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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 21, 2014
Actual Record Closed Date: May 1, 2015
Hearing Officer: Timothy Mahoney, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21,
2014
Esq. Attorney — Parents
Parent — Parents
Parent — Parents
Director (via telephone) — Parents
Esq. Attorney — DOE
On September 20, 2014, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (here “ ” or “student”) seeking transportation services from the New York City Department of Education (“DOE”). As more fully discussed below, I find that (a) the DOE failed to meet its burden in demonstrating the student was offered a free appropriate public education (“FAPE”) for the 2014-2015 school year in its failure to provide transportation services for the student to which was entitled.
I. BACKGROUND
This case was initiated as a result of a demand for due process (“Demand”) filed by the student’s Parents through her attorneys, the Law Offices of ,
, Esq. appearing, and received by the Department of Education Impartial Hearing Office (DOE-IHO) on or about September 15, 2014, and identified as NYC Case
No. .
A full list of hearing participants precedes this decision; a list of exhibits1 accepted into the record follows.
II. STANDARD
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an Individualized Education Program (IEP) prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012). Here, no issue was raised as to a unilateral placement; the DOE had the burden of proof and production. The DOE presented one document into the record – its Due Process Response, and offered no testimonial evidence. On this basis, I believe the standard articulated in R.E. and as enshrined in the state education law mandate that I find for the
The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). 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). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). 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'" Walczak, 142 F.3d at 130. 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). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.
New York Education Law § 4402(4)(d) provides that a school district’s board of education must provide transportation up to a distance of fifty miles to and from a nonpublic school which a student with a disability attends if “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.”
There is no dispute between the parties that the Committee on Special Education (CSE)
has identified as a child with a disability, and that the student’s placement is located within of ’s home. See Tr. 8; Ex. J ( ’s IEP for the 2014-2015 school year).
The DOE argued at hearing that the student’s unilateral placement was not similar to the program recommended in the IEP, and therefore was not entitled to receive special transportation as contemplated in the education law. The sole issue at hearing is whether the student’s private placement is similar to special educational programs recommended for such child by the CSE here. As described below, I find that it is similar.
The CSE classified the student with a and recommended a program in a school as well as related services consisting of , , and . See
P-J. The IEP also recommended that the student receive a . Id. Finally, the IEP recommended the student receive a and . Id. The parents rejected the DOE’s offered placement and selected to unilaterally place the student at the ,a nonpublic school located in for the 2014-2015 school year. See P-
B.
, the Director of Educational Resources at who oversees the program testified on behalf of the student. At the outset, I find this witness’s testimony credible ad uncontroverted. is attending the program at which is a program for students with and . Tr. 20-22, 27. The program has a maximum student population of per classroom with . Tr. 22. is in a classroom with . Tr. 28 (see P-M for the student’s classroom schedule). is also , and , and is utilizing a throughout the school day whenever needed for writing assignments to address his .
Tr. 27, 30, 55-56; Ex. M. The classes in the program are taught by special education teachers, all of whom have Masters Degrees and receive professional development on an ongoing basis, including specialized training geared to special education two to three times a year. Tr. 17, 22-23, 64-65, 68-69. The program also provides the related services of , , and , and has an trained reading specialist on staff. Tr. 22. Students in the program have opportunities to interact with students at in various activities during the school day, and participate in a science class with special education support provided during the class by the special education teacher. Tr. 22-23.
The DOE argued at hearing that the student’s unilateral placement was not similar to the program recommended in the IEP, and therefore was not entitled to receive special transportation as contemplated in the education law. In reviewing Appeal of a Child with a Disability, Appeal No. 99-2, I find that the holding of the State Review Officer (SRO) is inapplicable in this instance. There, the SRO found in part that the student’s unilateral placement offered no special education services to support the student, denied the family’s tuition reimbursement claim and rejected the request for transportation.
Certainly, offering no special education services is critical to a finding of lack of similarity; however, that is not the case here.
While there are differences in the program and that as described in the IEP, I find that the similarities far outweigh the differences. I reviewing the testimony ad the documentary evidence, what is most striking is that the student is in a placement which appears to individually tailored to his unique learning needs, . While is in a more restrictive setting, this alone would be insufficient to render a unilateral placement inappropriate in a tuition reimbursement case. Therefore it suggests that this alone would be insufficient to deny the parents’ claim in this instance. Moreover, the purpose of the statute is to ensure a student receives transportation (as well as related services as described in other sections) under the scheme of dual enrollment. See e.g.
N.Y. Educ. Law § 3602-c. This provision of the statute permits a parent of a classified child to select their child’s school – independent of whether tuition reimbursement is sought – and rely on the a school district to continue to provide certain services such as the one at issue in this matter. This is the fabric of school choice as recognized in this state. I can find no authority which requires I find a direct, one-to-one correspondence between a child’s private school and the program described in an IEP before the student is entitled to transportation services.
The parents request reimbursement of their of out-of-pocket transportation costs in addition to an order directing the DOE to commence transporting I have reviewed the expenses incurred by the Petitioners as described in the Affidavit of .
See Ex. K. The parents describe incurring in connection with transporting to and from his home and through and including November 14, 2014, and continue to incur expenses at the rate of .
I find that this placement is similar under the applicable standard. The student is entitled to transportation to be provided by the DOE. I further find that the parents’ private transportation costs are ongoing through the time of this hearing. To the extent the parent has continued to assume such costs, I further find that the parent I entitled to reimbursement of those amounts.
Now, therefore, it is hereby:
ORDERED that the DOE is directed to begin providing round-trip transportation for the student between his residence and his private school placement, to be initiated no later than five (5) days following the issuance of this Order; and it is further
ORDERED that the DOE is to reimburse the parents’ private transportation costs within thirty (30) days of the submission of documentation in the form acceptable to the DOE, to include the period of the start of the 2014-2015 school year and the time at which the DOE initiates the student’s transportation under this Order.
Dated: May 11, 2015
TIMOTHY M. MAHONEY, ESQ.
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 Impartial hearing request 9/15/14 3 pages
B Letter to CSE 8/18/14 3 pages
C Letter to CSE 8/19/14 2 pages
D Parent letter 9/4/14 2 pages
E Parent letter 9/7/14 3 page
F Parent e-mail 9/10/14 1 page
G Letter from 10/7/14 1 page
H Parent letter 10/13/14 4 pages
I E-mails 10/15/14 2 pages
J IEP 12/16/13 16 pages
K Affidavit of 11/14/14 23 pages
L Prior written notice 11/6/14 2 pages
M Classroom Schedule 2014-2015 1 page
DEPARTMENT OF EDUCATION
1 Due process response 10/7/14 4 pages
Footnotes
[1] References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”. Similarly, hearing officer exhibits are denoted by the prefix “IHO-”. parent based on the allegations raised in their due process complaint. Notwithstanding, I will review the applicable legal precedent and the parents’ offered evidence.