New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 186379

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

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 01/28/20

Actual Record Close Date: 06/15/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date Attorney DOE 01/28/20 Attorney PARENT 01/28/20

Father PARENT 01/28/20

Mother PARENT 01/28/20 Dean PARENT 01/28/20

On September 3, 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 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”) - District: |, regarding the student's special education program.

After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 28, 2020. A list of the persons appearing at the hearing but not of the documents received in evidence in annexed hereto.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student's Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office ( “DOE-IHO”) on or about September 3, 2019. The DPC is carried under New York City ( “NYC”) Case No. 186379. The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief: (a) | Funding for the student’s placement at the private school for the 2019-2020 school year and transportation to and from this placement.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf, submitted (2)

documents in evidence and did not object to the Parent's. (T-5-8 & 14-5) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.

THE PARENT’S CASE

The Parents called (2) witnesses to testify on her behalf, both of whom testified on direct examination via affidavit pursuant to 8 NYCRR 200.5j[j][3][xii][f]. (P-G & P-H)

The DOE did cross examine the affiants. (T-19-26 & 30-2) The Parent also submitted (8) documents in evidence. The DOE did not object to any of the Parent's documents being received in evidence. (T-14) The testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DOE 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, submitted (2) documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case, and did not object to the Parent's documentary evidence. (See 20 U.S.C. 1415(f)(3)(e) & T-5-8 & 14-5) “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, nor did the agency serve the Parent with “Prior Written Notice’, which would provide 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 documentary evidence was not rebutted by the agency and the 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 uncontroverted in this case.

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 and that the Parent may be entitled to the proven relief she has requested. The DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2019-2020 school year.

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])

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 Parents’ 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 him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

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 no request for compensatory educational services in this case and in either case, 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 as 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, ]2) (See Schaffer v. Weast, 546 U.S. 49, 58-

62 [2005] (emphasis added)

Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2019-2020 school year.

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.” I do not find that the violation in this case meets the standard of a “gross violation” of FAPE.

I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may 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 & Cerra, Supra) As previously noted, 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. (Gagliardo & Frank G., Supra)

In sum, substance and relevant part, the evidence in this case is as follows: The first witness for the Parent is the academic dean at the private school. (P-G) He testified as follows:

4. As the first high school in New York City devoted specifically to students with learning disabilities, [PRIVATE SCHOOL NAME] has been a home to a smart creative community of students who have struggled in traditional school settings for more than 30 years. We currently have children from grades four through twelve.

5. Our students have been diagnosed with language processing disorders, nonverbal learning disabilities, and executive functioning difficulties. They are brought together here by their struggle and supported by a talented and diverse faculty that is dedicated to supporting them in their progress to become life-long independent learners.

7. [PRIVATE SCHOOL NAME]'s unique model of education for the individual provides intense skills remediation, while encouraging students to build independence, resilience, responsibility, self-awareness and selfadvocacy. We do this in our daily curriculum by providing each student highly individualized one-on-one support through our Focus Program, a skill-based curriculum, small, homogenous class groupings, an expert faculty, a great emphasis on social-emotional development, and a supportive learning community.

9. At the start of the 2019-20 school year [STUDENT NAME] presented as a bright and friendly child with a specific impairment in reading, written expression and math. [STUDENT NAME] exhibited academic weaknesses in reading accuracy, spelling, and written expression, as well as struggles with executive functioning. [STUDENT NAME] also had a history or low frustration tolerance in his school program prior to [PRIVATE SCHOOL NAME] due to his difficulty in the aforementioned areas.

12. For the 2019-2020 school year [STUDENT NAME] is grouped with a cohort of ten students, a grouping we know internally as [PRIVATE SCHOOL NAME] does not strictly group students by grade, however is composed of eleven 9" graders. These students were grouped together because they all struggle with decoding, written expression, planning and _ prioritizing assignments and _ attention maintenance. In addition, some struggle to follow directions correctly and follow through on all school related tasks due to weaknesses in the realm of processing speed. [STUDENT NAME] travels from class to class with this cohort of students, except for math, which is taught with a grouping tailored specifically to students’ levels and needs in that subject.

13. Instruction provided to [STUDENT NAME] and his group is carefully constructed, giving students the time necessary to process information. Repetition and a slower pacing of instruction is used in light of the students’ delays in processing speed, and we emphasize use of visual components, including photos, video, charts, graphic organizers, outlines, and cartoons, to help these students make connections with the material. We spend a lot of time working on executive functioning skills, including organization of materials, attention, self-awareness, self-control and time management.

14. The goals we set for [STUDENT NAME] and his peers are focused around strengthening decoding skills, developing stronger written expression, and building their academic problem-solving skills. These goals are addressed methodically on daily basis across all of [STUDENT NAME]'s content classes as well as in his Focus sessions.

