Impartial Hearing Decision

IMPARTIAL FORMAL HEARING PURSUANT TO EDUCATIONAL LAW SECTION 4404(1) AND COMMISSIONER OF EDUCATION REGULATION SECTION 200.5 BEFORE PAUL T. BUMBALO, ESQ. IMPARTIAL HEARING OFFICER bd In the Matter of the Complaint of Of the Parent of a Student with a Disability Against the XXXXXXKXXXXXX DECISION CASE ID NO Postural Posture This [HO was appointed to preside over this Impartial Hearing upon the recusal of the previously appointed IHO after a day of testimony. A Pre-Hearing Conference was scheduled and conducted. A scheduling Order was issued based on the District's request not to disclose transcripts of the previous testimony until after the witnesses had testified. The parties' submitted brief's and this Impartial Hearing Officer issued a ruling directing that the transcripts be exchanged and the witnesses who had previously testified to testify in summary fashion so that this IHO could evaluate creditability. The Hearing was held over one day with the following witnesses testifying and Mother, and the following Exhibits being entered into _ evidence Joint Exhibits 1-34; District Exhibits DA - DI, Parent Exhibits 1-6, , J32, J33, J34, and the following were IHO Exhibits IHO1, [HO2, IHO3.

Issues

The parents allege the district denied the student meaningful access to afterschool activities and has a relationship with S| daycare program renting space from the district providing services before and after school to care for district students. The student requires 1:1 aide during afterschool activities to provide safe and meaningful access, none of the within district programs are available and willing to accept the student. The student is currently at "A" for afterschool program less than 5 miles from the student's IEP recommended day program. The parent requested transportation for the 2013-2014. The CSE failed to discuss equal participation and extra-circular and non-academic activities. The parent's seek supplemental aide and services for equal opportunities to participate in extra circular and non-academic activities, a 1:1 aide providing access to afterschool programs or in the alternative transportation to afterschool programming and reimbursement for out of pocket expenses.

Summary of Facts

The district's first witness on February 6, 2014 wall who was recalled pursuant to a ruling from this IHO subsequent to the recusal of the previous IHO and this IHO's appointment, the said matter being briefed and a ruling issued therein. Nonetheless the witness testified in summary fashion that she is the coordinator special education overseeing programs at the elementary level including 504 plans. She participated in the initial informal meeting with the mother, following the adoption of the student. A CSE meeting was held with the school psychologist, related service providers discussing observations, CSE's evaluations, social history but transportation was never requested to an after school program. There was an evaluation with notice of consents with an eligible meeting from July 2012, the father was present but the mother was not. It was conducted in the normal practice of the witness with introduction, purpose, explanations, review of evaluations results, interpretations, and input as appropriate, review of goals, support, modifications/accommodations and programming options. The father brought with him a friend; neither raised any objections nor voiced disagreements. It appeared that he/they were in consensus with the other members and participants regarding the programming and placement. The initial CSE recommendation was to canvas other agencies to see what agencies could met the student's needs after the CSE meeting which occurred on July 30, 2103. This witness received an email from the mother on August 21, 2012 which is marked as P2, requesting information regarding after school programs and transportation. The witness did not view this as a request for special education services requiring a referral to the CSE but as an inquiry seeking information. Every one appeared to be happy there was not discussion about an extended school day, because the student was making progress and the student was believed to be receiving FAPE. The progress reports were reviewed from the agency placement and progress appeared to be good and more so on some then in others. There was no request for a CSE between the initial CSE meeting on July 30, 2012 and the annual review in May 2013, no contact or request for additional aid, support or transportation. At the spring of 2013 annual review they reviewed the PLEPS goals, IEP, extended school year supplemental support, modifications/accommodations. There was a total consensus with no issues raised T151. The witness reviewed J27 the student was making progress, the annual review indicated comments by the mother, who appeared to happy with the progress that the student was making at H, but again there was not a request for transportation or extended school day and aid support T154.

