New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:591105 – NYC:241987

FINDINGS OF FACT AND DECISION

Case Number: 241987

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: February 2, 2023

Record Closed Date: February 2, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the February 2, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney For the Parent REDACTED, Parent REDACTED, Pediatrician

I. Introduction and Procedural History

On November 24, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student"). A pre-hearing conference was held on August 2, 2022, status conferences were held on September 9, 2022, September 28, 2022, October 7, 2022, and a one-day hearing was held on February 2, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent represented herself. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective February 2, 2023.

II. Background

Student’ latest Individualized Education Program (“IEP”) provides for special education transportation. (Exh. 1). Parent contends that the REDACTED violated Student’s rights by (a) failing to provide special education transportation as recommended by Student’s latest IEP and (b) failing to provide for a limited travel time of twenty-five minutes or less. (Exh. A and Exh. B). In support of her allegation, Parent provided documentation supporting her request, as well as the testimony of Student’s pediatrician. The REDACTED submitted evidence but did not otherwise present a case.

III. Discussion

FINDINGS OF FACT AND DECISION

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.

2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED submitted evidence but did not otherwise put on a case. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

SPECIAL EDUCATION AND LIMITED TIME BUSING

Transportation to and from school is a related service that must be included in a student’s IEP if the service is required for the student to benefit from special education. Pursuant to 300 CFR sec. 300.34(a), (c)(16), related services include transportation and such developmental, corrective and other supportive services as are required to assist a child with a disability to benefit from special education.

It is uncontroverted that the CSE Team recommended special education transportation. The September 14, 2022 IEP clearly provides for special education transportation, including transportation from the closest safe curb location to school, air-conditioned vehicle, car seat and limited travel time. (Exh. 1, page 26). Parent alleges that even with the additional support of an interim order ordering special education transportation, the REDACTED has failed to comply with the recommendations on Student’s IEP. (Tr. 55). The REDACTED did not defend its actions, and I order the REDACTED to provide special education transportation as recommended by Student’s IEP.

Parent also requests limited travel time of 25 minutes or less. In support of this request, Parent provided the both the testimony and documentary support of Student’s pediatrician. In a letter dated September 27, 2022, Student’s doctor recommended this limited travel time to prevent ketoses, emesis and regurgitation and requested monitoring for seizures. (Exh. C, page 1). The doctor testified in support of this request. (Tr. 36-8). The REDACTED alleges that this limited travel time of twenty-five minutes could not be guaranteed and that the REDACTED physician reviewed the documentation provided by Parent and determined that a route with fewer students would be preferable and acceptable under limited travel time. (Tr. 53 and Exh. 2). The September 14, 2022 IEP notes that medical documents with limited travel time were submitted to REDACTED for approval. (Exh. 1, page 26). According to the REDACTED, this approval was denied on November 2, 2022, well after the filing of the due process complaint. (Exh. 2). Although the REDACTED physician did not testify, according to the document, the doctor conferred with Student’s pediatrician. (Exh. 2, page 2). However, the REDACTED did not otherwise defend its position, and Parent claims that the bus ride between home and school is less than two miles. (Exh. I and Exh. J). Therefore, if Student remains in her present placement for the 2022-2023 school year, I order the REDACTED to provide limited time travel of twenty-five minutes or less.

During the hearing, Parent requested reimbursement for mileage between September 15, 2022 and present. (Tr. 45). However, there is no request for reimbursement in the due process complaint and Parent’s request is denied.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

The REDACTED shall provide special education transportation for the 2022-2023 school year, including limited time travel of twenty-five minutes or less, transportation from the closest safe curb location to school, a vehicle containing air conditioning and a car seat.

Dated: February 15, 2023

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School 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.

EXHIBITS ADMITTED AT HEARING

REDACTED

• • IEP, dated 9/14/22, 29 pages
• • REDACTED Physician Recommendation, dated 11/2/22, 2 pages Parent Exhibit Description Date Pages A Due Process Complaint October 4th, 2022   8 B Due Process Complaint Updated October 18th,2022 3 C Medical Documentation REDACTED  September 27th, 2022 3

INDIVIDUAL EDUCATIONAL PROGRAMS AND SERVICE PROGRAMS

D

E

IESP - REDACTED

IESP-REDACTED

June 8th,2021

June 7th, 2022

29

28

F Individualized Educational Program REDACTED September 22, 2022 28

G Individualized Educational Program updated transportation page REDACTED October 18, 2022 1

H Gmail Conversation regarding bussing  time Sept 9th-Sept 13th 2022 10

I Gmail Conversation October 20th 2022-Oct. 31st 2022 8

J Attendance Record [REDACTED] Sept. 15th -Nov. 15th 2022 1

K Google Map Mileage to REDACTED Date of download Nov 15th 2022 1

L Google Map Mileage from REDACTED Date of download Nov 15th, 2022 1

M Current Mileage for Medicaid in NY Date of download                                     Nov 15th, 2022 1

IESP

N IEP REDACTED May 5th, 2021 28

O IESP REDACTED June 7th, 2022 29 Impartial Hearing Officer

• • None.