New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 183184

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 10/24/19

Actual Record Close Date: 04/20/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 11/13/19 Attorney PARENT 11/13/19

Mother PARENT 11/13/19

On May 22, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of an ( ) year old student attending a private school and the New York City - Department of Education (“DOE”) - District: , regarding the student’s special education program. I was appointed after the recusal of at least one other IHO. After having adjournments granted at the request and with the consent of the parties, or for good cause, the impartial hearing was held on November 13, 2019. A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”)

made by the student’s Parent through her attorney(s), the and received at the Department of Education Impartial Hearing Office ( “DOE-IHO”) on or about May 21, 2019. The DPC is carried under New York City ( “NYC”) . Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2016-2017, 2017-2018, 2018-2019 and 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief: (a) An independent occupational therapy evaluation at market rate, as well as an order that he be provided occupational therapy and compensatory occupational therapy consistent with the recommendations of the independent evaluator; and (b) An order that the student be provided additional services in the amount of (628) hours of 1:1 tutoring which shall be scheduled at the Parent’s discretion with no expiration date and shall be provided by GC *), , at a rate of $105.00 per and to pay $295 for the cost of diagnostic testing and $100 for 'S standard registration fee; and (c) Transportation to and from the in the form of Metrocards for the student and Parent; and (d) An order for other relief in the discretion of the hearing officer as is warranted by the evidence; and (e) Payment of attorney's fees and expenses.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-6-10) The DOE did not defend “FAPE”, did not challenge the presumption in the law that the Parent has cooperated with the agency and did not object to the Parent's documents being received in evidence. (T-9) The testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, who submitted their direct testimony via affidavit pursuant to 8 NYCRR 200.5{j][3][xii][f]. (P-l & P-J) The DOE did not cross examine the affiants. (T-7) The Parent also submitted (8) documents in evidence that the DOE did not object to being received in evidence. (T-9)

The testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]) A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept.

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2° Cir. 2005])

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2° Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) 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. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student's special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents’ request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe _v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a_ claim of _ tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049).

In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA.

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir. 2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C]ii] and 34 C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, did not submit any document in evidence and failed to file and serve an answer or a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-6-10) “Prior Written Notice” means written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student.

It is noted that silence in a responsive pleading is an admission, and a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4°" Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 [1966])

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement.

(See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. As previously noted, the DOE did not serve and file an answer in the case but did serve the Parent with “Prior Written Notice’, which provides either a denial of the Parent's allegation, or some explanation for the agency’s failure to provide a FAPE.

(See 20 U.S.C. 1415(f)(3)[e])

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain _v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing,_ Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.

(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ’) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1' Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

However, here the DOE did not present a case-in-chief and did not controvert the documentary evidence submitted by the Parent. (Supra) The credibility of the testamentary and documentary evidence was not rebutted by the agency and the testamentary and documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary and testamentary evidence submitted by the Parent in this case to be credible and supportive of the Parents request for relief.

As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd.

of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'|) When, as here, the DOE does not present any case at the hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief.

The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2016-2017, 2017-2018, 2018-2019 and 2019-2020 school years and that the Parent may be entitled to the proven relief she has requested.

A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.

C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.

1988) and SRO No. 02-047) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “...after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”) \|n the instant case, the student has been denied a FAPE for (4) consecutive school years.

(Supra) As such, I find that the DOE concession that is has failed to afford the student a FAPE constitutes a gross violation of IDEA.

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank.

G., 459 F.3d at 364-65).

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F.

Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14)

The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])

There is a request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F.

Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District_of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student's unique needs should include the nature and severity of the student's disability, the student's specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos|[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept.

13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ( “Nesbitt II’), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5{j][5][v])

Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:

“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, Ill, 42) (See_Schaffer v. Weast, 546 U.S. 49, 58-62 [2005] (emphasis added)

The party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James _v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

The Parent called (2) witnesses to testify on her behalf via affidavit. (P-l & P-J)

In sum, substance and relevant part, the testimony on behalf of the Parent is as follows: The first witness for the Parent is the Director, whose direct testimony via affidavit is completely uncontroverted. (P-l) She stated:

2. is a full-service learning center, offering individualized tutoring in reading, writing, math, exam preparation (e.g., SAT, ACT, SHSAT, TACHS, ISEE, etc.) and subject tutoring. Our staff has over 50 certified teachers, many with special education certifications. We work with regular and special education students from kindergarten through high school. has been awarded accreditation by the Middle States Association of Colleges and Schools, Commission on Elementary and Secondary Schools, for effectively advancing the quality of educational experiences offered to students and meeting its responsibilities to the public and the education profession in accordance with MSAA standards (see www.middlestates.org). I am fully familiar with the facts set forth herein and submit this sworn Affidavit in lieu of in-person testimony in support of [STUDENT NAME] and his mother [STUDENT’S MOTHER’S NAME], as part of the pending impartial hearing against the NYC Department of Education, .

4. Several tests were administered to [STUDENT NAME]: the Slosson

Visual-Motor Performance Test for Children and Adults, the Slosson Oral Reading Test, the Burns and Roe Informal Reading Inventory, the Performance Series (reading comprehension subtest), a writing sample, anda Math Placement Exam. Exhibit F in this proceeding is an accurate copy of the results and scoring of said tests as maintained in 's records.

5. As a result of the above-mentioned tests, found [STUDENT NAME] to be operating at least three years below grade level in verbal (ELA) and math. We found him to have significant gaps in his academic skills across several areas.

17. Based on the totality of the testing, | would characterize [STUDENT NAME]'s grade equivalent to be third grade level in verbal (ELA) and no higher than second grade in math.

