New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 185212

NYS Identifier Number

Student’s Name:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 12/12/19 & 02/27/20

Actual Record Close Date: 08/10/20

Hearing Officer: Edgar De Leon

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 1st Notice of IEP Meeting 07/09/18 DOE 03

02 2nd Notice of IEP Meeting 07/20/18 DOE 03

03 3rd Notice of IEP Meeting 08/13/18 DOE 03

04 Withdrawn / Not Received N/A DOE N/A

05 Closing Statement 03/17/20 DOE 09

A Notice of Uni-Placement 08/2018 PARENT 05

B-C Withdrawn / Not Received N/A PARENT N/A

D Report Card 2018-2019 PARENT 01

E Final Report Card 2018 PARENT 08

F Final Report Card 2019 PARENT 08

G Schedule 01/15/19 PARENT 02

H Enrollment Contract 2018-2019 PARENT 05

I Proof of Payment various PARENT 04

J Affidavit of 02/26/20 PARENT 06

K Closing Statement 03/18/20 PARENT 03

N/A N/A N/A IHO N/A

On July 13, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), 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 and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student attending a private school and the New York City Department of Education (“DOE”) - , concerning the student’s special education program. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on December 12, 2019 and February 27, 2020. The parties opted to submit written closing statements which were received on March 17, 2020 (D-5) and March 18, 2020. (P-K) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2018-2019 school year. At the impartial hearing, the Parent seeks the following relief:

(a) Full prospective tuition reimbursement for the Parent’s unilateral placement of the student at the private school; and

(b) If bussing has not been provided, reimbursement for the cost of transporting the student to and from school.

(c) Attorney fees.

THE DOE’S CASE

The DOE called (1) witness to testify on its behalf and submitted (4) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence on behalf of the DOE is as follows:

The gravamen of the DOE’s case is that the CSE was unable to complete an IEP meeting due to the noncooperation of the Parents’, that the private school is an inappropriate school for the student and that the equities favor the DOE because the Parent had no intention of placing this student in a public school and did not cooperate with efforts to develop an IEP for the student. (D-5) The DOE further argues that the private school was not “specifically designed” to meet the students “unique needs”, (citing Stevens v. N.Y.C. Dept. of Educ., 2010 WL 1005165 at 9 [S.D.N.Y. Mar. 18,

2010]), in that there is no evidence that the private school “provided modifications or special services to address the Students deficiencies” or a specific curriculum and individual goals for the Student.” (Id.)

The Parent also argues that only two of student’s teachers are certified to teach special education. (D-5 citing T-77) The DOE acknowledges that there is testimony in the record that the student progressed at the private school. (D-5 citing T-75-7 & P-J)

However, the evidence also establishes that the Parent enrolled the student in a small, self-contained class at a school that does not provide any mainstreaming opportunities.

(D-5)

Finally, in asserting that the equitable considerations do not favor the Parent in this case, the Doe cites to the record and argues the following:

The equities do not favor the parent because the parent did not seriously consider the public-school system when seeking special education services. Id. An IEP meeting for was scheduled

July 23, 2018. testified that three IEP Meetings were scheduled for Tr. 12/12/19 pg. 20. The July IEP meeting was rescheduled because the parents could not participate. Tr.

12/12/19 pg. 23. The August IEP meeting was rescheduled because parents did not want to go forward at that time. Id. The third IEP meeting did not go forward because Parents believed the meeting was at 12 p.m.

instead of 10:30 a.m. Tr. 12/12/19 pg. 19.

Additionally, Parents had already reenrolled the student and made two separate tuition payments for the 2018-2019 school year prior to an IEP meeting being held. Parent Ex. I. While a parent may like their selected unilateral placement they must also consider the school recommended by the CSE. Parent’s made a deposit with the May 5, 2018. This is a case of the parents’ preference for placement at a private school, with no true intent to place the student back in a public school, indicated by the lack of cooperation throughout the IEP process.

(D-5)

The psychologist who testified for the DOE stated that on September 7, in 2018, he was assigned to have an IEP meeting for the student and tried to call the Parent to have the IEP meeting, but they told him that they thought the meeting was at noon, instead of 10:00 am. (T-18) The Parents said that they could be at the meeting by

11:30, but they had another meeting at noon and told the Parents their meeting it would have to be rescheduled. (T-18-9)

On cross examination, the witness testified that just based on what he read in

“SESIS” he thinks the Parents said they could not participate in the meeting scheduled for July of 2018. (T-23) For he August 2018 meeting, the “SESIS” log indicates the Parents came in for the meeting, and then they said they didn't want to go forward for some reason and wanted to reschedule. (Id.) There was re-direct examination of the witness. (T-28)

THE PARENT’S CASE

The Parent called (1) witnesses to testify on her behalf via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (9) documents into evidence. (P-K) In sum, substance and relevant part, the testimony and documentary on behalf of the Parent is as follows:

The Parent notes that the DOE has failed to offer the student a FAPE for the 2018-2019 school year and further argues that it is absurd for the DOE to argue that the private school I not appropriate for the student, when he has been placed there during the prior 2017-2018 school year and made significant progress during that school year.

