New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595835 - NYC: 245508

FINDINGS OF FACT AND DECISION

Student’s Name: 1 [REDACTED] (“student”)

Date of Birth: [REDACTED]

School District: NYC # [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: 01/31/2023

Date(s) of Hearing: 06/06/2023

Actual Record Closed Date: 06/14/2023

Date of Decision: 06/14/2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.

1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/06/2023

For the Student:

[REDACTED] (Parent’s Counsel), [REDACTED] (“Parent”)

For the Department of Education:

[REDACTED] (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on January 31, 2023. (Ex. i).^[2] In the DPC, Parent alleges that the Department of Education (“DOE”) failed to provide the mandated transportation from the student’s individualized education plan (“IEP”) for several weeks, causing the student to miss all his academic instruction and related services for sixteen school days and resulting in a denial of a free appropriate public education (“FAPE”). (Ex. i-1-5).

I was appointed to hear the matter on February 9, 2023. On March 13, 2023, the parties appeared virtually for a Pre-Hearing Conference (“PHC”). At an April 5 status conference, the parties jointly requested and were granted an extension for settlement negotiations. (See SC Transcript 4.5.23; Order of Extension). The parties were ultimately unable to reach a timely resolution, and during a May 8 status conference, Parent’s Counsel requested and were granted an extension for witness availability and a hearing date was set. (See SC Transcript 5.8.23; Order of Extension2).

A virtual due process hearing (“DPH”) was held on June 6, 2023. It was a closed hearing. The Parent was present and represented by Parent’s Counsel. The DOE Representative was also present. At the DPH, the DOE entered no exhibits and called no witnesses. (Tr. 4).^[3] Parent entered into evidence eight exhibits (A-H) and testified as the only witness. (Tr. 5-6). Oral closing arguments were made on the record. (Tr. 24-27). After the hearing, Parent’s Counsel submitted supporting case law by email. (See DPH Parent Case Law Email). The record was closed on June 14 after receipt of the hearing transcript.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

The student is in first grade and is classified as a student with Other Health Impairment. (Ex. i-2; Tr. 13). He has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). (Ex. C-7). On June 15, 2022, the DOE convened a meeting of the committee on special education (“CSE”) and developed an IEP for the student for the 2022-23 school year, which included an integrated co-teaching (“ICT”) class and related services of counseling^[4] twice per week (once individually and once in a group) and speech language therapy (“SLT”)^[5] twice per week in a group of three. (Ex. i-3; C-14). On September 29, 2022, the CSE reconvened and added specialized transportation (from the closest safe curb location to school) to the student’s IEP. (Ex. i-3; E-3, 10). The 9/29/22 IEP has an implementation date of October 13, 2022. (Ex. E-1). Despite repeated efforts by Parent, busing for the student did not begin until November 14, 2022, causing the student to miss a considerable amount of school. (Ex. i-3-4). Parent is seeking compensatory education in the form of tutoring to make up for the missed academic instruction. (Ex. i-5-6).

ISSUES

Parent contends that the DOE’s failure to provide transportation for the student until November 14, 2022, denied the student a FAPE for the 2022-23 school year. (Ex. i; Tr. 7-8, 25-26).^[6] Parent seeks 100 hours of compensatory individual tutoring in reading, writing, and math, at a provider of the Parent’s choosing (“Service Provider”) at a rate of $150 per hour to make up for the student’s missed academic instruction. (Ex. i-5-6; Tr. 26-27). At the hearing, the DOE conceded that busing did not commence on time but argued that the district had offered alternative transportation in the form of a ride-share (like Uber), so the DOE was not ultimately responsible and there was no denial of a FAPE. (Tr. 19, 24). Parent countered that the alternative transportation offered by the DOE did not conform to the IEP mandate^[7] and was inappropriate because the six-year-old student was too young to travel alone in a car service. (Tr. 26). Despite their argument that there was no denial of a FAPE, during summations the DOE conceded that the equities “may still balance in the interest of the parent and student in receiving compensatory services.” (Tr. 25). The DOE did not dispute the number of hours requested, the qualifications of the Service Provider, or the reasonableness of the requested rate.