On cross-examination it was revealed that there no discussion at the 2012-2013 CSE meeting regarding options for after school programs activities or transportation T155. The CSE meeting program was discussed and the witness stated participants can raise question concerns throughout the meeting, at the end of the meeting, and after the meeting by phone call or email T156 which would appear to at the least create confusion with the parent if an email was or was not a CSE type communication. They reviewed the email and fi concluded that it had no relation to the CSE or special education but WB ve ferred the mother to transportation director Mr. ma 57. Transportation was provided to the student T157. They discussed his needs which were met by a small bus with a car seat and an aide T157, since it was assumed that transportation would be from home to agency placement and back and no information was provided contrary T158, it was admitted that the student's needs are substantial, but | believed email had to do with the mother/child care needs and not after school T160. The next witness was KK, the director (i which is a non for profit corporation providing school age after school programming as a private vendor renting space from the district facilities T162, they are responsible for their own management planning activities, staffing, and billing. They also have contractual relationships with GI and CC and other districts as well as private schools T163. The witness's degrees include a BS in psychology, MS in school psychology. She is certified in advanced studies and is experienced in an out of state school district as a psychologist T164 and is familiar with special education children and their needs 1165. They have a contract with the district and the witness recalled that while she was in school she acted as a summer camp aide in 2004 and she has been employed since 2007 or for the past 7 years by JFK T169. A typical day includes assembling in the cafeteria after sign in and their obligation is under Part 414 of the Commission's Regulations T168, they provide group meetings, snacks, behavior rewards, homework and academic support T168. The students are split-up by age and grades T169. The demographics of the participants are that of working double income families T170, normally the process is the parents enroll them online in the spring of the upcoming September school year T171. There is a separate Summer Camp also; the student profile includes regular and special education students in multiple areas of classification and disabilities including Ill cognitive [i impairments T172. They normally do not accept students whose classroom setting is less than 10:1 T173. The mother submitted an application in June of 2013 for the student T173, the student had significant special needs T173, and the witness advised the mother that the student was not a candidate because of his special needs and multiple disabilities and student to teacher ratio in the school setting T174. The witness was startled that the mother spoke of litigation T175. The witness opined that they are not bound by ADA for supports and it was determined that the student was not eligible T176; based upon the application and the student's IEP which was provided by the mother T176. A question arose whether the student would be accepted if he came with an aide T176. The witness was somewhat non-committal, but indicated that a trial period could be arranged to determine if the student's placement would work T177. The mother was cordial and not demanding T178. It was opined that extra-circular activities provided by the district included plays, musicals, clubs, athletics and community education T180. The witness also indicated that some of the | employees are off-duty district employed aides T181. On cross-examination the witness indicated that submitted a proposal based upon RFP for the 2007-2008 school year T182 and it is the only program on school grounds that offer academic support, homework, math, literature and social skills T184, and she did not offer a trial run to the mother T1835.

