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: April 4, 2013

May 9, 2013

Actual Record Closed Date: May 21, 2013

Hearing Officer: Debra Siedman DeWan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2013

Attorney — Student

Parents

Teacher, Via Telephone — Student

Attorney — DOE

OPT Representative — DOE

Special Education, Via Telephone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 9, 2013

Attorney — Student

Parent/Mother — Student

Speech Therapist (Via Telephone) — Student

LCSW (Via Telephone) — Student

Attorney — DOE

INTRODUCTION

An impartial hearing was held before me in the matter of . on April 4, 2013 and May 9, 2013 at the Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). Lists of the persons who appeared at the hearing and of the documentary evidence that was submitted are both appended to this decision.

. The Committee On Special Education (CSE) held a review on January 17, 2012 and an Individualized Education Program (IEP) was developed. It was recommended that be classified as a student with a , that she be placed in an integrated co-teaching class, and that she be provided and as related services. The IEP did not mandate specialized transportation services. The parent disagreed with the recommendations made by the CSE and placed for the 2012/2013 school year. (Exh.A,B)

’s parent requested an impartial hearing to obtain specialized transportation services and/or suitable transportation to and from school. The due process complaint notice was received by the school district’s Impartial Hearing Office on February 21, 2013 and I was appointed to hear the matter on February 25, 2013. The resolution period was waived by the parties on March 7, 2013 and a motion to schedule was set for March 13, 2013 by a staff member in the Impartial Hearing Office. Both parties requested that the compliance date be extended and that the impartial hearing be scheduled for April 4, 2013 in order to accommodate the availability of the witnesses. I found good cause existed to schedule the impartial hearing more than fourteen days after the end of the resolution period, that there were compelling reasons to extend the compliance date, and that the delay would not cause undue hardship to the parties. Accordingly, the impartial hearing was scheduled for April 4, 2013 and the compliance date was extended by ten days, from April 22, 2013 to May 2, 2013. (Exh.I; Tr.4)

The impartial hearing was held as scheduled on April 4, 2013. When the impartial hearing convened, . appeared in person on behalf of her daughter and she was represented by , Esq. , Esq. appeared in person on behalf of the Board of Education of the City School District of the City of New York. The parties began the presentation of their respective positions, documentary evidence was submitted, and witnesses testified. The parties requested that the compliance date be extended and that the impartial hearing be adjourned in order to call additional witnesses. I found good cause existed to grant the adjournment, that there were compelling reasons to extend the compliance date, and that a delay would not cause undue hardship to the parties. Accordingly, the impartial hearing was adjourned to April 22, 2013 and the compliance date was extended by 18 days, from May 2, 2013 to May 20, 2013. (Exh.I; Tr. 113-114)

The school district requested that the compliance date be extended and that the impartial hearing be adjourned because Ms. had another hearing scheduled on April 22, 2013. The parent did not object. I found that good cause existed to grant the adjournment, that there were compelling reasons to extend the compliance date, and that this would not cause undue hardship to the parties. Accordingly, the impartial hearing was adjourned to May 9, 2013 and the compliance date was extended by 17 days, from May 20, 2013 to June 6, 2013. (Exh.I; Tr.119-120)

The impartial hearing reconvened on May 9, 2013. Ms. . appeared in person on behalf of her daughter and she was represented by Mr. . Ms. appeared in person on behalf of the school district. The parents completed the presentation of their case and the parties reiterated their earlier request that the compliance date be extended in order to for a transcript to be prepared and for a decision to be issued. I found that there were compelling reasons to extend the compliance date and that a delay would not cause undue hardship to the parties. Accordingly, the compliance date was again extended to June 6, 2013. I received a copy of the transcript on May 21, 2013 by first class mail and the record was closed. (Exh.I; Tr.159 )

POSITION OF THE SCHOOL DISTRICT

It is the position of the school district that it fulfilled its obligation to provide with a free appropriate public education in spite of the fact that it did not mandate that she be provided with specialized transportation as a related service on her IEP and that it fulfilled its obligation to provide her with suitable transportation in accordance with the law.

Towanna Soto, a special education teacher assigned to the CSE, stated she participated in the IEP meeting on January 17, 2012 that was held . There was no discussion at the meeting that would have indicated required specialized transportation services. The teachers that worked with her and observed her did not raise it nor did the parent request it or provide any documents that established that would have indicated that she required it. (Tr.34-60)

, special education compliance liaison for the Office of Pupil Transportation, noted a student is entitled to receive specialized transportation services when it is mandated on the IEP. The team would have had to have determined that the student had that warranted specialized transportation. If the IEP does not mandate specialized transportation services then the student is entitled to “stop to school transportation” on a bus if the child’s school participates in the program or, if it does not, the student is entitled to a full-fare MetroCard. Ms. noted that the does not participate in the “stop to school” program, and that approximately 450 of its students receive MetroCards. She also explained that this program is available to both public and private schools and that both public and private schools opt out of the program that the school district provides as a courtesy. She also noted that if the student was not mandated to receive specialized transportation, individual determinations are not made concerning what is “suitable” transportation. (Tr.61-97)

POSITION OF THE PARENTS

It is the position of the parent that the school district failed to provide with appropriate transportation services because specialized transportation services were not mandated on the IEP and because suitable transportation was not offered to her.