FINDINGS OF FACT 8

The student began the 2021-22 school year in the first grade, but ultimately was placed back in kindergarten because “he lacked foundational skills for reading.” (Ex. B-3). During the 2022-23 school year, the student has been in foster care,^[9] but Parent retains educational decision-making rights for the student. (Ex. i-2-3; Tr. 11). Parent participated in the June 15 CSE meeting, but not the September 29 meeting. (Ex. i-3; E-22). Busing was requested through the Office of Pupil Transportation, and then the CSE reconvened to add transportation to the IEP. (Ex. i-3). At some point at the start of the school year, Parent filed for an emergency court hearing to address the student’s nonattendance at school. (Tr. 17, 19-20). The student was unable to get to school without busing. The student’s foster parents were unable to transport him, and Parent was not allowed unsupervised visits with the student, so she was unable to 8 Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well. assist them in taking the student to school. (Ex. i-4; Tr. 13, 17-18, 22). The 9/29/22 IEP indicates that the student requires transportation due to his ADHD, emotional regulation challenges, and family challenges. (Ex. E-20). The 6/15/22 IEP notes these same challenges (Ex. C-5-6), so it is unclear why transportation was not included in the earlier IEP.

After transportation was added to the student’s IEP, the DOE did not schedule a bus route for approximately six weeks. (Ex. i-3-4). In the interim, the DOE offered to transport the student via Uber ride-share. (Ex. i-4; Tr. 19). However, due to the student’s young age, the judge in the emergency hearing determined that this service was inappropriate for the student. (Tr. 19-20). Accordingly, due to the lack of appropriate transportation, the student missed 20 days of school between the date of the IEP and the date it was implemented. (Ex. i-4; H-1). He was also late five times, although it is unclear from the record how late and which classes he missed those days. (Ex. H-1). Since the student’s IEP provided one ICT period of math and three ICT periods of ELA per day (Ex. C-14; E-15), he missed at least 20 math periods and 60 periods of ELA, in addition to his other classes. As this period took place over approximately six weeks of school, he also would have missed approximately twelve counseling and SLT sessions (See Ex. C-14; E-15; H-1). The student was already behind in school^[10] and fell further behind as a result of this prolonged gap in services. (Tr. 25). According to the student’s second quarter report card, at the end of 2022, he was receiving mostly “3’s” (proficient) in math, science, health, music, dance, P.E., and behaviors, but mostly “2’s” (below standards) and “1’s” (well below standards) in reading, writing, social studies, and history. (Ex. G-1-2).

Service Provider reviewed the student’s evaluations and “overall profile” and recommends that the student receive 100 hours of intensive individual tutoring using research-based multisensory methods for reading, writing, and math. (Ex. F-1). The student’s psychoeducational evaluation also recommended “some academic supports.” (Ex. A-4). Moreover, the student’s 6/15/22 IEP noted that he “responds to individualized support and guidance.” (Ex. C-4). According to Parent, the student should receive as many tutoring hours as he needs in order to get caught up, academically. (Tr. 20).

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”). 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13.

The IDEA requires school districts to provide transportation “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted); accord P. v. West Hartford Bd. of Educ., 885 F.3d 735, 741 (2d Cir 2018)(related services include necessary transportation) citing 20 U.S.C. § 1401(26)(A) and Bd. of Educ. v. Rowley, 458 U.S. 176, 188 (1982); see also 34 C.F.R. 300.34. Additionally, 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." NYS Educ. Law § 4401[1](emphasis added); §4402[4][a]; 8 N.Y.C.R.R. §200.1[ww]); NYC Chancellor’s Regulation A-801(2)(I)(A) (“State Education Law mandates that the City School District provide transportation for special education children residing in New York City to and from the school they legally attend”).

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)].

Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). In J.L. v. N.Y.C. Dep’t of Educ., the Court described the DOE’s failure to provide transportation for significant periods of time as a violation which “essentially render[ed] the IEP useless.” 324 F. Supp. 3d 455, 465 (S.D.N.Y. 2018). The Court went on to say that denial of “a timely enrollment, an appropriate placement, or special education services identified in an IEP [] plainly suffers a very severe harm.” Id. at 467 citing J.G. ex rel. F.B. v. Mills, 995 F. Supp. 2d 109, 120 (E.D.N.Y 2010); see also M.B. v. City Sch. Dist. Of New Rochelle, 2018 U.S. Dist. LEXIS 53564, *44 (S.D.N.Y. 3/29/18) (indicating that there may be an equitable basis to award compensatory education for a denial of mandated transportation where the student missed instructional time or suffered injury as a result of the DOE’s failure); Wilson v. District of Columbia, 770 F. Supp. 2d 270, 276 (D.C. Dist. Ct. 2011) (holding that failure to provide transportation that resulted in student missing three weeks of his ESY program was not a mere procedural violation or a minor implementation error).

Relief

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

ANALYSIS AND CONCLUSIONS OF LAW

There is no dispute about the student’s eligibility for a special education program and services here. (Tr. 6). Nor is there any dispute that there was a significant delay in the implementation of busing. However, there is a dispute as to whether the DOE’s offer (and Parent’s declination) of an Uber rideshare while the bus scheduling was delayed absolves the DOE of responsibility for the student’s missed school days.

Since the DOE declined to put on a case, there is no evidence in the record establishing the specifics of the ride-share service offered by the district or when the offer was made. Furthermore, there is no indication from the record that the ride-share service offered by the District would have complied with the safety regulations for school bus drivers (which encompasses any vehicle contracted by a public school and operated for the transportation of students to or from school), as required by 8 N.Y.C.R.R. 156.3. Moreover, Parent testified that the judge in the emergency hearing (regarding the student’s lack of school attendance) had determined that the six-year-old student was too young to be permitted to utilize such a service by himself, and he had no one available to accompany him. Accordingly, the record does not support the conclusion that the alternate transportation offered by the DOE was appropriate or that the Parent was unreasonable in rejecting it.

This lack of appropriate transportation caused the student to miss a significant amount of school, which caused him to miss all academic instruction and related services on those missed days, essentially rendering the IEP useless. Accordingly, the failure to implement the related service of transportation amounted to a significant implementation failure and a denial of a FAPE. I find that this FAPE deprivation began on September 29, when transportation was added to the IEP, and ended on November 14, 2022, when busing was implemented. 11 The IDEA requires the district to provide transportation when, as here, it is necessary for the student to benefit from special education. State law also requires transportation for disabled students to and from their special classes and/or programs. Finally, the NYC Chancellor’s Regulations (A-801(2)(I)(A)), provide that all special education students must be transported to and from their school, and makes no distinction between students that have IEP-mandated transportation and those who do not. Accordingly, the district was obligated to transport the student to school from the start of the school year. Their failure to do so once it had been added to the IEP 12 resulted in the student missing 20 days of school (between September 29 and November 14).

The only issue remaining is the appropriate remedy for this denial. Parent has requested 100 hours of compensatory tutoring, based on the recommendation of the Service Provider. However, the Service Provider’s affidavit in evidence provides no explanation of how they arrived at the specific request of 100 hours, nor does state that this is the number of hours needed to remedy deficits caused by the missed school days. That being said, the DOE ultimately has the burden of proof on the appropriateness of a compensatory award, and they declined to put on a case. In 20 school days, during approximately six weeks of school, the student would have missed approximately 20 math ICT sessions, 60 ICT ELA sessions, 12 counseling sessions, and 12 SLT sessions (or 104 sessions total), in addition to his other academic courses. Similarly, if you estimate the average school day to contain six hours of instruction, then the student would have missed approximately 120 hours of instruction in those missed days. By either calculation, the requested bank of compensatory tutoring is roughly comparable to a quantitative assessment of the amount of instruction the student missed as a result of the denial of a FAPE. As such, I find the requested compensatory remedy to be appropriate, and the DOE has not argued to the contrary.

