New York City Department of Education, Impartial Hearing Decision

Findings of Fact and Decision Case No. 248260

FINDINGS OF FACT AND DECISION

Case Number: 248260

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: N.Y.C. Dept. of Education

Home District: REDACTED

Service District: REDACTED

Date of Filing: 05/15/2023

Hearing Requested by: Parent

Hearing Date: 07/19/2023

Actual Record Closed Date: 07/26/2023

Date of Decision: 07/27/2023

Date of Distribution: 07/27/2023

Impartial Hearing Officer: Patricia Peña, Esq.

Findings of Fact and Decision

NAMES OF PERSONS WHO APPEARED ON 07/19/2023

For Student and Parent:

REDACTED

Appearing Pro Se

For the Department of Education:

REDACTED

Findings of Fact and Decision

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on 05/15/2023 by Parent on behalf of his son, Student, against the New York City Department of Education (“DOE” or “District”) alleging that DOE was not in compliance with Student’s 06/23/2022 IEP special transportation accommodation.

I was appointed as the Impartial Hearing Officer on 05/16/2023. On 06/13/2023, a Pre- Hearing conference was held wherein parties indicated that a resolution meeting was not held and that DOE had not filed a response to the DPC. Parent stated that the case concerned DOE’s Office of Pupil

Transportation’s (“OPT”) noncompliance with the Student’s IEP limited travel time mandate due to a change in Student’s bus route. The Representative for DOE stated that she believed the matter could be resolved without the need for a hearing and would reach out to OPT regarding the matter.1 A status conference was scheduled for 07/06/2023 and a due process hearing was scheduled for 07/19/2023.2 At the status conference, parties indicated that the matter had not been resolved.

A virtual due process hearing was held on 07/19/2023. The District was represented by counsel and Parent appeared pro se. Parent submitted exhibits A through T into evidence and testified on his own behalf. DOE objected to exhibits R, S, and T as they pertain to the 2023-2024 school year and objected to exhibit P on the basis that it is a printout from DOE’s website and not a remedy available to Parent. The exhibits were admitted into evidence over DOE’s objection.3

In its opening statement DOE argued that Parent is not entitled to reimbursement as he has not incurred any expenses and therefore his claims are not ripe.^[4] Parent on the other hand argued that the

1

IHO 1

2 Id. 3 Tr. 25 Findings of Fact and Decision

violations in this case are continuing; they started on April 27th and have continued through July 14th and are therefore ripe.5

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“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, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

Student is a REDACTED-year-old child classified by DOE as a Student with autism spectrum disorder. In its DPC, Parent asserts that Student’s IEP has a travel accommodation of limited travel time of no more than 60 minutes.^[6] On or about 04/27/2023, OPT altered Student’s bus route and as result, there have been several instances of noncompliance with Student’s limited travel time mandate.

ISSUE

The issue for determination is whether DOE denied Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year by failing to adhere to the limited travel time mandate on Student’s IEP. Further, if there is a deprivation of FAPE, what relief, if any, is Parent entitled to.

In light of the foregoing and as more fully discussed below, I find that DOE’s failure to adhere to Student’s limited travel time mandate constitutes a deprivation of FAPE. However, for the reasons outlined below, Parent is not entitled all of the relief requested.

Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.

5

Tr. 7 Findings of Fact and Decision

FINDINGS OF FACT AND DECISION

After a full review of the record generated at the hearing, I make the following findings of fact and determinations.

Parent testified that Student has had a limited travel time restriction on his IEP since 2017.7 On April 27th, Student’s bus route changed and since then, there have been several instances of noncompliance with the limited travel time restriction.8 Parent made several requests asking OPT to fix the issue as evidenced by the emails in evidence but the issue has not been fixed and there has been intermittent noncompliance with the travel mandate. Student’s mom (non-appearing Parent), testified that between May 3rd and June 16th, 2023, Student has been repeatedly dropped off beyond the 60- minute limited travel time with the delays ranging from 20 minutes to 2 hours.^[9]

Legal Framework

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.^[10]

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE.^[11] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in

7 Tr. 28 8 Tr. 30Findings of Fact and Decision conformity with a comprehensive written IEP.^[12] 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 Student to receive educational benefits.^[13] 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.”^[14] School districts are not required to "maximize" the potential of students with disabilities15 but are required to provide "an IEP that is 'likely to produce progress, not regression,' and .