, in November 2011. At that time, she determined and lengthy verbal directions, drawing conclusions, using language for problem solving, processing information, and figuring out what to ask when she did not understand something. These may have affected her transportation needs if directions were unfamiliar, there was a disruption in the route, or if the bus broke down. However, Ms. said it would not have been anticipated that she would have traveled alone and that if she had an adult traveling with her, the adult could have helped her. (Exh.E; Tr.122-133)

difficulties include problems understanding and interpreting dynamics and in expressing her needs in an appropriate manner. She and is shy so she could easily get . She added that she did was with an adult on public transportation she would do fine. (Exh.G; Tr.134-145)

FINDINGS OF FACT

In 2005, the Supreme Court decided Schaffer v. Weast 377 F.3d 449, which held that the burden of persuasion in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district, unless the state law governing the child’s education provided its own scheme to govern the burden of proof and persuasion. However, in reaching this decision, the Court noted that it was only referring to the “burden of persuasion” (which party loses if the evidence is closely balanced) and not the “burden of production” (which party bears the burden to come forward with the evidence at different points of the proceedings).

In 2007, New York State amended Section 4401(1) of the Education Law to provide that school districts would now have the burden of proof in administrative proceedings to challenge the appropriateness of an educational program and placement for all cases commenced on or after October 15, 2007.

Therefore, in consideration of this analysis, I have determined that the school district has sustained its burden to establish that it offered a free appropriate public education with respect to the issue of transportation services.

In the first instance a student with a disability is entitled to specialized transportation services pursuant to New York State Education Law Section 4401 (1), which states, part, that: " ‘Special education’ means specially designed instruction which includes special services or programs … and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability.”

The State Review Officer stated that “…transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which be made on a case-by-case basis by the CSE.” (Application of a Child with a Disability, Appeal No. 12-082)

In March 2005, the New York State Education Department issued a memorandum stating: “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 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.” The list of factors included: mobility, behavior, communication, physical, and health needs. (Exh.L)

In this matter, the school district sustained its burden to establish that ’s disability did not prevent her from using the same transportation as nondisabled students. The evidence on the record demonstrates that ’s disability was a impairment, that she was addressed by the adult she was traveling with. The evidence also demonstrates that no information was offered at the IEP meeting to establish a need for specialized transportation services, that after the IEP was developed, the parent did not request that the CSE reconvene to reconsider the issue, and the parent, who was present at the hearing, did not testify or offer any evidence concerning ’s ability to function on public transportation of any kind when accompanied by an adult. This failure impacts negatively on any possible claim that would not be able to use the same transportation provided to nondisabled peers.

Since it has been determined that the school district fulfilled its obligation to to provide her with appropriate supports and services even though it did not mandate specialized transportation services on her IEP, the remaining question is whether the school district fulfilled its obligation to provide her with suitable transportation. New York State Education Law Section 4402 (4) (d) states that: “Notwithstanding any other provision of law, such board shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.

The evidence on the record demonstrates that the school district sustained its burden to establish that it provided with suitable transportation by offering her a student MetroCard to use going to and from school at no cost. As noted above, there was no evidence presented by the parent to suggest that could not use public transportation if traveling with an adult, despite her communication issues. The failure of to participate in the bus program that the school district does offer does not confer an entitlement to private transportation services to the student at the expense of the school district.

Finally, even if it had been determined that the school district did not fulfill its burden to establish it offered a free appropriate public education, equitable considerations do not support a request for reimbursement for any services undertaken by the parent because the parent did not establish that she provided the school district with notice of her intention, nor did she present any evidence to establish what transportation services she provided, how they were appropriate, or how much they cost.

Therefore, I find that that the school district sustained its burden to establish that it offered appropriate supports and services and I will direct that this matter be dismissed.

ORDER

This matter is dismissed in accordance with this decision. Dated: June 5, 2013

DEBRA SIEDMAN DEWAN, ESQ.

Impartial Hearing Officer DSD:gc

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 Impartial Hearing Request, 2/21/13, 4 pages B IEP, 1/17/12, 16 pages C Parent Correspondence to CSE, dated 8/16/12, 2/5/13 and 2/5/13 various, 3 pages D Letter from , 1/25/13, 1 page E , and Emergent Literacy Assessment by , 11/10/11, 10 pages F Diagnostic Psychiatric Evaluation by , PhD,

, 6/6/11, 8 pages G Letter from , LCSW, 1/28/13, 1 page H Mapquest Driving Directions between Parent Home and School, 3/4/13, 2 pages I Hopstop Train Directions between Parent Home and , 3/4/13, 4 pages J Hopstop Bus Directions between Parent Home and , 3/4/13, 4 page K OPT List of Bus Routes to , undated, 1 page L State Education Dept. Memo re Special Transportation for

Students with Disabilities, March 2005, 3 pages M Email, 11/9/12, 2 pages

IMPARTIAL HEARING OFFICER

I CFUS, 3/13/13, 2 pages