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Case Number: 597049 – NYC: 246433
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (the Student)
Date of Birth: [REDACTED]
School District: New York City Department of Education (DOE)
Hearing Requested by: [REDACTED] (the Parent)
Date Complaint Filed: March 6, 2023
Date of Hearing: May 12, 2023
Record Closed Date: June 21, 2023
Date of Decision: June 21, 2023
Impartial Hearing Officer: Amy Randhawa
INTRODUCTION
This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parent, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years. D Ex. 1 4.1 Specifically, the DPC alleges that the Parent provided medical recommendations confirming that the Student requires a maximum of 40 minutes on the school bus, but the Committee on Special Education (CSE) failed mandate the appropriate Special Transportation accommodation on the Student’s February 2021, June 2021, February 2022, and December 2022 Individual Education Programs (IEPs).
By way of relief, the Parent requests that the DOE: (1) fund an independent neuropsychological evaluation of the Student to be conducted by a New York State licensed clinical psychologist (the Psychologist), or another duly credentialed psychologist, at a rate of $6,500; (2) fund an independent speech and language evaluation of the Student to be conducted by a New York State licensed speech and language pathologist (the Speech Pathologist), or another duly credentialed speech pathologist at a rate of $2,500; (3) reconvene the CSE to consider the results of the evaluations identified in (1) and (2) and modify the Student’s IEP, as appropriate, within 14 school days of receiving both evaluations; (4) amend the Student’s current IEP to include the following special transportation accommodation: from closest safe curb location to school; 1-1 para-professional; air conditioner; limited travel time no more than 45 minutes door to door oneway; and, (5) reimburse the Parent costs for transporting the Student to and from school because the DOE failed to implement the requested Special Transportation accommodation of a maximum of 40 minutes on the school bus each way. 2 D Ex. 1 5; Tr. 20 ¶19-22 ¶3.
I find that: (1) the DOE denied the Student a FAPE for the 2021-2022 and 2022-2023 school years; (2) the DOE did not carry its burden with respect to the relief; and, (3) the Parent’s requested relief, in general, is appropriate.
JURISDICTION
1 Exhibits are referred to as follows: “D” for DOE exhibits, “P” for Parent exhibits, and “IHO” for Impartial Hearing Officer exhibits, followed by the exhibit number, and if applicable, page number(s) and paragraph(s). 2 In an email on May 10, 2023 (IHO Ex. I 1) and again at the due process hearing on May 12, 2023, the Parent Attorney confirmed that the Parent is withdrawing the request for compensatory education without prejudice. D Ex. 1 5 ¶3; Tr.
6 ¶¶12-17. Further, at the hearing, the Parent Attorney confirmed that the Parent’s request for educational records is resolved. D Ex. 1 5 ¶7; Tr. 6 ¶¶4-12. Last, although the DPC requests that the CSE modify the Student’s transportation accommodation to a limit of 40 minutes one-way, at the hearing the Parent Attorney requested a limit of 45 minutes one-way and submitted an affidavit from the Student’s Nurse requesting a 45-minute one-way limit. Tr. 18 ¶22-19 ¶4; Tr. 21¶¶9-14; P Ex. L 2 ¶9.
This due process hearing (DPH) 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 federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.
PROCEDURAL HISTORY
The DPC was filed on March 6, 2023, and I was appointed to hear this case on March 7, 2023. D Ex. 1 1. The parties appeared for a pre-hearing conference on April 6, 2023, and a DPH on May 12, 2023. Tr. 1-4. At all appearances, the Parent was represented by Parent Attorney, and the DOE was represented by DOE Attorney. Tr. 4 ¶¶6-13.
At the DPH, without objection from the Parent, the DOE entered exhibits 1 through 17 into the record (Tr. 7 ¶7-9 ¶18), and gave an opening (Tr. 11 ¶12-14 ¶1) and closing (Tr. 22 ¶6-24 ¶8) statement. The DOE did not offer any testimony. Tr. 4 ¶18-5 ¶2.