22. [STUDENT NAME] has been making appropriate and nieaningful progress in his program to date. His teachers report earnest effort across the curriculum and we are pleased with the gains [STUDENT NAME] is continuing to make since last year. As a result his academic skills are getting stronger and he is displaying a growing independence with the academic skills and strategies he is working towards. (P-G)

On cross examination, the witness testified that that he did not have any help with his affidavit. (T-19-20) He did not speak with the student’s former school and does not have a New York State teaching license. (T-20) The student has (6) or (7) teachers at the private school. (T-21) There are approximately (233) students at the private school. (T-22) All of the students at the school have an educational disability classification. (Id.) They create a “group profile’ as opposed to an IEP and every classroom has a full set of Chromebooks. (T-25) All of their related services are incorporated into their daily program. (T-26)

There was no substantive testimony developed during the witness’ re-direct examination. (T-26-7) There was no re-cross examination of the witness. (T-27)

The Parent’s second and final witness is the student’s mother. (P-H) She testified as follows:

3. Due to the DOE's failure to provide adequate services to him in prior school years in public school, [STUDENT NAME] attended the [PRIVATE SCHOOL NAME] starting in the 2018-2019 school year, and we amicably resolved our tuition reimbursement case against the New York City Department of Education ("DOE") for that year. [STUDENT NAME] made very noticeable progress addressing his areas of weakness during that school year, which was encouraging to us, and even more so to him. [STUDENT NAME] was placed in a small group of similar students for all his classes and received reading and math instruction that was specialized to meet his needs and received daily 1:1 support from his Focus teacher.

This arrangement was very beneficial and allowed him to make a lot of progress in his reading, writing, and math skills, and also bolstered his selfconfidence.

4. Notwithstanding our lawsuit against the DOE, we were never contacted during the 2018-2019 school year to develop a more appropriate program for [STUDENT NAME]. In fact, [STUDENT NAME] had no IEP in effect as the 2019-2020 school year neared.

6. We signed our 2019-2020 school year contract with [PRIVATE SCHOOL NAME] in the spring of 2019 as this was the time when the school presented it to us and indicated that we must sign and provide a deposit in order to safeguard a seat for him. For some reason the contract doesn't have a date written on it, but I believe we signed it in March of 2019. Given the DOE's prior failures, we knew we needed to have an alternate plan for him as a backup. We felt confident signing this agreement in light of [STUDENT NAME]'s significant progress in the 2018

2019 school year, and all the more so given that the contract contained language allowing us to withdraw from the agreement if we opted to enroll [STUDENT NAME] in a public program as late as September 15, 2019.

8. We are very happy with the progress [STUDENT NAME] has made so far as a result of his attendance at the [PRIVATE SCHOOL NAME] this year. [STUDENT NAME] has made continued progress in his reading, writing, and math skills and has increased confidence as a learner as a result of the very supportive environment he is in. We feel the program he is receiving this year at [PRIVATE SCHOOL NAME] is appropriate to meet his needs.

9. We are paying tuition to [PRIVATE SCHOOL NAME] on a payment plan through Smart Tuition for the 2019-2020 school year and have satisfied our tuition obligation in accordance with our contract. (P-H)

On further direct testimony, the witness testified that the student gets to school via the New York City subway with a MetroCard that is provided for all high school students. (T-30)

On cross examination, the witness testified that she had assistance from her attorney in preparing her affidavit and did not submit a notice of a unilateral placement to the DOE until August. (T-31) There was no substantive testimony developed during the witness’ re-direct examination. (T-32-3) There was no re-cross examination of the witness. (T-33)

I find that the record above sufficiently establishes that the private school is an appropriate placement for the student's 2019-2020 school year but that the Parent's request for transportation services is unsupported by the record.

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, the record is devoid of evidence of the student's mobility, behavior, communication, physical, health needs, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the unavailability of private or public assistance. (Supra) In fact, the student's mother testified that the student gets to school via the New York City subway with a MetroCard that is provided for all high school students. (T-30) Accordingly, there is no indication in the hearing record as to the student's need for special transportation during the 2019-2020 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 in accordance with the above.

There is nothing in the record that supports a finding the Parents have not cooperated with the DOE. For all of the reasons stated herein, I find that the Parent is entitled to the tuition relief she seeks.

NOW therefore, it is hereby

ORDERED upon 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 Parents and/or direct pay the cost of the student’s tuition and related services at the private school for the entirety of the student's 2019-2020 school year; and it is further

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

ORDERED upon the DOE’s DEFAULT and 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: June 23, 2020

New York, New York Edgar De Leon - IHO

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

S. Number/Letter Title Dated For #of Pages IEP 05/31/18 DOE 19 &

L. Evaluation 08/27/18 DOE 09/03/19 05 pages

ITOAMMUOWY

IHR PARENT 03

Notice of Placement 08/21/19 PARENT 02

Neuropsychological Evaluation 12/2017 PARENT 12

Enrollment Contract 2019-2020 PARENT 05

Financial Aid Letter 06/09/19 PARENT 01

Schedule 09/16/19 PARENT 01

Affidavit of 01/24/20 PARENT 05

Affidavit of 01/28/20 PARENT 03

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