New York City Department of Education, Impartial Hearing Decision

x In the Matter of the Impartial Hearing on Behalf of XX., Petitioner, And

Lawrence Union Free School District,

Respondent. x

FINDINGS OF FACT AND DECISION

Impartial Hearing Officer James McKeever, Esq.

Dated: August 23, 2017

Decision

On or about March 6, 2015, the parent filed a Due Process Complaint (“DPC”), alleging that the Lawrence Union Free School District (“District”) failed to offer XX (“student’) a free and appropriate public education (“FAPE”) during 2016- 2017 school year because the District failed to grant the parent’s written request for special transportation to and from school (“Exhibit D-1).

For relief, the parent requests an order directing the District to provide door- to door transportation to and from the student’s home and the student’s private school located in Far Rockaway, New York.

The District contends that the hearing record contains no evidence supporting the parent’s assertion that the student requires door-to-door transportation.

The District also submits that student is not entitled to door-to-door transportation because the parent did not dually enroll the student in the District and in the district of location, which is the New York City Department of Education (“NYC”). The District also contends that they do not have a obligation to provide the Student with a FAPE pursuant to “Child Find” because" a parent made clear her intent to keep the child enrolled in the private in the district of location (“NYC”).

Further, the District asserts that the IHO lacks jurisdiction over the issue in this case because the parent’s claims do not involve the identification, evaluation, or educational placement of a student with a disability.

Finally, the District submits that the parent’s claims are moot because the 2016-2017 school year has ended and that any claim for relief beyond the 2016-2017 school year is premature and not ripe for adjudication.

Findings of Fact:

XX is a 15-year old child who is classified as student with a disability due to a visual impairment as per his Individualized Education Service Plan (“IESP”) (Exhibit D-14). Classification is not at issue (Exhibit D-1).

The student attends Private School, which is a private school located in Far Rockaway, Queens (“Private School”) (Tr. 121). The student has attended the Private School since he became school aged. The student receives occupation therapy services in conjunction with his IESP (Exhibit D-14).

During the 2014-2015 and 2015-2016, the District provided door-to-door transportation for the Student to the Private School. During those school years, the student’s bus pass indicated a pick-up and drop-off location at “address”, which is the student’s home address (Exhibits C and D).

On or about March 22, 2016, the parent requested that the District continue the student’s door-to-door bus transportation when the student entered high school in the 2016-2017 school year (Exhibit D-15, Tr. 59-61).

The District granted the parent’s request for transportation (Tr. 60-61). However, the District changed the student’s pick-up location to the corner of “Streets” and the drop-off location to “Streets” (Exhibit “E”), which was a short distance from the student’s home. Nevertheless, the change in the pick-up and drop-off locations required the student to cross a street in the early morning and the late afternoon (Tr. 125). According to the parent, the change in sunlight in the early morning and late afternoon affected the student’s ability to see due to his visual impairment related to a “photo-phobia” condition (Tr. 125-126).

On September 5, 2016, the parent contacted the District by email and indicated that the student was not provided with pick up and drop off bus service at his home (Exhibit D-7).

On September 6, 2016, the District advised the parent to complete the District’s “Request for Temporary Medical Bus Pass and Adaptive/Modified Physical Education Program” (“Medical Bus Pass Form”), as per District protocol (Exhibit D- 7).

The parent objected to the Medical Bus Pass form because the form required the Principal at the Private School to sign off on the form and the parent did not wish to disclose the student’s medical condition to the Principal (Exhibit D-8, Tr. 122). The parent also noted that the District did not require the Medical Bus Pass to be completed by Parent during the 2014-2015 and 2015-2016 school years (Exhibits A and B, Tr. 50) (Exhibit D-8).

On September 12, 2016, the parent provided the District with a letter from the student’s ophthalmologist who stated that the student had a diagnosis of “aniridia, strabismus, amblyopia and refractive error” (Exhibit D-9). The letter also noted that the student suffered from “Permanent vision loss, extreme photophobia and lack of 3D vision,” which could affect the student’s mobility when walking into sunlight or facing headlights. Consequently, the student’s doctor opined that it was a “medical necessity,” and for the student’s “safety,” that the student be picked up and dropped off at home (Exhibit D-9).

Subsequently, the District reiterated its request that the parent complete the Medical Bus Pass Form in order to provide door-to-door transportation (Exhibit D- 9).