I do not find that Parent’s lack of appearance for the 9/29/22 CSE meeting should diminish any award, as it appears there was no substantive discussion 13 at that meeting and its sole purpose was the formality of adding transportation to the IEP. Additionally, the DOE has conceded that the equities may favor a compensatory award. Accordingly, there are no equitable considerations that weigh against the Parent here and the full compensatory relief should be granted. Although the DOE did not dispute the Service Provider’s qualifications or the reasonableness of the requested rate, there is no basis in the record to conclude that they are appropriately qualified or that the rate is reasonable. Accordingly, the bank of hours should be funded at any appropriately qualified provider of the Parent’s choosing at the market rate in New York City.

11 Although it is outside the scope of the allegations in the DPC (and thus not part of this decision), there is evidence in the record to suggest that the FAPE violation started at the beginning of the school year. The exact reasons given in the 9/29/22 IEP for requiring specialized transportation were known to the DOE at the time of the 6/15/22 IEP. Accordingly, it is likely that transportation should have been included in the earlier IEP. 12 Given that the district was obligated to provide transportation all along, I do not find that they were entitled to any grace period (between the date of the IEP and its stated implementation date) in order to allow them to arrange for transportation. 13 The 9/29/22 IEP is substantively nearly identical to the 6/15/22 IEP, with the only addition being transportation.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. The New York City Department of Education shall provide a bank of 100 hours of compensatory individual special education tutoring, to be used at an appropriately qualified provider of Parent’s choosing at the market rate in NYC. All compensatory hours must be used within two years of the date of this Order.

SO ORDERED.

DATED: June 14, 2023 Leah Martin, Esq. (Signed Electronically)_

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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

- - - -

PARENT EXHIBITS

A. Psychoeducational Evaluation Report 5/4/22 5 pages

B. Speech/Language Evaluation 5/31/22 10 pages

C. IEP 6/15/22 20 pages

D. Psychoeducational Evaluation – Addendum 6/16/22 1 page

E. IEP 9/29/22 23 pages

F. Letter from Service Provider 1/6/23 1 page

G. Report Card 3/10/23 2 pages

H. Individual Student Attendance Report 3/10/23 1 page

IHO’S EXHIBITS

i. DPC 1/31/22 7 pages

Footnotes

[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). A copy of the DPC is included in the record as IHO Exhibit i.

[3] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.

[4] His psychoeducational evaluation report indicates a history of trauma due to the father’s “tragic and violent” death and notes the student’s struggles with emotional regulation. (Ex. A-1-2). The 6/15/22 IEP notes the student’s “many major life changes” since the death of his father, including multiple foster care placements, and iterates his struggles with emotional regulation. (Ex. C-5-6).

[5] According to his speech-language evaluation, the student has a “mild language delay” and is recommended for SLT. (Ex. B- 2). He has also been diagnosed with “childhood onset fluency disorder (stuttering).” (Ex. C-2).

[6] At the hearing, the Parent indirectly raised the issue for the first time that there was a delay in the initial provision of special education services during the prior school year. (Tr. 7). As this case only concerns the current school year, and any issue regarding denials prior to that were not timely raised, I decline to consider them here.

[7] Parent’s Counsel did not explain exactly why they believe that a ride-share would not conform to the IEP’s mandate of the closest safe curb to school. (Tr. 26).

[9] He has been in foster care for more than two years. (Tr. 11).

[10] The psychoeducational evaluation notes academic challenges in oral language skills, early reading skills, and alphabet writing fluency. (Ex. A-2-4). At the time of the evaluation, the student’s reading skills were already somewhat below grade level (K.2 grade equivalent when the student was finishing kindergarten). (Ex. A-2, 4). The evaluation report noted that the student “may benefit from some academic support to enhance his achievement.” (Ex. A-4). The 6/15/22 IEP reflects his below-level reading skills. (Ex. C-1).