New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST

Case Number: 189779

NYS Identifier Number N/A

Student’s Name: - To be Edited

and Removed by the NYC-DOE

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 04/22/20 & 06/25/20

Actual Record Close Date: 11/09/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 04/22/20 (T) 06/25/20 (T) Attorney DOE 04/22/20 (T) Attorney PARENT 04/22/20 (T) 06/25/20 (T)

Mother PARENT 04/22/20 (T) 06/25/20 (T) Private School PARENT 04/22/20 (T)

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

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

PARENT’S EXHIBITS

Exhibit Description Date Pages

A Unliteral Placement Notice 6/14/201 2

B Due Process Complaint 9/26/201 4

C Program description Undate 7

D Enrollment Contract 19-20 3

E Summer Progress Report 19-20 8

F Progress Report (1st semester) 19-20 22

G Neuropsychological Evaluation May 23

H Parent Affidavit 4/15/202 2

I Affidavit 4/15/202 14

***Parent’s exhibit “G” was not formally received in evidence***

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

On October 1, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 and of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parents of an year old student attending a private school and the New York City - Department of Education (“DOE”) - , 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 April 22, 2020 and June 25, 2020.

A list of the persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND

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

filed by the student’s Parent through her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about September 26, 2019. The DPC is carried under New York City (“NYC”) Case No.

189779. Therein, the Parent alleges that the DOE has failed to provide the student with a “free and appropriate public education” (“FAPE”) for the 2019-2020 school years. At the impartial hearing, the Parent seeks the following relief:

(a) A finding of a denial of FAPE for the student’s 2019-2020 school year; and

(b) An order requiring the DOE to make direct payments to the private school for tuition owed and reimbursement to the parent for any monies paid for the 2019-2020 school year; and

(c) An order providing the student with transportation to and from her school placement; and

(d) Attorney’s fees and expenses; and

(e) Any and all other relief that may be warranted based upon the evidence at hearing and deemed appropriate by the IHO.

THE DOE’S CASE

The DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. (T-6-9 & 13) In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent called (2) witnesses to testify on her behalf, two who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-H & P-I) The DOE cross examined the Parent’s affiants. (T-22-49 & 60-3) The Parent also submitted

(8) documents in evidence. The DOE did not object to the Parent’s documents being received in evidence, with the exception of the student’s Neuropsychological Evaluation dated May of 2019. (T-11 & P-G) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION - DEFAULT & INQUEST

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

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

of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd 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 [2nd Cir. 2000]) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and

(b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of

Educ. V. Rowley, 458 U.S. 176, 206-7 [1982]) The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1])

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v.

Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

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

049).

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

(Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 at 192 [2d Cir.

2005]) “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34

C.F.R. § 300.148)

The DOE failed to call any witnesses to testify on its behalf, did not submit any documents in evidence, failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) & T-6-9 & 13) “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, 4th 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 l[2nd PRIVATE SCHOOL INITIALS] 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 (1st 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 for the 2019-2020 school year and that the Parent may be entitled to the proven relief he has requested.

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)

Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs.

(See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F.

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

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

There is 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 is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ. The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S.

49, 58-62 [2005] (emphasis added)

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

In sum, substance and relevant part, the testamentary and documentary evidence in this case indicates the following. The first witness for the Parent is the Assistant Division Head of the private school . (P-I) He stated:

7. is an independent school for students with a broad range of developmental disabilities. The students have a variety of DOE disability classifications and typically have language-based learning disabilities, academic deficits, and/or deficits in adaptive daily living skills.

8. Approximately 305 students ages 5 through 21 attend the and Institute for the 2019-2020 school year. has approximately 117 students ages 5 through 14.

12. We provide intensive occupational therapy, speech and language therapy, physical therapy, counseling, and a Mind Body Move class designed by the Chair of our Physical Therapy department.

23. I have known since July 2019 when she began attending as a seventh-grade student. I am familiar with her learning challenges and diagnosis of Autism.

24. was offered admission to after review of her application, school records, evaluation, and school visit. During the admissions process for , she and her family were interviewed by the Admissions team. In addition, was observed by the school team during her visit to . Thereafter, the team met to discuss the observations and she was recommended for acceptance to our middle school.

25. For the summer of 2019, was enrolled in a class of twelve students with a head teacher, an assistant teacher, and three paraprofessionals. Classroom teachers work closely with related service providers throughout the week to incorporate generalization of skills within classroom work throughout each day. Related service providers push-in to work directly with students within classroom instruction.

26. ’s summer program was designed to maintain her academic and social skills and consisted of instruction in literacy & thematic work, mathematics & problem solving, Jumpstart, yoga, art therapy, music, community activities, pool, counseling, speech therapy, occupational therapy, and KinG, our adaptive physical education program.

