NY IHO #189174: New York City... | Special Education Law

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FINAL ORDER - DOE DEFAULT “NO APPEARANCE” & INQUEST - PARENT

SUBMISSIONS

Case Number: 189174

NYS Identifier Number

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/16/20

Actual Record Close Date: 10/19/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

“No Appearance” N/A DOE 04/16/20 Advocate PARENT 04/16/20 (T)

“No Appearance” N/A PARENT 04/16/20

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT’S EXHIBITS

ITEM DATE DESCRIPTION NUMBER

NUMBER OF PAGES

A 09/1611 Impartial Hearing Request 3

B 09/1611 Individualized Education Services Program 8 c 0911511 Parent Retainer 2

D 03/25/20 Affidavit of Services 1

E Oral Transliterator Training 10

F Program Description 4

G Oral Transliterator Description 1

H 09/15/19 Agency Contract 1

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

On October 4, 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 April 16, 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 advocate(s), on or about September 16, 2019 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) An order that the DOE pay for an oral transliterator who will work for

$80.00 per period of service.

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 April 16, 2020, and the DOE did not appear and the Parent having agreed to have this decision/order made on the basis of the submission of testamentary evidence pursuant to 8 NYCRR 200.5[j][3][xii][f] (P-D), which because the DOE did not appear the agency has waived its right to challenge via cross examination and the Parent’s unopposed documentary evidence (T-1-12 & P-D); and

Whereas the Parent appeared through her advocate(s), assigned and the DOE having failed to appear; and

Whereas the DOE waived its right to a hearing on the merits; and a proposed “Final Order” consented to by the Parent based upon the Parent’s uncontroverted testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of both parties (Id.); 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 appear and submit any testamentary or documentary evidence to meet it burden under the law; 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 consisting solely of the Parent’s submissions 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 affidavits pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-D) and the DOE having failed to appear and thus waived its right to contest that testimony and/or cross examine the Parent’s witnesses (T-1-12); and

Whereas the Parent’s submissions are completely and unequivocally 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 this IHO having determined that the Parent’s consent to the manner of determining this “Final Order” was made knowingly, intelligently and voluntarily; and

Whereas the Parent’s testamentary and documentary evidence, oral arguments, discussions, concessions 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 indication in the hearing record as to the student's need for special transportation during the relevant school year or any indication that special transportation was previously requested; and

Whereas 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 years; 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, the student’s IEP mandates that he received special transportation and if it did not, it would 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 providing transportation of the student to his private services as ordered below in accordance with the above; and

Whereas the completely uncontroverted testamentary and documentary evidence submitted by the Parent need not be repeated here as it is annexed hereto for the benefit of the reader.

Now, therefore, it is hereby