vi The next witness was TM he holds the position of assistant superintendent for finance, management service building facilities and transportation T189. H has prior experience of 15 years in the banking business and 15 years in the school business. The district transports approximately 11,500, to 10,000 in district, 12,000 out of district students, and approximately 200-250 special education students T190, there is 42 square miles of district area and the policy is to transport within 15 miles of the district borders for regular and special education students T150. The witness emphasized the need for efficiency and routing to maximize efficiency and reduction of costs T191. The procedure for regular education students is to submit an application for transportation prior to April 1° for the upcoming school year online. Any special education students' transportation needs comply with the CSE recommendations as contained in the IEP 1192. The witness was familiar with the student's IEP that provided 3 transportation elements: small special bus, child seat, aid monitor and to transport the student out of district T192. The district's policies include complying with CSE recommended transportation services on the student's IEP T193. The normal protocol for drop-off is by a fire hydrants or street corner with the exception of the cul-de-sac rule T195. They require 5 day week transportation. The mother initially requested transportation 2 xs per week T197. The district's policy is not to transport less than 5 days to any location, T196 as a permanent drop-off site. They cannot transport directly to a daycare setting, a daycare drop off can be to a transport point and then all elementary students would be transported to the agency T197. This is because of a district within a district attendance zones T199. Regarding the out of district location of the "A" after school program T198, there did not appear to be any students being bused to that location nor did they have a formal request to that location from the mother T200. Witness reviewed DF the webpage for the district application denial form as part of the facilities obligation, T201 and shows information about out of district placements, daycare and regulations for special transportation T204. The witness was familiar with lease with JFK which is J30, an annual rental fee in the amount $188,000.00 which does not include the summer program T208, they have no control over the students that JFK accepts 1209, in fact the request for proposal was modified from a program to a lease or straight lease arrangement since 2007. Extra circular activities in the view of the witness; include clubs and other athletic events T210, nor aid have an office within district buildings. The lease arrangement with JFK is viewed as a community benefits T216, providing services to the community district residents, and also generating income as the state aid to districts is reduced but was sought out by the district T212. The witness felt haf vas a private vendor, however there is no other private vendor providing after school services in the district T215. Contrary to policy, there was not ran application to transport to A, although the mother did make inquires to the transportation department T215. The witness did not suggest that the mother go to the CSE to address the issue of transportation. The witness knew the mother was dealing with Dr. C. the Asst. Superintendent for Student Services T217. Dr. C. after discussing with the witness T219 issued DA, a letter to the mother indicating that the district would not provide transportation to "A" after school program. In review of the contents of the letter, Dr. C. did not suggest that the mother address the issue with the CSE, however the letter does indicate that under no uncertain terms then in the opinion of Dr. C. Educational Law prevents providing transportation services to the mother and the student to his after school program. The next witness that testified was the mother and she recounted the historical data regarding the adoption of the student T234, who was born in TE 20 suffered development and environmental challenges as a result of his health T235. He wa ii | there was an informal meeting with district's first witness CL T238. The mother was not present at the July 30", 2012 T238 CSE meeting where the recommendation was an agency placement to fill the needs of the student T238. The H placement was selected after intake process 1239, H was appropriate to fill the student's needs, which include communication, physical development, ii issue T239, and social delays regarding peer interaction. The mother indicates that the student does not know how to appropriately socially interact with his peers; he tends to over eat T241, has bad teeth and vomits because of P| and other infections he sustained prior to his P| The witness explained the after school options at the time of the CSE meeting in July and was uncertain to the exact placement and as a result it was unknown what time school would end, so exploring afterschool programs was difficult T242. The mother contacted CL for information because she was new to the process T242. The mother reviewed D2 in which an BE 0 cram was described, the mother then investigated P| center, A, hq 244, iS 44. Options were limited due to the newness of the a. the student was not potty trained T246, and S hand no room, "A" provides a 1:1 aide T245. They have activities and a medical staff T245. The student now has a Pd which is a non- income based medical approval T246. She talked to TM many times about transportation, 2-3 times regarding transporting the student from H to the A school discover center T247, she was told to contact transportation T247, she was told to report to TM and that they would not transport out of the district T248. The mother was told that they would not transport the student out of the district but they would see if a local district could assist and that did not work out T248. Currently the mother, father and a family friend assist in transportation regarding the 2013-2014 T249. The family friend was no longer available after October, currently the student was only enrolled in A program 2x per week, Tuesday and Thursday for 2013/2014 T249 but last year was 5 days T249. The father transported the student approximately 20 to 25 times this year; the route is shown in P5 and is 5.5 milesT250 due renovations and a change in buildings and the current route is 2 to 3 miles T251. The district had a5 day policy where they only transport to a permanent location every day of the week. There was an application to JFK in May of 2013 T252, she spoke with KK the director and they would not accept the student into the program and a trial period was not offered, and there were not a lot of options T252. The witness reviewed DA the district response to the mother after a request to consider transportation after 2012/2013 school year to an afterschool program T254 TM said no, Dr. C. said no, and the mother indicated that she never used the term FAPE T255. She said that she liked the program but the only program they discussed was the 8:30 to 2:30, but she is dissatisfied with the afterschool 2:30 program. There is nothing available to the student after 2:30 but she was dissatisfied with the after school 2:30 program. There is nothing available to the student after 230 in the district T256. On cross examination the mother revealed that part of the need for the afterschool program is because of her work schedule T257 nor did she ask the district to pay for the CDC program and she is paying for it privately because there are no other options T257. It was revealed that the witness did not ask the CSE to place the student at the CDC, pay for the private placement at CDC, nor did she ask the CSE for an extended day T255. Notwithstanding that she is an instructional coach with 14 years experience in a local city school district with an advanced certificate degree in building level with 30 hours instruction and 600 hours interning T262. She agreed that the student is making progress. She also has experiences in reviewing, monitoring and instructing teachers in need of improvement and has experience with preschoolers and charter schools. She obtained her MS from a University and BS from C College. She works as an instructional coach for teachers providing inclusion services for students in special education