Without objection from the DOE, the Parent entered exhibits B-F, H, J-N into the record, including testimony by affidavit from the Psychologist (P Ex. J), the Speech Pathologist (P Ex. K), the Student’s Nurse (P Ex. L), and the Parent (Ex. N). The Parent withdrew exhibits A, G, and I because they are duplicative of DOE exhibits 1, 8, and 13, respectively, which were entered into the record. Tr. 9 ¶24-11 ¶9. The DOE did not request to cross-examine any of the Parent’s affiant witnesses and the Parent did not present any live testimony at the hearing. IHO Ex. 1 2; Tr. 4 ¶¶18-
23. The Parent waived an opening statement (Tr. 14 ¶¶4-6), and issued a closing statement (Tr. 18 ¶2-22 ¶6).
FINDINGS OF FACT
I make the following findings of fact.
The Student is a [REDACTED]-year old currently in fourth grade at a DOE public school and is classified by the DOE’s CSE as a student with Autism. D Ex. 1 2; D Ex. 6 1; Tr. 11 ¶¶21-
25. In addition, the Student has a kidney impairment called [REDACTED] which presents as a safety risk if not monitored closely on the commute to and from school. D Ex. 3 25; D Ex. 4 25; D Ex. 5 20; D Ex. 6 22; D Ex. 7 1; D Ex. 11 1.
The Parent provided the DOE a March 23, 2021 letter from a New York State Licensed Nurse Practitioner who specializes in pediatric urology and has known the Student since December 2019 (the Student’s Nurse). P Ex. B 1; P Ex. L ¶1-2, 7. The letter recommends that the Student “should be limited to bus transit time of 30 minutes max” given his kidney condition which limits his ability to stay dry during long bus rides, and can result in skin breakdown and an increased risk for social distress. P Ex. B 1. In response, on May 10, 2021, the CSE revised the special transportation accommodations on the Student’s February 25, 2021 IEP to provide the following:
• Transportation from the closest safe curb location to school. Adult Supervision – 1:1 Paraprofessional Vehicle and/or Equipment Needs – Air Conditioning Other Accommodations – Limited Travel Time Other Accommodations: Limited travel time no more than 30 minutes/door to door Reason(s) why the student needs special transportation service and/or accommodations: Student has kidney condition called [REDACTED]. Student's condition presents as a safety risk if not monitored more closely by a paraprofessional on the commute to and from school. Condition also requires the travel time to be 30 minutes. D Ex. 3 1, 25.
Since May 10, 2021, the parties agree that the Student requires special transportation from the closest safe curb location to school, a 1:1 paraprofessional on the bus, and limited travel time on the bus. Id. The parties, however, disagree regarding the amount of limited travel time. Tr. 23 ¶¶1-6.
On June 1, 2021, the DOE requested to amend the Student’s special transportation accommodation from “Limited Travel time no more than 30 minutes” to “Limited Travel Time.” P Ex. E 1. The DOE reconvened the CSE on June 11, 2021 and revised the special transportation accommodations on the Student’s February 25, 2021 IEP accordingly, removing “no more than 30 minutes” from the limited travel time accommodation.[3] D Ex. 4 25. During the 2021-2022 school year, the DOE updated the Student’s IEP on February 10, 2022, and continued to provide a special transportation accommodation of limited travel time, without specifying the amount of time. D Ex. 5 19-20.
During the 2022-2023 school year, the Parent submitted a September 15, 2022 letter to the DOE from the Student’s Nurse stating that he must use the bathroom every 2 hours due to his kidney condition and should be allowed to wear a watch and leave class every 2 hours. D Ex. 10
1. The Parent also submitted a Medical Accommodations Request Form dated October 28, 2022 from a different medical provider at the same hospital as the Student’s Nurse (the Medical Provider), noting that the Student must timely void every 2-3 hours, and requesting that the Student be allowed a “short bus ride to avoid stress and being seated for too long (no more than 40 min)” and to “allow/accommodate for a short bus ride (<40 min) to avoid discomfort.” D Ex. 8 1.