(T-6) For the IEP meeting in July of 2018, the DOE sent notice to the Parent’s prior address, which had been updated with the DOE prior to the school year. (T-7) For the meeting on September 7, 2018, the meeting was scheduled for 10:30 a.m. but the Parents thought it was scheduled for 12:00 noon. (T-8) They were told that the meeting would be re-scheduled, but it never was. (Id.)

The student’s mother testified that for the 2017-2018, which was the student’s 7th grade year and for 2018-2019, which was the student’s 8th grade year, the student attended his current private school. (T-33) To the best of her memory, there is a thing in the contract that says if they were offered a DOE placement, they could walk away from the private school contract. (T-36) DOE exhibit “3”, erroneous states a prior address for them. (T-38) She never received an IEP for the student’s for the 2018- 2019 school year. (T-46)

On cross examination, the witness testified that she signed a document saying that they were borrowing money from her sister for the tuition that they would be repaying it in full, without interest. (T-50) The student is now in a regular classroom, but at the private school the student was in a small group classroom in a class that varied between (8) and (12) students. (T-51) She updated her address with the Doe through her attorney. (T-52) She moved in June of 2017. (Id.) There was no substantive testimony developed during the witness’ re-direct examination. (T-54-5)

There was no re-cross examination of the witness. (T-55)

The Dean of the private school testified that the student is a very strong student who is curious and loves to learn, but struggles with cognitive flexibility, social skills, self-regulation and anxiety. (P-J) The program designed for the student was highly structured and skill based. (Id.) The student made progress during the 2018-2019 school year in his goal areas, he was better able to connect socially, resolve conflicts independently, problem solve more effectively, write essays with more detail, understand abstract concepts and be open to and apply teacher feedback. (Id.) The student attended the school during the 2017-2018 school year. (Id.)

On cross examination, the witness testified that there were (12) students in the student’s class during the 2018-2019 school year. He had four main content teachers, a focus teacher and then an art and a PE teacher, for a total of seven. (T-76) There was no substantive testimony developed during the witness’ re-direct examination. (T-79-83) There was no re-cross examination of the witness. (T-83)

In her written closing statement, the Parent accurately cites to the record and summed up her argument that the private school was appropriate for the student as follows:

attended the for the 2018-2019 school year. Tr. at 47. The Parents had weekly communication with ’s FOCUS teacher during the 2018- 2019 school year. Tr. at 47-48. The Parents had regular email and telephone contract with , ’s dean at . Tr. at 48. The Parents had regular communication with each of ’s teachers in the form of written reports and parent-teacher conferences and on an as needed basis. Tr.at 48.

Testimony regarding the program at the and

’s progress in this program during the 2018-2019 school year is contained within the Affidavit of Sandy Haggerty, entered into the record as Parents’ Exhibit J. This information makes clear that the program was reasonably calculated to convey meaningful educational benefit upon . Further, the Progress Reports entered into the record demonstrate that did, in fact, make progress at during the 2018-2019 school year. See Exs. D, F.

made “astounding progress” at the during the 2018-2019 school year. Tr. at 48.

’s progress was so significant that he was able to be transitioned to a mainstream public school for the 2019-2020 school year.

Tr. at 48-49. The Parents borrowed the majority of the tuition from one of their siblings and have a legal obligation to repay this sum of money. Tr.

at 49. See Ex. I. (P-K)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley,

458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and 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.

(See 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] and 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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [ .N.Y. Aug. 21, 2008] and 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379)

Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (

“LRE”). (See 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]; 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] and Patskin v.

Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.

(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) 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. (See 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, 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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during 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], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

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 seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006]

[quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents 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"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-

133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533

[ .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, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch.

Dist., 2008 WL 53181 at *5 [ .N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v.

V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir.

Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

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. (SRO No. 04-049)

The uncontroverted testimony on behalf of the Parent establishes that the goals on the student’s IEP are deficient in addressing the student’s speech and occupational therapy needs. (Supra) Parents are not to be deprived of the opportunity to discuss the draft goals at the CSE meeting. (See 34 C.F.R. Part 300, Appendix A, Section IV, Question 32, SRO Nos.: 01-073 & 90-13) Here, the school psychologist testifying for the DOE could not recall what documents were reviewed during the student’s IEP meeting and conceded that there were no goals included in the student IEP for speech. (P-N citing T-53, 64 &

80) This amounts to a denial of FAPE.

The Parent only needs to demonstrate that the private school provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (Gagliardo & Frank G., Supra) Here, the DOE failed to provide the student with an IEP for the 2018-2019, which amounts to a denial of FAPE and the record establishes that the Parent did make efforts to attend the scheduled IEP meetings, even if, all be it later or at a different time from when they were originally scheduled. (Id.) Notices were sent to the Parent’s previous address, despite her giving the agency notice that she moved in June of 2017. (Id.) The testamentary and documentary record clearly establishes that the private school was an appropriate placement for the student’s 2018-2019 school year. (Id.) There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE.

Therefore, I find that equitable considerations do not bar an award of tuition reimbursement to the Parent.