1263 and has attended 3 CSE meetings over her 15 year career. She expressed her concerns, not within the context of the CSE meeting; she talked to various members of the team. Regarding the August 20, 2012 email, she did not bring it up at the CSE because after the adoption she only had limited time and was running around with a chicken with her head cut off T264 and she only did minimal investigations. The question was whether she felt that it was a referral to the CSE, it was unclear, but she was seeking transportation. There was a need to explore other options. This witness was questioned on what investigative steps she had taken to inquire as to available provider for after school programs 2012/2013 was not as thorough as 2013/2014 T270. She had did a google search of 1 page limitation and found several T276, she originally called JFK and it was an initially believed that it would not met the student's needs, because of the 10:1 ratio and the student's needs T280. She never complained about the after-day program or requested after- day program or transportation issues T281. But during the August CSE meeting, one of the concerns the mother had expressed at a 504 meeting was the student's safety because he was non-verbal T283. TM indicated that she had to checkout out of district options, the difference with the 1: 1 aide in a public setting is, it is a public setting and there is more opportunity to observe different problems as compared to private setting which would be scary to bring a baby sitter and was not an option T285. She acknowledged that the student's needs were not met as easily as a non-disabled student's T287, and felt that the accessibility of a regular program such as "A" offered. But during prior sworn testimony of a 504 the witness said that she did not know that a trial period was an option T291 and because of safety concerns T295. The mother indicated that she asked for transportation, notwithstanding the fact that she did not ask for reimbursement for the afterschool program. She claimed this was the same group and did not need to re-raise her request for transportation. Regarding the 5 day rule, the parents into a 10

Tuesday/Thursday schedule which does not mean that they did not or could not use 5 day a week commitment T289. The mother did not raise concerns about the after 2:30 extended day programing and transportation since it seemed redundant because the same people who were at the CSE meeting already said no T295.

Decision

FAPE and the 2013-14 school year

The following principle of law is well established: "The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9] [D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 CER. § 300.22). 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). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (see 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, ifa procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 CF.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Also, an impartial hearing officer is not precluded from ordering a school district to comply with IDEA procedural requirements (20 U.S.C. § 1415[£][3][E] [iii})."

Procedural violations can lead to a denial of FAPE: as was stated in SRO 11-42: "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 NYCRR200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep'tof Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL3930028, 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, 2008 WL 3852180 [2d Cir. Aug. 19, 2008})."