On November 16 and 28, 2022, the DOE issued Office of Student Health (OSH) Physician Review forms for Transportation Requests from different doctors, assessing the Student’s medical request for a bus ride less than 40 minutes. D Ex. 7; D Ex. 11. The forms note that both doctors discussed the Student’s transportation request with the Student’s Medical Provider; the Medical Provider explained that long bus rides cause anxiety for the Student over having to use the bathroom and can result in him acting up (D Ex. 7 2); and, that after one doctor explained that the limited travel time (LTT) requested by the Medical Provider is reserved for students who are medically or behaviorally unstable, the Medical Provider agreed with the doctor’s recommendation that the Student be recommended for “standard LTT.” Id. Of note, the November 16, 2022 form states that during the conversation, the Medical Provider could not speak to the Student’s need for a 1:1 transportation para. D Ex. 7 2.
The special transportation accommodation in the Student’s most recent IEP, dated December 1, 2022, continues to provide for limited travel time without specifying the amount of time. D Ex. 5 19-20.
With respect to the DOE’s history of evaluating the Student, by letter dated February 7, 2022, the DOE declined to conduct any new assessments as a part of the Student’s mandated three-year reevaluation, finding that the Student’s existing information, including progress reports and report cards, were sufficient. P Ex. F 1. Although the DOE reviewed timely reports (counseling, OT, speech and language, teacher, and/or medical reports), the only evaluations/assessments relied upon by the DOE to develop the Student’s 2021 and 2022 IEPs were three or four years old; specifically, a January 11, 2018 social history update; February 12, 2018 classroom observations; and, a February 17, 2018 Psychoeducational Assessment. D Ex. 14 2; D Ex. 15 2; D Ex. 16 2; D Ex. 17 2.
The DOE did not conduct any up-to-date assessments even though a November 2022 speech and language report found that the Student “presents with a mild pragmatic language impairment” and that “more progress can be made to improve all of his communication skills.” D Ex. 6 4.
On February 24, 2023, the Parent issued a letter to the CSE stating, among other things, that she disagrees with the findings of the DOE’s evaluations cited in the Student’s February 25, 2021 IEP because “they failed to comprehensively evaluate” the Student. D Ex. 13 1. The Parent did not clarify which evaluation(s) she disagrees with or further explain her concerns with respect to any specific evaluation.[4] The Parent also asserted that she disagrees with the DOE’s February 7, 2022 notice, which found that no new evaluations were required for the Student’s mandated three-year reevaluation. Id. The Parent requested an independent neuropsychological evaluation of the Student to be conducted by the Psychologist at a rate not to exceed $6,500, and an independent speech and language evaluation of the Student by the Speech Pathologist at a rate not to exceed $2,500. Id.
As of June 20, 2023, the DOE confirms that it has not provided the Parent with the requested independent educational evaluations (IEEs). IHO Ex. II.
CONCLUSIONS OF LAW AND ANALYSIS
Burden
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.
Provision of FAPE
The IDEA provides that children with disabilities are entitled to a 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 IEP. 34 C.F.R. § 300.13. 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 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).
The IDEA specifically includes transportation, as well as any modifications or accommodations needed to assist a student to benefit from his or her special education, in its definition of related services. 20 U.S.C. § 1401(26); 34 CFR 300.34(a), (c)(16). Under New York law and regulations, special education is defined 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); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww). The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the DOE’s obligation to provide a student with a FAPE. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992).
The DOE denies failing to provide the Student with FAPE during the 2021-2022 and 2022-2023 school years, and asserts that the DOE provided the Student with a special transportation accommodation of limited travel time which abides by the Student’s medical orders. Tr. 13 ¶ 18-14 ¶1. Specifically, the DOE asserts that the Parent’s documentary evidence does not demonstrate that the Student requires a bus ride limited to 40 minutes because the Student’s medical professionals state that he needs to use the bathroom every two to three hours. Tr. 13 ¶¶18-22; D. Ex. 8. The DOE asserts that the Parent’s request for a 40-minute limited travel time on the bus is a preference based on the Student’s comfort, not medical necessity. Tr. 15 ¶19-16 ¶10; Tr. 23 ¶¶1-6.