Thereafter, the parent contacted FFFF, who is the District’s Director of Transportation, and repeated her request that the student be provided with a “home stop” based on the medical documentation provided by the student’s ophthalmologist. The parent also asserted that the District’s request for the Medical Bus Pass Form violated the student’s rights under the Americans with Disabilities Act (“ADA”) (Exhibit D-10).

The District declined to grant the parent’s request because special transportation was not referenced on the student’s IESP and because the student did not have a 504 Plan that required special transportation (Tr. 57).

Thereafter, the parent claimed that she continued to call Mr. FFFF in the fall of 2016 and left voicemail messages for him that were not returned (Tr. 125). However, Mr. FFFF testified that he did not have voicemail and he did not recall receiving any other messages from the parent during this time. (Tr. 79).

The parent also testified that in February 2017, Mr. FFFF told her that the District would not grant her door to door transportation request unless she completed the Medical Bus Pass Form (Tr. 127). The parent further stated that she contacted the District’s transportation office to obtain assistance regarding filing a complaint and received a return phone call from someone at the District who directed her to who Dr. AAA, who is the Director of Special Education at the District (T. 128). However, Mr. FFFF testified that neither he, nor anyone from his office had any conversations with the parent about the filing of a complaint regarding the student’s pickup or drop-off point (Tr. 57-58).

In the spring of 2017, Dr. Albert asked the parent for documentation to support her request for door-to-door transportation. The parent failed to provide any additional documentation at that time (Tr. 91).

Regarding the student’s visual impairment, the parent stated that the student receives services for his visual disability through the New York City Department of Education. The parent also stated that the student does not receive any special accommodation on his IESP for his visual impairment. However, the parent explained that she arranged for the student to receive accommodations at school directly with his teachers (Exhibit D-13, Tr. 92-93), though the accommodations were not explained.

The District advised the parent that they could not grant her request for door-to-door transportation without any documentation to substantiate her request. To that end, Dr. Albert asked the parent if she could speak to the student’s teachers to confirm the need for the parent’s requested accommodation. The parent refused (Tr. 93).

On or about March 6, 2017, the parent filed a Due Process Complaint (Exhibit D-1).

Thereafter, on or about March 24, 2017, Dr. Albert advised the parent that the District wanted to schedule a 504 meeting in order to address the parent’s request. The parent declined the District’s invitation and requested to move forward with the hearing (Tr. 94-96).

FAPE:

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 8 (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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; 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 IHO'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; Walczak, 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 LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 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]; Walczak, 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]).

Jurisdiction:

Although the District asserted that the within claim must be dismissed because the IHO lacks jurisdiction, pursuant to an Interim Decision, the undersigned found that the within claim was properly before the undersigned because the issue of transportation was related to the provision of FAPE (Exhibit D-1) Application of a Student with a Disability, Appeal No. 15-065 (2015).1

Mootness:

The District also claims that this within matter should be dismissed because the dispute between the parties, which involved the 2016-2017 school year, is no longer "real and live," and therefore moot Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005). However, I find that because the student is only 15 years-old and currently in the 9th grade, the issue of special transportation is capable of repetition, yet evading review" (see Honig v. Doe, 484 U.S. 305, 318 (1988). Therefore, the District’s request to for dismissal based on mootness is denied.

Transportation:

Pursuant to Education Law §3635, in order for a parent to obtain transportation for their children to a nonpublic school, parents must file requests

See parent’s opposition to motion to dismiss wherein it was clarified that that parent was seeking “suitable” transportation for the student as a related service due to a vision impairment. The parent also noted that the student received services for same from the New York City Department of Education, which is the District of location in this matter. with their district of residence by April 1 of the preceding school year or within thirty (30) days of moving to the district. However, Education Law §3635 does not require door-to-door transportation and a board of education has reasonable discretion in establishing a pick-up point near the student’s home (Appeal of Hurd, Decision No. 14,749 (2002)).

Additionally, although the school district in which the student resides is responsible for providing the necessary transportation to a non-public school in order for the student to participate in special education programs, the district of residence is not required to provide special transportation unless the nature of the handicap requires special transportation (See, the New York State Education Department Guidance Memo entitled, Transportation for Students Enrolled in Nonpublic Schools, February 6, 2012).