Procedural Violations

The district contends that there were no procedural violations occurring at the CSE meetings. The mother did not attend the initial CSE meeting on July 30, 2012. The father attended and was accompanied by a family friend purported to be familiar with special education issues. The 2012-13 school year is not in issue. There was an annual review meeting on May 29, 2013 planning for the 2013-14 school year. The parent did not raise the issue of the transportation, extended school day after school care, nonacademic courses or classes or extracurricular activities, and/or transportation. The issue was first raised by email tof which was to be interpreted to be seeking info about private pay day care facilities capable of meeting the needs of the student and mother. This email was sent on August 21, 2012 is marked as J12, requesting information regarding after school programs and transportation and not a request for a CSE even though addressing her child's needs was the only basis for the interaction with the mother. The mother spoke with oll in June of 2013 about the 13-14 school year. She spoke with Bt beginning of 2013- 14 school year and met with Dr.C who responded by letter District Ex A which states Education Law precludes transportation for after school care. The Dr.gggs letter stating that it would be a violation of law to provide transportation is inconsistent with what Assistant Superintendent TM testified to acknowledging that the CSE's can recommend transportation out of district overriding the district policy and overriding general education law relating to transportation. The letter is drafted very narrowly drawing the distinction between day care and extended school day as part of the student's IEP but without stating or explaining the distinction and then offering a meeting but not a CSE meeting. Either way the mother relied on the statement. She testified that did not bring it up to the CSE because she was already told no. There appeared to be consensus that the student day program was appropriate and the student was progressing inconsistently at time but still progressing. The parents argue the FO case and that the district's action outside of the CSE should be viewed in context of the IDEA working towards a collaborative effort. FO is a reimbursement case and inclined towards equity evaluations via prong 3 and as a result it is not controlling. The parents argue the FO case and that the district's action outside of the CSE should be viewed in context of the IDEA working towards a collaborative effort. FO is a reimbursement case and inclined towards equity evaluations via prong 3 and as a result is instructive but it is not controlling. The district argues that the parents failed to raise issues before the CSE precluding the CSE from addressing these issues. The mother argues that she communicated these concerns to district personnel and that they were aware of these issues. Whether it was confusion 13, miscommunication or something else; it is not disputed there were no discussion or participation regarding an extended day, after school, day care program, and/or transportation. In fact the district relied upon this as part of its case in chief. However I find the letter from Dr. a stating that the requested transportation as against the education law created a chilling effect upon the parent seeking transportation to day care as a related service. The mother testified that she did not bring it up at the CSE since they were the same people at the CSE that had already said no. I also find that as a result of the chilling effect the mother's failure to raise these issues at the CSE was excusable. I find that it was the cause of the parent's failure to raise these issues was the parent's reliance upon the district representative informed her. I find the district's failure to explain the distinction affected the parental participation in the CSE process resulting in a denial of FAPE and without a full explanation the CSE process becomes an adversarial and suspicious process which is contrary to the intent of the IDEA. I order that the district reimburse the parents for travel expenses at the IRS rate based upon an itemized sworn statement as to the days transported and distance traveled up till the CSE reconvenes as directed herein.

Transportation to and after School Programs Extended Day Services

The student is currently at "A" for afterschool program less than 5 miles from the student's IEP recommended out of district day program. The parent requested transportation for the 2012-2013 and the 2013-2014, but did not pursue claims for 2012-13. The CSE failed to discuss equal participation and extra-circular and non-academic activities. The parent's seek supplemental aide and services for equal opportunities to participate in extra circular and non- academic activities, a 1:1 aide providing access to afterschool programs or in the alternative transportation to afterschool programming and reimbursement for out of pocket expenses. The SRO stated in 12-095 "The IDEA specifically includes transportation, as well as 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[26]; see 34 CFR 300.34[a],[c][16]). In addition, New York State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents 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]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]). Transportation as a related service can include travel to and from school and between schools; travel in and around school buildings; and specialized equipment such as special or adapted buses, lifts, and ramps (34 CFR 300.34[c][16]). Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 03- 053). The nature of the specialized transportation required for a particular student depends upon the student's unique needs, and it must be provided in the least restrictive environment (34 CFR 300.107; 300.305). Ifa CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46,576 [Aug. 14, 2006]; see 8 NYCRR 200.1 [ww]). Safety procedures for transporting students are primarily determined by state law and local policy (see Letter to McKaig, 211 IDELR 161 [OSEP 1980])." The underlying issues is not whether the IDEA requires transportation to his program but the issue herein is whether the after school program is part of his program. (The parents' discrimination claim is discussed in a separate section). It is not part of his program and not part of his IEP for the 2013-14 school year because it was not requested or discussed. It was not part of the second year because it was not discussed at the CSE: however there cannot be a collaborative effort if there is not a discussion of the options and alternatives available to the parent. See SRO 12-095 "The principal testified that if the student had been assigned to attend a program in one of als)