I do not give any weight to the DOE’s arguments. The DOE appears to be conflating the Student’s medical professionals’ recommendation that the DOE accommodate the Student to allow him to leave the classroom for “timed voiding” every two hours (D Ex. 7 1; P Ex. L 2 ¶8), with the additional recommendation that his travel time on the bus be limited because his inability to stay dry during long bus rides can cause wet clothes and skin breakdown. P Ex. B 1. The DOE’s own documents, the IEPs created for the Student from May 2021 through December 2022 as well as the DOE’s November 16 and 28, 2022 OHS Physician Review forms, note that the Student’s kidney condition “presents as a safety risk if not monitored more closely by a paraprofessional on the commute to and from school.” D Ex. 3 25; D Ex. 4 25; D Ex. 5 20; D Ex. 6 22; D Ex. 7 1; D Ex. 11 1. Further, the DOE adopted the March 23, 2021 accommodation request from the Student’s Nurse requesting a limited transit time of 30 minutes in the Student’s revised May 10, 2021 IEP. P Ex. B 1; D Ex. 3 25. Then, without any explanation provided at hearing or in its documentary evidence, one month later, the DOE amended the 30 minutes limited travel time to limited travel time in a revised June [11], 2021 IEP. P Ex. E; D Ex. 4 25.
Although the DOE’s November 16 and 28, 2022 OSH Physician Review forms assert that during discussions with the doctors, the Student’s Medical Provider agreed with the DOE doctors’ recommendation that the Student be provided standard limited travel time rather than the Medical Provider’s October 28, 2022 recommendation of a bus ride less than 40 minutes (D Ex. 7 2; D Ex.
Further, I find that the DOE failed to conduct sufficient comprehensive evaluations of the Student. The only evaluation/assessment noted in the record is a Psychoeducational Assessment from February 17, 2018, which is currently over five years old. Also, the Student’s current December 2022 IEP notes that he receives speech and language therapy but is making minimalmoderate progress and based on informal assessments, presents with a mild pragmatic language impairment. D Ex. 6 4. A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
I find that the DOE failed to establish by a preponderance of the evidence that it offered the Student a FAPE for the 2021-2022 and 2022-2023 school years.
Relief
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021]. The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017].
I find that the DOE did not carry its burden to establish the appropriate amount of relief needed to remediate the DOE’s failure to provide FAPE. The DOE did not call any of its own witnesses or otherwise establish that the Parent’s requests are inappropriate.
In contrast, the Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE for the 2021-2022 and 2022-2023 school years. I find that the relief requested by the Parent is appropriate to remedy the DOE’s failure to conduct sufficient and upto-date comprehensive evaluations of the Student, and provide the Student with a special transportation accommodation of limited travel time which abides by the Student’s medical orders and unique needs.
With respect to the request for IEEs, although the DOE generally argued that the Parent’s request for IEEs should be denied, the DOE did not raise any specific concerns with respect to the providers or the rates charged for the IEEs. Tr. 24 ¶¶5-8. Further, the Parent submitted credible affidavit testimony from the Psychologist (P Ex. J 1 ¶4-5) and the Speech Pathologist (P Ex. K 2 ¶7-3 ¶12) that the DOE has paid both providers the requested rate for the same evaluations. Therefore, I am granting the Parent’s request for IEEs in full.
In regard to the Parent’s request to amend the Student’s IEP, in order to avoid the DOE from, again, revising the Student’s IEP to remove the specific amount of limited travel time requested by his medical professionals, I am ordering the Student’s IEP to be amended through the 2023-2024 school year, based on the credible and consistent request from the Student’s Nurse that his travel time on the bus be limited in duration. I acknowledge that the Student’s Nurse has both requested a 30-minute and 45-minute travel limit and am issuing an order reflecting the most recent, May 2023, recommendation of a 45-minute one-way limit.