Here, where the stduent’s IESP does indicate that the student requires special door-to-door transportation in order to access his special education program, I find that the District is not required to provide it (Exhibit D-14, Tr. 141). I note that although the parent submitted a note from the student’s doctor, who opined that the student required door-to-door transportaion, the student’s doctor did not testify at the hearing and his note is unsworn. Additiionally, although the student’s IESP indicates that the student does in fact have a a vision impairment, which affects his ability to see when there are “changes in light” (Exhibit 13, page 2), I find that the evidence presented is insuffient to support a finding that the District was requried to provide the student with special transportation to and from school during the 2016-2017 school year. Specifically, I find that issue of whether the student requires special tranporation to and from school in order to access his special education program is an issue that must be considered by the Committee on Special Education.

Further, atlhough the evidence shows that the District provided special transporation in previous school years, the District is not required to continue this service when it is not obliagated to do so (Parkview Associates v. New York, 71 N.Y.2d 274, 282 (1988) ("[estoppel] is not available against a local government unit for the purpose of ratifying an administrative error").

Child Find and Provision of FAPE:

“The district of location is responsible for child find for students who are parentally placed in nonpublic schools located in their geographic boundaries.” Application of the Board of Educ. of the --- District, Appeal No. 11-153. In order for the District of residence to be relieved of its obligation to evaluate the student, and determine the student's eligibility to receive special education programs and related services, and develop an IEP . . . the district of location must have already determined ‘through the child find process . . . that the child needs special education and related services.’” (Application of a Student with a Disability, Appeal No. 11- 011).

In this matter, the NYC Department of Education developed an IESP for the student, which confirms that the District of location determined through the child find process that the student needs special education and related services. Additionally, the parent confirmed that the student had the subject IESP during the 2015-2016 and the 2016-2017 school years. Moreover, the evidence shows that the student has attended the private school since pre-school and never attended a school in the District’s. Thus, I find that the District did not have a child find obligation for the student.

Further, I also find that since the evidence shows that parent intended to keep the student enrolled in a non-public school in the District of location, the District was not required provide FAPE for the student Doe v. East Lyme Board. of Educ., 2790 F.3d 440, 451 n.8. (2d. Cir. 2005, .”); E.T. v. Board of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537 (S.D.N.Y. 2012).

Accordingly, the parent’s request for special, door-to-door transportation is denied. However, this matter is remanded to the CSE of the District of location to determine whether the student’s IESP should be modified to include special transportation.

ORDERED

The parent’s due process complaint, dated March 6, 2017, is dismissed with prejudice.

This matter is remanded to the CSE of the District of location (New York City Department of Education) to determine whether the student’s IESP should be modified to include special transportation.

Dated: Suffolk, New York

August 23, 2017 James McKeever James McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

District Exhibits:

1-3/6/17 Due Process Complaint Notice (2 pgs.) 2-3/15/17 District’s Notice of Insufficiency and Motion to Dismiss Due Process Complaint Notice (8 pgs.) 3-3/20/17 District’s Response to Parent’s Due Process Complaint Notice (4 pgs.) 4-3/21/17 Interim Decision by Impartial Hearing Office James McKeever (4 pgs.) 5-5/2/17 Letter from Ita YYY to Impartial Hearing Office James McKeever (2 pgs.) 6-5/22/17 Interim Decision from Impartial Hearing Office James McKeever (4 pgs.) 7-9/6/16 Email from WWW to Ms. YYY with attachment (2 pgs.) 8-9/6/16 Email from Ms. YYY to Sarah WWW (1 pg.) 9-9/12/16 Email from WWW to Ms. YYY with attachment (3 pgs.) 10-9/12/16 Email from Ms. YYY to FFFF (1 pg.) 11-3/24/17 Email from RRRR to Ms. YYY with attachment (2 pgs.) 12- Mileage Document 2-pages 13-3/28/17 Letter from Dr. AAA to Mrs. YYY (1 pg.) 7/20/15 14-IESP (6 pgs.) 15-3/23/15 Transportation Request (2 pgs.), 3/22/16 Transportation Request (2 pgs.) and 3/11/17 Transportation Request (2 pgs.

Parent’s Exhibits:

Exhibit A. E-mail, 3/6/14 1 page Exhibit B. E-mail, 9/12/16 1 page Exhibit C. Bus card 7th grade 1 page Exhibit D. Bus card 8th grade 1 page Exhibit E. Bus card 9th grade 1 page