The district's other schools, he would have received transportation from his neighborhood school to the other school (Tr. pp. 25-26). The district's interim director of special education (the interim director) testified that the student was not recommended to receive door-to-door transportation because he lived within two miles of his neighborhood school and had "no physical needs for requiring transportation" (Tr. pp. 167, 174). The principal also testified that there were no students in the student's grade who walked to school independently (Tr. p. 45). The principal opined that the student could walk to school from his home with supervision (Tr. pp. 40-42). She further stated that the student had no physical needs that would necessitate the provision of door-to-door transportation, as he was "driven and picked up every day" (Tr. pp. 34, 48-49). In response to questioning from the parent's counsel regarding whether the district was placing the responsibility for transporting the student on the parent, the principal replied that the district expected "all of the parents to be responsible for our students before and after school" (Tr. pp. 89-90). The student's special education teacher during the first portion of the 2010" As the SRO stated in 12-095: *T find that the student is entitled to transportation as a related service, I express no opinion about the mode of transportation the district must provide to offer the student a FAPE, considering what constitutes suitable transportation for the student a matter best left to the CSE in the first instance (see Educ. Law § 4402[4][a]; see, e.g., Ms. K. v. City of South Portland, 2006 WL 463943, at *6 n.7 [D. Me. Feb. 24, 2006], adopted by 2006 WL 839493 [D. Me. Mar.30, 2006]; Weymouth Pub. Schs., 56 IDELR 117 [SEA MA 2011]). I note in particular that there is no evidence in the hearing record that the student requires any particular accommodations or modifications for transportation to be suitable." The CSE is in the best position to address these issues and direct the CSE reconvene to address these issues. The CSE should reconvene to review the student PLPS and needs and in particular if the student needs an after school program, extended day program or day care in order to provide FAPE. The CSE should reconvene to review the student PLPS and determine if there is a consensus that the student needs after school care to address the student's inconsistent progress; and whether it would be appropriate to provide transportation as a related service.