18. In order to remediate [STUDENT NAME]'s deficits and allow him to progress academically, I have determined that it would take approximately (628) hours of one-on-one tutoring by a highly trained teacher such as those we employ at . This number is determined by the testing in math, reading, splinter skills, vocabulary, and writing detailed above.

The recommended tutoring is necessary to allow [STUDENT NAME] to make anything more than trivial academic advancement.

19. The Individualized Prescribed Hours (Ex. G) identifies the skills to be worked on and some of the curriculum to be used to teach [STUDENT NAME] the skills he is expected to have mastered, but which he lacks, and the number of hours that it will take to cover each of the skills that [STUDENT NAME] is lacking. The Individualized Prescribed Hours were specifically prepared for [STUDENT NAME] based upon the test results regarding his skill levels. The program is informed directly by the results of the evaluations noted above, and we begin, in each area where remediation is needed, at the student's mastery level, and then build upon that level to close the academic gaps in a logical and sequential manner.

25. I am confident that if [STUDENT NAME] is given the opportunity to participate in the program developed for him at , he will be able to make meaningful academic progress, as well as to build up his confidence levels as he learns not only new materials, but also how to retain and build upon what he has learned when he is outside of the tutoring setting. The fee for the diagnostic evaluation at is $295.00. The registration fee is $100.00, and tuition is billed at a rate of $105.00 per hour for one-on-one instruction.

26. is open seven days a week, in order to allow students the greatest amount of flexibility and opportunity in scheduling tutoring sessions. We will recommend to [STUDENT NAME]'s parent that he attend as many hours weekly as is practical. (P-l)

The Parent's and second final witness is the student's mother. She also testified via affidavit as follows:

11. [STUDENT NAME] was classified in January of 2019 following my referral. However, given [STUDENT NAME]'s needs, long standing learning issues, and my repeated requests for increased help, he should have been referred to the CSE, classified, and provided an IEP much sooner.

12. | requested evaluations and testing as far back as 2014. As is noted in his most recent April 2019 IEP, "[STUDENT NAME] was evaluated for occupational therapy in June of 2014 and again in January of 2015 and was not approved to receive services at the time."

13. I asked for help from school staff during both the 2016-2017 and 2017-2018 school years. | requested that [STUDENT NAME] be evaluated in the Fall of 2017. However, the DOE failed to evaluate [STUDENT NAME] in response to my 2017 request. [STUDENT NAME] was not given the support he needed, and I do not believe he progressed during the 2016-2017 and 2017-2018 school years.

25. [STUDENT NAME] should now be provided an_ independent occupational therapy evaluation, as well as occupational therapy services and compensatory occupational therapy consistent with the recommendations of the independent evaluator.

28. [STUDENT NAME] should also be awarded tutoring services to address the DOE's failure provide him an appropriate program, placement and IEP in the past.

29. In May of 2019, | took [STUDENT NAME] for testing at the

30. This testing confirmed what | already knew: specifically, that [STUDENT NAME] was very much behind his peers academically and in need of remediation.

31. | would like these services to be provided at located at . I've had many interactions with staff at this location during [STUDENT NAME]'s testing. I have spoken with staff and am comfortable and confident that they can deliver appropriate remedial tutoring for [STUDENT NAME] and provide programming for him that will allow him to progress and get back on the right track.

32. I will need metro cards for myself and my son in order to access programming and cannot afford these metro cards otherwise. (P-J)

Based on the uncontroverted record above and the documents received in evidence, I find that the DOE did not meet its statutory obligation and denied the student a FAPE. I further find that the relief sought by the Parent is appropriate to address the student’s needs and provide the student with an educational benefit. I also find that the Parents cooperated with the DOE.

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. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16] & SRO No. 16-009) In addition, 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.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]) Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053) If a 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. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1 [ww])

The State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]) Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])

When reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054)

In this case, although the Parent testified “I will need metro cards for myself and my son in order to access programming and cannot afford these metro cards otherwise” (P-J), there is no indication in the hearing record as to the student's need for special transportation during the 2016-2017, 2017-2018, 2018-2019 and 2019-2020 schools years or any indication that special transportation was provided by the DOE at the April 2, 2019 CSE meeting. (P-B) Additionally, there is no evidence in the hearing record as to how the student was transported to and from the public school each day during the relevant school years. Accordingly, the hearing record does not support a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation. However, this does not constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402/4]|[d]) If the district has not done so already, it should consider transportation of the student to in accordance with the above.

NOW therefore, it is hereby

ORDERED on the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student's receipt of (628) hours of 1:1 tutoring which shall be scheduled at the Parent's discretion with no expiration date to be provided by ( . ”), , at a rate of $105.00 per hour and to pay $295 for the cost of diagnostic testing and $100 for ’s standard registration fee; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s receipt of an independent occupational therapy evaluation at a rate not to exceed the reasonable and fair market rate for such an evaluation in New York City; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for the 2020-2021 school year; and it is further

ORDERED on the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further

ORDERED on DEFAULT after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.

DATED: April 24, 2020

New York, New York Edgar De Leon - |.H.O.

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For #of Pages

N/A N/A N/A DOE N/A

05/21/19

CT-~ITOaTmMoUOWY

IHR PARENT 05

IEP 04/02/19 PARENT 16

Withdrawn / Not Received N/A PARENT N/A Report Card undated PARENT 06

OT Evaluation 01/16/19 PARENT 10

Results 05/19/19 PARENT 03

Prescribed Hours 05/20/19 PARENT 03

Withdrawn / Not Received N/A PARENT N/A Affidavit of 11/06/19 PARENT 09

Affidavit of Parent 11/13/19 PARENT 06

N/A N/A N/A IHO