In addition, I find that the Parent submitted credible testimony by affidavit, which the DOE did not refute, that because the Student’s bus ride to school has taken up to 90 minutes each way and the Student’s kidney condition requires a shorter commute to school, the Student’s parents have spent their own money to transport the Student to school. P Ex. N. The Parent also submitted completed DOE Travel Reimbursement Forms. P Ex. M. It is appropriate for the DOE to reimburse the Parent for any costs incurred transporting the Student to or from the DOE School because the DOE failed to provide the Student with the appropriate transportation accommodation, limiting his bus ride as requested by supporting medical documentation.
However, I am not granting the Parent’s request that the CSE amend the Student’s IEP to include the special transportation accommodation of air conditioning. This request was raised for the first time in the Parent Attorney’s closing statement. Tr. 21 ¶¶9-14. This issue was not identified in the DPC. D Ex. 1. Further, there is insufficient evidence in the record to support this request. Although the record reflects that air-conditioning was included in the Student’s IEP revised on May 10, 2021, and subsequently removed in the IEP revised on June 11, 2021, there is no information in the record with respect to whether the Student needs air-conditioning. D Ex. 3 25; D Ex. 4 25. As such, this request is denied.
For the reasons above, I find that the record supports the Parent’s request, in general, and I order the services as outlined below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall fund an independent neuropsychological evaluation of the Student to be conducted by the Psychologist, or another duly credentialed psychologist, at a rate not to exceed $6,500. Within 10 business days upon receipt of invoice(s) for such services, the DOE shall pay the provider(s).
(2) The DOE shall fund an independent speech and language evaluation of the Student to be conducted by the Speech Pathologist, or another duly credentialed speech pathologist at a rate not to exceed $2,500. Within 10 business days upon receipt of invoice(s) for such services, the DOE shall pay the provider(s).
(3) The DOE shall reconvene the CSE to consider the results of the evaluations identified in (1) and
(2) and modify the Student’s IEP, as appropriate, within 14 school days of receiving both completed evaluations.
(4) The DOE’s CSE shall amend the Student’s IEP, through the 2023-2024 school year unless no longer requested by the Parent in writing, to include the following special transportation accommodations for the Student:
a. from closest safe curb location to school b. 1-1 para-professional c. limited travel time no more than 45 minutes one-way (5) The DOE shall reimburse the Parent costs for transporting the Student to and from school during the 2022-2023 school year at the customary reimbursement rate of the DOE. Within 10 business days upon receipt of the standard DOE documentation for such reimbursement requests, the DOE shall pay the Parent.
SO ORDERED.
DATED: June 21, 2023
s/ Amy Randhawa
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 – REDACTION IDENTIFICATION PAGE
Term Used In FOFD [REDACTED] Information
Student [REDACTED]
Parent [REDACTED]
Parent Attorney [REDACTED]
DOE Attorney [REDACTED]
DOE School [REDACTED]
Psychologist [REDACTED]
Speech Pathologist [REDACTED]
Student’s Nurse [REDACTED]
Medical Provider [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DOE EXHIBITS:
EXHIBIT DATE NAME PAGES
1. Due Process Complaint 3/6/2023 8 pages DOE
2. Individualized Education Program 2/25/2021 27 pages DOE
3. Individualized Education Program (Revision: Transportation Accommodation) 5/10/2021 28 pages DOE
4. Individualized Education Program (Revision: Revision: Transportation Accommodation) 6/11/2021 28 pages DOE
5. Individualized Education Program 2/10/2022 22 pages DOE
6. Individualized Education Program 12/1/2022 25 pages DOE
7. OSH Physician Review for Transportation Requests 11/16/2022 2 pages DOE
8. Medical Accommodations Request Form 10/28/2022 3 pages DOE
9. School Bus Student Incident Report 10/12/2022 1 page DOE
10. Letter from Student’s Nurse 9/15/2022 1 page DOE
11. OSH Physician Review Form for Transportation Requests 11/28/2022 2 pages DOE
12. DOE School IEP Teacher Report 11/11/2022 5 pages DOE
13. Letter from Parent to Committee on Special Education #10 2/24/2023 3 pages DOE
14. Prior Written Notice (Notice of Recommendation) 2/26/2021 9 pages DOE
15. Prior Written Notice (Notice of Recommendation) 5/10/2021 9 pages DOE
16. Prior Written Notice (Notice of Recommendation) 2/14/2022 9 pages DOE
17. Prior Written Notice (Notice of Recommendation) 12/5/2022 9 pages DOE
PARENT EXHIBITS
EXHIBIT DATE NAME PAGES
A. WITHDRAWN
B. Physician Request Form 3/23/21 1 page
C. IEP 5/10/21 24 pages
D. CSE Email [3] Waiver for IEP Meeting to Amend IEP 5/10/21 2 pages
E. 6/1/21
Footnotes
[3] The DOE also removed “Vehicle and/or Equipment Needs – Air Conditioning” from the Student’s IEP.