Discrimination

The parents allege the district denied the student meaningful access to afterschool activities and as a relationship with JFK daycare program renting space from the district providing services before and after school to care for district students. The student requires 1:1 aide during afterschool activities to provide safe and meaningful access, none of the within district programs are available and willing to accept the student. In 11-158 the SRO stated : "The student shall be provided a reasonable opportunity to access extended day or extracurricular programs to the extent that they are available to students in the district (disabled or not) and shall not be excluded from such programs solely on the basis of his disability" Also in SRO 06-033 "Also, I find that the child was not denied an equal opportunity for participation in nonacademic and extracurricular services. Respondents' daughter received transportation to Mill Neck in the morning and transportation back home from Mill Neck at the end of the regular school day. The record reveals that petitioner eliminated extracurricular late bus service District-wide (Nov. 16, 2005 Tr. pp. 59-60, 84, 103, 131; Dist. Ex. 2 at pp. 4- 5). Additionally, district sponsored after- school activities were also eliminated at the elementary school level for all students (Nov. 16, 2005 Tr. p. 121). Had respondents' child been attending public school within the district, she would have had the same opportunities as her non-disabled peers to access district sponsored after- school programs. She, along with her disabled and non-disabled peers, would have had no opportunity to participate in district sponsored nonacademic and extracurricular services because the after- school activities were eliminated for all district students at the elementary school level. The impartial hearing officer relied on a prior SRO decision, Application of a Child with a Disability, Appeal No. 93-23, in support of his conclusion that respondents' daughter was denied an equal opportunity to participate in after- school activities. However, Application of a Child with a Disability, Appeal No.93-23 is factually distinguishable from the instant case. In that decision, unlike the determination herein, an SRO found that the evidence did not demonstrate that the child's social development needs were being met or that the child's educational program was appropriate. Also, the SRO determined that in terms of meaningful access to extracurricular activities, there "[was] a significant difference between the child's situation and that of other children" because the child could not be returned to the district's high school in time to participate in after- school activities and because at the end of the extracurricular activities at the private school, the child was not in a similar position as other students to access transportation home. In the instant case, as previously discussed, there was no significant difference between respondents! daughter's situation and that of other district elementary school children; no child had access to district sponsored after- school programs because no district sponsored after- school activities existed at petitioner's elementary schools" It should be noted that Part 100.2(k) of the Commissioner's Regulations states: a. "Nondiscrimination in curricular and extracurricular activities. No student shall be denied membership or participation, on the basis of race, sex, marital status, color, religion, national origin or disability, in any program or activity which is included in a school program of curricular or extracurricular activities, provided that: ly;

1. in the case of students with disabilities, such activity shall be appropriate to a student's special educational needs as identified by the committee on special education: 2. male and female participation in extraclass athletic activities shall be in accordance with the provisions set forth in section 135.4(c)(7) of this Title; 3. anonpublic school may limit admission to such school to students of a single sex and/or of a single religion or denomination; and 4. anonpublic school controlled by or affiliated with a religious organization may separate students on the basis of sex to the extent that such separation is required by the religious tenets of such organization." The following should be noted regarding said regulation: that age is an appropriate factor and that the CSE must determine if the extra-curricular activities is appropriate to the students' needs It should be noted that the term is not defined in 100.1 lists of definitions, however is defined under IDEA Regulation. "Sec. 300.107 Nonacademic services. The State must ensure the following: (a) Each public agency must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child's IEP Team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities. (b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the public agency, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the public agency and assistance in making outside employment available. " The SRO has stated in 13-152, "a district must take steps to provide students with disabilities an equal opportunity to participate in extracurricular activities which are available to all other students enrolled in the public schools of the district (34 CFR 300.107; see 8 NYCRR 200.2 [b][1];Roslyn, 274 A.D. 2d at 850; Application of a Child with a Disability, Appeal No. 04-047;Application of the Board of Educ., Appeal No. 93-023; Application of the Board of Educ.,Appeal No. 92-011). This obligation exists separate and apart from a district's duty to determine whether extracurricular activities are a necessary part of a student's educational program." The SRO also stated in 11-158

"As was the case in the former district, during the pendency of these proceedings, the student shall be provided a reasonable opportunity to access extended day or extracurricular programs to the extent that they are available to students in the district (disabled or not) and shall not be excluded from such programs solely on the basis of his disability." This leaves us with the question whether the JFK program is or is not a district program.