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]) 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, there is no indication in the hearing record as to the student's need for special transportation during the 2018-2019 school year or any indication that special transportation was previously requested. There is no IEP in evidence providing for the student to receive special education transportation services. Additionally, there is no evidence in the hearing record as to how the student was transported to and from the private school each day during the 2018-2019 school year. Accordingly, the hearing record does not support a finding that the district 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 DOE has not done so already, it should consider transportation of the student to the private school during the 2108-2019 school year in accordance with the above.

For all of the reasons stated herein, I find that the Burlington/Carter test is satisfied in favor of the Parent and that she has met her burden under Schaffer to prevail in her request for tuition reimbursement.

NOW therefore, it is hereby

ORDERED 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 tuition and related services at the private school for the entirety of the student’s 2018-2019 school year; and it is further

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

ORDERED 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 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: August 17, 2020 _____________________________

New York, New York Edgar De Leon - IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the PublicSchool 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. (Rev. 07/09/20)

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 12/12/19

Psychologist DOE 12/12/19 Attorney PARENT 12/12/19

Mother PARENT 12/12/19

The Department of Education failed to develop an IEP for the 2018-2019 school year for

. Tr. at 10.

The Department scheduled an IEP meeting for 10:30am on September 7, 2018, however, the Parents mistakenly believed the meeting was to take place that day at noon. The Parent was en route to the IEP meeting and the Department’s employees informed the Parents that the meeting would have to be rescheduled. See Tr. at 18-19. The Department’s witness testified that he had not received or reviewed any information about prior to the IEP meeting. Tr. at 24.

attended the for the 2017-2018 and the 2018-2019 school years. Tr. at 33. The Parents had, at a minimum, weekly email interactions with his

FOCUS teacher. Tr. at 33. The Parents participated in regular parent-teacher conferences, received report cards, mid-year and end-of-year reports, and reports of standardized testing administered by the school. Tr. at 34.

The Parents signed an enrollment contract with the at the end of May 2018. Tr. at 35. At that time, the Department of Education had failed to schedule or hold an IEP meeting or recommend any school placement for since 2016. Tr. at 36. The

Parents were concerned that they would not have any program or school placement for September 2018 and so they signed the contract at that time. See Tr. at 36. The Parents were aware that they were permitted to walk away from the contract’s obligations if they accepted a program and placement from the Department of Education. See Tr. at 36; see also Ex. H at 3.

The Department scheduled an IEP meeting for July 20, 2018. See Ex. 1. However, the Department failed to actually notify the Parents of the scheduled meeting, and instead sent the meeting notice to an old address for the family. See Tr. at 38. The Parents had updated the Department of the move in June 2017. Tr. at 52.

The Department scheduled an IEP meeting for August 13, 2018. See Ex. 2. The Parents arrived to participate in this meeting, however, the Department had made an error when scanning in the student’s progress reports and did not have complete copies of these documents. The

Parents offered to provide them with digital copies of these documents at the meeting, however, the Department’s employees asked to reschedule the IEP meeting. See Tr. at 40-41. The Parents were ready, willing, and able to participate in this IEP meeting. Tr. at 43. The Department’s employees asked that the meeting be delayed. See id.

The Department scheduled an IEP meeting for September 7, 2018. See Ex. 3. The Parents mistakenly noted that the meeting was scheduled for 12 noon, when it was actually scheduled for

10:30 am. See Tr. at 44-45. The Parents were on their way to the meeting at 10:30 and offered to participate in the IEP meeting by telephone, however, the DOE employees asked to reschedule the IEP meeting. Tr. at 45-46. The Parents expressed concern about further delaying the IEP meeting as the school year had begun and still had no placement, however, the Department’s employees asked to reschedule the meeting. See id. The Department failed to schedule any other meetings. No IEP meeting was ever held for for the 2018-2019 school year. Tr. at 46. The Parents believe that they cooperated fully with the Department. Tr. at 47.

attended the for the 2018-2019 school year. Tr. at 47.

The Parents had weekly communication with ’s FOCUS teacher during the 2018-2019 school year. Tr. at 47-48. The Parents had regular email and telephone contract with , ’s dean at . Tr. at 48. The Parents had regular communication with each of ’s teachers in the form of written reports and parent-teacher conferences and on an as needed basis. Tr.at 48. Testimony regarding the program at the and ’s progress in this program during the 2018-2019 school year is contained within the Affidavit of Sandy Haggerty, entered into the record as Parents’ Exhibit J. This information makes clear that the program was reasonably calculated to convey meaningful educational benefit upon . Further, the Progress Reports entered into the record demonstrate that did, in fact, make progress at during the 2018-2019 school year. See

Exs. D, F.

made “astounding progress” at the during the 2018- 2019 school year. Tr. at 48. ’s progress was so significant that he was able to be transitioned to a mainstream public school for the 2019-2020 school year. Tr. at 48-49. The

Parents borrowed the majority of the tuition from one of their siblings and have a legal obligation to repay this sum of money. Tr. at 49. See Ex. I.

Wherefore, the Parents request that the Hearing Officer direct the Department of Education to reimburse them in the amount of $65,900. See Ex. H.