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FINAL ORDER - DOE DEFAULT & INQUEST - PARENT SUBMISSIONS
Case Number: 188723
NYS Identifier Number
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 05/14/20
Actual Record Close Date: 10/19/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 05/14/20 (T) Attorney PARENT 05/14/20 (T)
Mother PARENT 05/14/20 (T) Witness PARENT 05/14/20 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
DOE’S EXHIBITS
Number Date Document Number of Pages
1 04-08-2019 Individualized Education Program (IEP) 17
2 04-17-2019 Prior Written Notice (Notice of Recommendation) 4
3 05-21-2019 School Location Document 4
04 05/15/20 E-Mail 01
PARENT’S EXHIBITS
Exhibit Description Date Pages
A DPC 9/10/2019 3
B Psychological Summary Report 10/9/2018 6
C Preschool Progress Report Dec. 2018 17
D Ten-Day Notice 8/14/2019 1
E Program Description Undated 5
F Enrollment Contract 3/28/2019 2
G Affidavit of Payment 1/13/2020 1
H 2019-2020 Class Schedule Undated 1
I First Trimester Report Card Nov. 2019 19
J Affidavit of 05/15/20 06
N/A N/A N/A IHO N/A
On September 19, 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”) - , 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 of and with the consent of the parties, or for good cause, the impartial hearing was held on May 14, 2020. A list of the persons who appeared via affidavits and the documents entered into evidence is annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”)
filed by the student’s Parent’s attorney(s), on or about September 10, 2018 and carried under New York City (“NYC”) . The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”)
for the 2019-2020 school year. At the impartial hearing, the Parent request the following relief:
(a) Tuition reimbursement and/or prospective funding, award and implementation of specialized transportation, related services, compensatory services, attorney fees, and any additional relief the IHO may deem just and equitable.
FINAL ORDER
The Parents’ DPC having been duly filed 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; and
Notice having been duly given to the DOE; and
The matter having come on for a final “impartial hearing” before this IHO on May 14, 2020, and this decision being made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-J), which the DOE not cross examine
(D-4) and the Parent’s unopposed documentary evidence (T-14); and
Whereas the Parent appeared with his attorney(s), , attorney assigned and the DOE by its representative assigned; and
Whereas the parties thus to agreeing to an “inquest” on the Parent’s request for relief and a proposed “Final Order” being based upon the Parent’s uncontroverted testamentary and documentary submissions (T-11, 14 & D-4); and
Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-
016); and
Whereas the DOE having failed to submit any testamentary evidence, but submitted (4) documents in evidence to meet it burden under the law (T-1-11 & D-1-4); and
Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and
Whereas there being nothing in the record that sustains a finding that the Parent has not cooperated with the CSE; and
Whereas the Parent has submitted the testimony of (1) witness on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-J) and the DOE having declined to cross examine the affiants (D-4); and
Whereas the Parent’s testamentary and documentary submissions are uncontroverted and need not be repeated herein as they are annexed hereto for the benefit of the reader; and
Whereas the DOE has failed to meet its burden under the law and the Parent’s submission clearly reflects that the relief sought meets the unique needs of the student, supported by such services as are necessary that permits the student to benefit from that relief. (Gagliardo & Frank G., supra); and
Whereas there is no evidence that the Parent has not cooperated with the DOE;
and
Whereas the parties’ oral arguments, discussions, concessions, testamentary and documentary evidence and this order having been recorded and annexed hereto; and
Whereas 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]); and
Whereas 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]); and
Whereas 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); and
Whereas 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]); and
Whereas 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]); and
Whereas 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]); and
Whereas 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); and
Whereas in this case, there is no request for special transportation during the relevant school year, none noted on his IEP dated April 8, 2019 (D-1), or any indication that special transportation was previously requested; and
Whereas 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 relevant school year; and
Whereas 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; and
Whereas 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]); and
Whereas if the DOE has not done so already, it may consider transportation of the student to his private school in accordance with the above; and
Whereas the DOE’s default constitutes a concession of a denial of FAPE and the uncontroverted testamentary and documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief.
Now, therefore, it is hereby
ORDERED upon the DOE’s default and its tacit concession of denial of FAPE, that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition and related cost at the private school for the entirety of the student’s 2019-2020 school year thereat; and it is further
ORDERED that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for his 2020-2021 school year; and it is further
ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related 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 “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: October 22, 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)