30. Overall, throughout the summer program, made significant progress in multiple areas. adapted socially and increased her academic participation as the summer progressed.

became friends with the members of her class and expressed preferred peers. was also able to express her needs academically, and advocate for assistance when completing academic activities. For example, when first came to , she could not sustain attention during the full academic activity time. By the end of the summer term she was not only able to sustain attention, but also ask questions and make her preferences known while doing activities such as daily reading journals and math exercises. also made progress in her ability to follow directions and navigate the building. There was a notable difference between her transition into the summer program and, as a result of her participation in the summer program, her transition to the academic year. By the end of summer, she had shown progress with following directions from staff and transitioning between classes, needing less support than when she started. As a result, the transition to the new school year was smoother than when she started at

CSA. Having established routines and being familiar with the building and staff from the summer helped with her transition to the new school year.

’s summer progress report contains accurate descriptions of her educational program and progress.

31. Beginning in September 2019, received a new schedule, which consisted of educational instruction in humanities (reading, writing, and social studies), math, science, WORM lab, technology, music, and adaptive physical education. In addition, she participates in Jump Start, art therapy, yoga, mind body move, adaptive skills, counseling, occupational therapy, speech-language therapy, and physical therapy.

33. For the school day, is in a class of 12 students, with two teachers and two paraprofessionals (12:2:2) for all academic and therapeutic classes. ’s class placement was determined through intensive team discussion at the start of the school year based on her academic and therapeutic strengths and needs, considered alongside those of her peers, to place her with students with similar strengths and needs.

43. At , progress reports are produced two times a year. We also use a rubric to evaluate student levels in our progress reports. This rubric was utilized in ’s most recent progress report in January 2020. The date on the submitted report is inaccurate due to an error in our student database system resulting from moving from a trimester to a semester reporting schedule. The rubric is designed by the school and is closely linked to our mission to help our students become independent. We work to provide supports that enable consistent performance of skills and work towards total independence. For example, the student may be working on a task and initially require hand-over-hand support to complete the task. By the middle of the year, the student may only require a reminder to complete the task, and by the end of the year, the student may be able to complete the task independently. ’s January 2020 progress report contains accurate descriptions of her educational program and progress.

49. Based on my professional opinion, experience and interactions with , I believe is an appropriate placement for her.

’s program provides the individualized

instruction she requires, including a small student to teacher ratio in a positive classroom environment in addition to weekly counseling, speech and occupational therapy sessions tailored to meet her needs. The program provides with significant supports in her academics, language and other related services and increases her social and life skills, so that she is a more independent student. (P-I)

On cross examination, the witness testified that he got all the information in his affidavit from reports that were created by the classroom teachers, and through discussion with the classroom teacher as well in. (T-31) They assess their students' skills through performance-based assessments, typically not in the format of a formal test except when they are doing formal assessments throughout the year called Star

360 and the tests are not determined because the private school does not use grades.

(T-38) Attendance is taken during remote learning. (T-39-40) The student developed increased independence during the summer by increasing confidence and familiarity with her peers and in her ability to participate in instructional tasks. (T-43) There are no students at the private school with behavioral disorders as their primary disability. (T-49)

The Parent’s second and final witness is the student’s mother. (P-H) In sum, substance and relevant part, the witness testified as follows:

7. The DOE did not hold an annual review or provide with an IEP for the 2019-2020 school year.

9. I signed an enrollment contract with the

School which obligates me to pay $82,225 in tuition for the 2019-2020 School Year. (P-H)

The witness further testified that in paragraph marked number (6), should be corrected to read 2015 as the last written IEP for the student is June 3, 2015. (T-59) In paragraph (12) it states that the student had live sessions twice a week, which was correct at the time of the document, but within that week it was changed it to five times a week. (Id.)

On cross examination, the witness testified that she wrote a draft of her affidavit with the help of her lawyer. (T-60)

The DOE’s default is a tacit concession that the student was denied a FAPE for the 2019-2020 school year. (Supra) Additionally, the testamentary and documentary evidence summarized above and received in evidence clearly indicates that the private school was an appropriate placement for the student for the 2019-2020 school years, in that it is "reasonably calculated to enable the child to receive educational benefits."

(See Frank G., Gagliardo, and Berger, supra)

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 l[2nd PRIVATE SCHOOL INITIALS] 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. L[2nd PRIVATE SCHOOL INITIALS] §§ 4401[1], 4402[4][a], see also Educ. L[2nd PRIVATE SCHOOL INITIALS] § 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 as to the student's need for special transportation during the 2019-2020 school year and no verifiable indication that special transportation was previously requested. There is no IEP in evidence indicating that the DOE has agreed to provide the student with special transportation services.

Accordingly, the hearing record does supports a finding that the student would be denied a FAPE if there was a lack of provision for special transportation.

However, this does not preclude 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 may consider transportation of the student to the private school in accordance with the above.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED upon the DOE’s DEFAULT, Its CONCESSION and after INQUEST that the DOE denied the student a FAPE for the 2019-2020 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student’s tuition and related cost at the private school for the entirety of the student’s 2019-2020 school years thereat; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST that the DOE shall also conduct a re-evaluation of the student in all areas of her suspected disabilities not evaluated within the last two years, for the 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION and after INQUEST that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2021-2022 school year; and it is further

ORDERED upon the DOE’s DEFAULT, It’s CONCESSION 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: December 17, 2020 _____________________________

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

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 L[2nd PRIVATE SCHOOL INITIALS] 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)