Nonacademic and Extracurricular Services

The school district web site references student services. The student handbook defines the school day from 7:30 to 2:15 and that students must take bus walk or be picked up by parent. The handbook also states that there are clubs and after school programs available , but does not list or itemize them except to say that that information will be sent home. It is unclear if that information was sent home to this student or mother. Tha started as contract services and was amended to a lease arrangement. There was testimony during the first day of hearing by the transcript entered into evidence as PI indicated that the after school programs, activities, extra curriculum, and intramural start with the later elementary grades third and fourth grade and middle school. The elementary school handbook indicates clubs, intramurals, and sports, exist and that information would be sent home. It lists the length of school day. It is unclear if any such programs are offered to students in the student herein age range since the regulation does not preclude age as a factor. As a result I find that the after school and extracurricular programs offered in the higher elementary grades is not an improper discriminatory practice. The day care program known af was created in response to a district created RFP request for proposal. The district creates the confines and parameters of the program. A review of the RFP shows that the scope of services is to provide for student. It states: "It is the district's intent to provide before and after school care for students in all elementary and middle school buildings when sufficient indication of need exists. So it would appear that the RFP goal is to fill the district's intent. The testimony fron MEE cepted who needed a 10:1 ratio of student to adult, or more. This would seem to indicate that the majority of students KK accepts are either general education students and /or classified students who are receiving services ina district school based program. If it was the district's intent to provide before and after school care for students regardless of their level of functioning and existence of any disability then the RFP would not be limited to students in the district's elementary buildings thereby excluding students such as this student. However the district controls this with the scope of services in the RFP and based upon what proposal it accepts. In addition a review of P4 the Parent Handbook for F Elementary lists JFK as an After School Program offering supervised preprograms in the building to students As a result I find that the f program is controlled by the district and is a sanctioned district activity. The nest question if this student does not meet the criteria for a district controlled after school program is it obligated to provide an aide at | or transport to a program that is appropriate to meet the needs of this student. I am unable to ascertain this at this point in time. KK indicated that a trial period with an aide would be necessary to determine if the program would be appropriate to meet the student's needs. As a result I direct that the CSE reconvene to determine if the JFK with an aide is appropriate for the student's needs or if transportation should be provided to 'A' after school program.

Findings

1.1 find the letter from Dr. C stating that the requested transportation as against the education law created a chilling effect upon the parent seeking transportation to day care as a related service. 2. I find that as a result of the chilling effect the mother's failure to raise transportation issues at the CSE was excusable. 3. I find that it was the cause of the parent's failure to raise transportation issues was the parent's reliance upon information provided by the district representative. 4. I find the district's failure to explain the distinction affected the parental participation in the CSE process resulting in a denial of FAPE and without a full explanation the CSE process becomes an adversarial and suspicious process which is contrary to the intent of the IDEA. 4. I find the after school and extracurricular programs offered in the higher elementary grades are not an improper discriminatory practice. 5. I find the jjjjjprogram was formed in response to district parameters contained in the RFP's and accepted by the district and is a sanctioned district activity. 6. I find that the district through its RFP that it circulated and the proposal that it accepted failed to provide equal opportunity for participation by failing to provide an aide a at S| which would provide equal opportunity or in the alternative by failing to provide transportation to an after school program that is appropriate for the student.

IT IS HEREBY ORDERED:

|. The district reimburse the parents for travel expenses at the IRS rate based upon an itemized sworn statement as to the days transported and distance traveled up till the CSE reconvenes as directed herein to address transportation issues. 2. The CSE shall reconvene to review the student PLPS and needs and in particular if the student needs an after school program, extended day program or day care in order to provide FAPE. 3. The CSE should reconvene to review the student PLPS and determine if there is a consensus that the student needs after school care to address the student's inconsistent progress; and whether it would be appropriate to provide transportation as a related service. 4.The CSE shall reconvene to determine if the [vith an aide is appropriate for the student's needs or if transportation should be provided to 'A' after school program and make a recommendation regarding the provision of related services either in the form of transportation to an appropriate program that is willing to accept the student or provide an aide to allow for an Opportunity to equal access to an after school.

PLEASE TAKE NOTICE: Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (1) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states: "279. (2)(b).13 Notice of intention to seek review. (a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form: Notice: (a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice. (b) 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. (c) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period."

PAUL T. BUMBALO, ESQ.

IMPARTIAL HEARING OFFICER

Dated: March 27, 2014