[4] A Prior Written Notice dated February 26, 2021 identifies the following evaluation procedure/assessment/record/report as being relied upon in creating the Student’s February 25, 2021 IEP (D Ex. 2): January 11, 2018 Social History Update; February 12, 2018 Classroom Observations; February 17, 2018 Psychoeducational Assessment; February 25, 2021 Counseling Progress Report; February 25, 2021 Occupational Therapy Progress Report; February 25, 2021 Speech and Language Progress Report; and, February 25, 2021 Teacher Report. D Ex. 14 2.
[11] 2), I do not give this evidence any weight. The DOE did not provide any testimony from either doctor who completed the forms or the Medical Provider identified in the forms to explain the basis for the doctors’ recommendations or why the Medical Provider agreed with the doctors’ recommendations, contrary to the Medical Provider’s accommodation request submitted only a few weeks prior. Also, the November 16, 2022 Review Form evidences that the Medical Provider did not have sufficient knowledge of the Student’s needs; the form notes that during the discussion with the DOE doctor, the Medical Provider could not “speak to the [Student’s] need for a 1:1 transportation para.” D Ex. 7 2. In contrast, the Parent submitted credible affidavit testimony from the Student’s Nurse, who works in the same hospital as the Medical Provider, asserting that she has known the Student for over three and a half years, most recently evaluated the Student’s imaging results in April 2023, and that in her opinion, a 45-minute bus ride is a “reasonable accommodation given [the Student’s] urologic condition and neurologic developmental disability,” and that a lengthy bus ride will lead to the Student “sitting in wet underwear which is a risk for skin breakdown and irritation, and social stress and potential anxiety from his peers observing his clothing being soiled.” P Ex. L. I find that the DOE failed to meet its burden at hearing. The DOE should be “able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 580 U.S. at 404. Here, the DOE relied on the documents entered into the record to defend FAPE but provided no convincing explanation regarding why it failed to abide by the Student’s medical providers’ March 2021 recommendation for limited travel time on the bus of 30 minutes and subsequent October 2022 recommendation for limited travel time of less than 40 minutes. P Ex. B 1; D Ex. 8. Instead, since June 11, 2021 the DOE has only provided the Student with an accommodation of “limited travel time” on the bus. I find that this accommodation is vague and unenforceable; as such it is in and of itself a FAPE violation as it is not a related service designed to meet the Student’s unique transportation needs due to his kidney condition. 34 C.F.R. § 300.13.
[3] F 2/7/22 Mandated Three Year Reevaluation Letter G WITHDRAWN H 12/1/22 IEP 24 I WITHDRAWN J 4/13/23 Psychologist Affidavit 2 K 4/17/23 Speech Pathologist Affidavit 3 L 5/5/23 Student’s Nurse Affidavit 3 M 5/5/23 Travel Reimbursement Forms 12 N 5/6/23 Parent Affidavit 1 IHO EXHIBITS EXHIBIT DATE NAME PAGES I May 10, 2023 Emails between IHO and Parties 5 II June 16-20, 2023 Emails between IHO and Parties 3