New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591109 NYC: 241991

FINDINGS OF FACT AND DECISION

Names and Titles of Persons who appeared at the January 27, 2023 Hearing

For the New York City Department of Education: Redacted, Attorney for the School District

For the Parents:

Redacted, Parent Pro-se

I. Introduction and Procedural History

On November 14, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of Redacted ("Student") brought by her parent (“Parent” or “Parents”). A pre-hearing conference was held on December 13, 2022 and a status conference was held on January 17, 2023. A hearing was held on January 27, 2023. The District did not present a case and consented to the relief requested. The Parent presented documentary evidence and testimonial evidence. During the course of the proceedings, the District 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 10, 2023.

II. Background

On May 5, 2022, The District held an IEP meeting and recommended, inter alia, that the Student required special transportation. Specifically, the Student needs transportation from the closest safe curb location to the school, vehicle and/or equipment needs-air conditioning, vehicle and/or equipment needs-car seat, other accommodation, limited time travel, other accommodation, mini bus with door-to-door. The reason the District authorized this special transportation accommodation was because the Student suffers from a medical diagnosis of REDACTED.

On October 18, 2022, the Parent filed a due process complaint requesting that her daughter’s time travel be limited to 25 minutes. At the Hearing, the District consented to this request. The Parent provided medical documentation that stated that the Student could not be in a confined space for more than 25 minutes. Her travel time should be limited to 25 minutes each way. In addition, the medical doctor stressed the fact that the Student requires air conditioning 4 and heating to prevent overheating and hypothermia and that she should be monitored for seizures.

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 the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, 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 5 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 DOE 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. 6

In the instant matter, the District failed to meet their burden. There was no evidence to suggest that the Student was provided FAPE during the 2022/2023 school year.

REQUESTED RELIEF

Parent’s request a Findings of Fact ordering the District to limit the Student’s time travel to 25 minutes each way and to be reimbursed for travel expenses. According to 34 Code of Federal Regulations §300.34(a) and (c)(16), transportation is a related service to assist a child with a disability to benefit from special education…and transportation includes travel to and from school and between schools, and specialized equipment if required to provide special transportation for a child with a disability. I find that the Student is entitled to limit her travel to 25 minutes to and from school with the outlined accommodations on her IEP.As far as the reimbursement for mileage, that is denied as not having been included in the due process complaint as requested relief.

IV. Order

IT IS THEREFORE ORDERED, that:

1. The New York City Department of Education shall limit the Student’s travel time to and from her place of school to 25 minutes each way during the 2022/2023 school year to the best of their ability.

Dated: February 18, 2023

Marisa Carbone

MARISA CARBONE, 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. 8

EXHIBITS ADMITTED AT HEARING

None

A. Parent Exhibits Description Date Pages Due Process Complaint 10/4/22 8 pages

B. Due Process Complaint Updated 10/18/22 3 pages

C. Medical Documentation Redacted 9/27/22 3 pages

D. IEP 9/20/20 20 pages

E. IEP 5/16/21 32 pages

H. F. Gmail conversation regarding bussing time 9/9-9/13, 22 10 G. Gmail conversation regarding bussing with District 10/20-10/31, 22 8 Attendance Record Redacted 9/15-11/15, 22 1 page

I. Google Map Mileage to REDACTED 11/15/22 1 page

J. Google Mileage Map from REDACTED 11/15/22 1 page

K. Current Mileage for Medicaid in NY Impartial Hearing Officer None. 11/15/22 1 page