees the child in the morning and she does not seem at this time. (T. 41)

testified that he is the person who determined that the child’s bus should be changed. Mr. has only been in his current position since June 2011 (T.55) . He has received no training from the DOE regarding special education related issues. (T. 68) He testified he did not know the child at all and he did not know the nature of her at the time he made the decision. (T. 66-67) He stated that was when the OPT decided to add a new student to the bus. He said that the of the bus was persons. ( T. 59, 72) He testified that the new bus also had a capacity of (T. 72-73) persons and that a child was added last week. (T. 77) In contrast to Mr. , Mr. stated that the new bus arrived at the child’s school no later then and was on time. He stated that lateness of the school bus would be . (T. 58)

He said that the reason for the change was solely due to changes in the numbers of children on each bus. (T. 60) He stated that there was no safety reason that the child could not be transferred back to bus number . (T. 76) He also testified that now has children, in excess of its capacity. (T. 77)

Mr. , the father of the child, testified that the child is “ ” by and that . (T. 82, 86) She requires as much notice as possible before a . (T 106) He said that her school day has been effected by the change as well as her time spent at home. The child is prone to which are by . Any kind of her . (T. 98) She will , make a and that she her . (T. 86) She has and has . (T. 88) She has a much better in the her friend . She has the . (T. 87)

Mr. is a family friend who is also the parent of an child. He is familiar with the child and had seen and heard her about the of her school bus. (T. 108, 110) He said that he has seen the child for hours and hours. (T. 111) He testified that no two children with are alike. (T. 87)

Finally, the father submitted documentation from the child’s doctor dated March 13, 2012 who wrote that the child “exhibits a great deal of and stress. In the doctor’s opinion, the original bus transportation should be provided to the child as soon as possible. (Parent’s Ex. A).

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes special education and related services specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8). A FAPE “begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, [and] provision for the use of appropriate special education services to address the child’s special education needs . . .” [Application of a Child with a Disability, Appeal No. 99-17]

There is no dispute that from September 2012 until February 27, 2012, the child was transported to and from school on the . In mid-February, to accommodate another student and her para and to avoid exceeding the person capacity of the bus, the child was suddenly transferred with short notice to another bus, . The person who made that decision stated that there would be no safety reason not to rescind the decision to transfer the child. In addition, at this time, the child’s new bus, is transporting students thus exceeding its person capacity. Thus, the original decision to transfer the child which was based upon bus capacity, no longer makes sense. The person who made the decision to transfer the child had no idea that the child was or that she .

In addition, the DOE failed to meet its burden to show that the “related service” of busing was in this case “specially designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP.” The IEP specifically points out the child’s and that she so that she on her school work when faced with change. The unrefuted evidence from the child’s doctor states that she is suffering from and and recommends that the child be permitted to return to her original bus. Not only was this factor ignored by Mr. , he did not even know the nature of her or try to find out what effect, if any, his decision to transfer the child to another bus would have on the child. The DOE presented no evidence from her teacher or from anyone else at the school to support that DOE’s contention that the change did not impact her school performance and did not interfere with FAPE. That was its burden which it did not meet.

Ordered that:

Within one week of the receipt of this order, the DOE shall notify the parent that they shall have the option of changing her bus back to bus . If the child chooses to do so, the parent shall notify the DOE, OPT, as soon as possible and the OPT shall arrange for the transfer within one week of the date that they are notified that the child wishes to transfer back to . Dated: March 29, 2012

________________________________

Impartial Hearing Officer

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

PARENT

A Letter from Dr. , 3/13/12, 1 p. B Letter from Dr. , 3/13/12, 1 p.

DEPARTMENT OF EDUCATION

1 Impartial Hearing Record Request, 2/23/12, 1 p. 2 IEP, 3/1/12, 13 pp. 3 IEP, 3/7/11, 15 pp. 4 Office of Pupil Transportation- Transportation Practices and Procedures Guide, 1/1/11, 1 p.