. . affords Student with an opportunity greater than mere 'trivial advancement'."^[16]

Here, there is no question that Student has a limited travel accommodation in his IEP, and that DOE is required to comply with this accommodation. I find that DOE’s periodic noncompliance with this mandate resulting in delays of up to 2 hours is in contravention to Student’s IEP and constitutes a denial of FAPE.

RELIEF

An appropriate remedy for a denial of FAPE can include an award of compensatory education.^[17]

The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the IDEA.^[18] A court may, therefore “award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”^[19] Further, “whereas ordinary

15 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132.

Findings of Fact and Decision

IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.”^[20]

A request for compensatory relief may be denied if there is not a sufficient a causal link in the record between any deprivation and Student’s current deficits.^[21]

Here, Parent seeks an order directing DOE to comply with Student’s IEP mandate and a mechanism to receive reimbursement for out-of-pocket expenses in the event that DOE continue to violate

Student’s limited travel accommodation.22

It is undisputed that Student has an IEP accommodation of limited travel time of no more than 60 minutes, and that DOE is required to comply with this mandate. There is also no dispute that since April 2023, DOE has on occasion, failed to comply with this mandate. Parent has acknowledged that he has not incurred any out-of-pocket expenses related to this matter yet. As such, I cannot issue an order directing the District to do something based on the possibility of future noncompliance with Student’s IEP. Should

Parent incur out of pocket expenses related to this issue, Parent has the option of filing a DPC to recoup any out-of-pocket expenses.

Attorneys’ Fees

Parent also requests attorneys’ fees or in the alternative compensation for taking time off to testify.23 The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent

Findings of Fact and Decision

jurisdiction.24 Only a court can determine if a party is entitled to attorneys’ fees, and I would be exceeding the scope of my authority by determining that Parent is entitled to costs. Therefore, Parent’s request for attorneys’ fees or alternative compensation for his testimony is denied.

ORDER

NOW, in light of the foregoing, I HEREBY FIND:

(1) DOE failed to provide Student with a FAPE for the 2022-2023 school year.

(2) Parent’s request for legal fees or in the alternative, compensation for taking a day off work is denied.

IT IS THEREFORE ORDERED,

(3) DOE Office of Pupil Transportation is hereby directed to comply with Student’s 06/23/2022 IEP limited travel time restriction of 60 minutes immediately.

SO ORDERED.

Dated: 07/27/2023

Patricia Peña, Esq. (signed electronically)

Impartial Hearing Officer 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, 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. Findings of Fact and Decision Case No. 246862

DISTRICT EVIDENCE

PAGES TITLE DATE PAGE

COUNT

None

PARENT EVIDENCE

Exhibit Title Date Pages A IHO Decision – Case No. December 15, 10

238130 2022 B Amended IEP - 2022-23 school January 27, 2023 40

year

C Emails April 28, 2023 1 D Emails May 2, 2023 1 E Emails May 3, 2023 4 F Email May 4, 2023 1 G Affidavit of student’s mother July 10, 2023 1

H Photograph May 15, 2023 1 I Email May 16, 2023 1 J Email May 16, 2023 1 K Photograph May 17, 2023 1 L Email May 17, 2023 1 M Photograph May 18, 2023 1 N Emails May 18 and 19, 1

2023 O Photograph May 19, 2023 1 P Website pages July 6, 2023 4 Q Redacted Medicaid benefits card April 28, 2017 1 R GPS report July 10, 2023 1 S GPS report July 11, 2023 1 T GPS report July 12, 2023 1 Findings of Fact and Decision Case No. 246862

IHO EXHIBITS

Exhibit Title Date Pages

1 Pre-Hearing Summary Conference and Order 06/14/2023 9

2 Due Process complaint 05/15/2023 3

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Footnotes

[4] Tr. 7, 26

[6] IHO 2, Parent’s B

[9] Parent’s G

[10] NYS Educ. Law § 4404[1][c]

[11] 20 U.S.C. § 1400 [d] [1] [A]

[12] 34 C.F.R. § 300.13

[13] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].

[14] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017].

[16] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].

[17] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) citing Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 (2d Cir. 2008). See also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (finding that the “IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education”).

[18] See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]

[19] Doe v. East Lyme, 790 F.3d at 454 [2nd Cir. 2015]

[20] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005)

[21] See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C.Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that Student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (Parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by Student in crafting an award, regardless of the substantive appropriateness of the IEP). 22 Tr. 42 23 Tr. 41