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Case Number: 599909 – NYC: 248444
FINDINGS OF FACT AND DECISION
Case Number: 248444
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed.,
Rep. District [REDACTED]
CSE [REDACTED]
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 5/19/2023
Hearing Requested by: Parent
Date of Hearing: 7/21/2023
Record Close Date: 7/21/2023
Date of Decision: 7/21/2023
Time Sensitive? No
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
1. [REDACTED] and [REDACTED] pro-se parents, (hereinafter referred to as “Parent” — Student or “Parents”) — Student
(“DOE”): — DOE
1. [REDACTED], Esq. appeared on behalf of the DOE, (hereinafter referred to as — DOE
“District’s Representative”) — DOE
Findings of Fact and Decision — DOE
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
[REDACTED], a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 248444
THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor
has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 5/19/2023,
Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year, beginning on January 2023 through June 30, 2023, by failing to implement the transportation services Student was entitled to under his IEP.
During the school year in which Parent filed the DPC, Student was classified with
Autism.
The Due Process Hearing (“DPH”) took place on 7/21/2023, where Parents appeared pro-se, and presented no documentary evidence. DOE presented documentary evidence, no testimony, and did not cross-examine Parents. As the issue in the case revolved around a limited matter, and Parents appearing pro-se, no opening or closing statements took place, or were necessary
III. Findings of Fact and Decision
A. Sufficiency
Initially, DOE objected to the sufficiency of the DPC. As indicated on the record, 8 NYCRR
200.5(i)(3) reads that “[t]he due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the impartial hearing officer, appointed in accordance with the rotational selection process in section 200.2(e)(1) of this Part and the requirements in subparagraphs (3)(i) and (ii) of subdivision (j) of this Part, and the other party in writing, within 15 days of the receipt of the due process complaint notice, that the receiving party believes the notice has not met the requirements of paragraph (1) of this subdivision.” (Emphasis added). Although IHO was administratively reassigned to this case for reasons unrelated to the merits of the case on 7/10/2023, there was no prior invocation of insufficiency to the previously appointed IHO, and the issue was waived and not addressed further.
In addition, as articulated in Erickson v. Pardus, 551 U.S. 89, 94, a document filed pro se is “to be liberally construed”, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” A Pro Se litigant is a Parent who is not an attorney or Special Education advocate who represents him or herself in a Due Process Hearing.
B. FAPE
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (1)
to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare
them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[1] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.[2] Here, the Parents are not seeking the remedy of tuition reimbursement.[3] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [4]
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,[5] and provides for the use of appropriate special education services. 6A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[7] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[8] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make
6 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [9]
Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[10] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[11] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a)
impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [12]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[18] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[19]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[20] and designed to be provided in the least restrictive environment (“LRE”).[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[22] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum 23 through the use of appropriate special education services.[24]
Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[25]
23 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
C. Transportation
Under the IDEA, transportation and any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services.[26] New York State Education Law 27 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." 28.
Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.[29] If the provision of FAPE is dependent on the transportation as a related service, then the CSE must ensure that the student receives the necessary transportation at public expense.[30] An IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate." 31 “Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” 32
There is no dispute that the DOE failed to implement the IEP vis-à-vis the limited time transportation as required in Student’s IEP. DOE presented no evidence to rebut Parent’s allegations in the DPC or during the DPH, and those allegations will be deemed true. In
27 Educ. Law §§ 4401[1]; 4402[4][a].
28 State Appeal No. 21-057; Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
addition, there appear to be discrepancies in DOE’s exhibits and internal documentation as the implementation of Student’s IEP is documented as 2/9/2023, 33 yet the date of the IEP meeting is documented as 2/14/2023. 34 Parent represented that there was another IEP meeting on or about 1/26/2023, and DOE’s own records indicated that the 2/14/2023 IEP meeting was a ‘reconvene.’ It is troubling that the DOE is unaware of precisely what took place, and there appear to be multiple procedural violations that are not relevant to the claim in the DPC or the relief. Therefore, based on the inconsistencies, and Parent’s testimony, the implementation date of the IEP shall be deemed to be in January 2023.
One of the claims in the DPC was that the non-implementation of Student’s mandated transportation resulted in Student soiling himself because of the extended time he spent on the bus to and from school. This allegation was unrebutted and deemed true, and DOE did not object to the statement that this scenario cannot merely be a procedural violation and was, in fact, a substantive denial of FAPE.
Therefore, the DOE denied Student with a FAPE for the 2022-2023, 10-month, school year beginning on January 2023 through June 30, 2023, as a result of not implementing the mandated transportation indicated on Student’s IEP.
D. Remedy
Parents testified that they did not incur any financial loss as a result of DOE’s failure to implement the IEP and the attendant substantive denial of FAPE. Student did not require
33 Ex. DOE-2-1. 34 Ex. DOE-2-26.
tutoring, or missed other related services, or any other compensable loss that IHO can redress in this forum. Parent also did no incur any unilaterally obtained transportation costs.
The DPH took place after the 2022-2023 school year has ended, and an order directing the DOE to implement the IEP or grant private transportation direct funding and/or reimbursement will be to no avail and moot. This is one of those cases where the DOE’s inexcusable failure leaves Parents and Student without a remedy, which is unfortunate, and IHO can only issue an order that is declaratory in nature.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that, as a declaratory finding, the DOE substantively denied Student with a FAPE for the 2022-2023, 10-month, school year from January 2023 through June 30, 2023, by failing to implement Student’s transportation.
DATED: SO ORDERED
7/21/2023
Dr. Oren Varnai, Esq., IHO
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 proceedings 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
7/21/2023
Dr. Oren Varnai, Esq., IHO
EXHIBITS
PARENT EXHIBITS
Exhibit Document Date Pages
A. None None None
DOE’S EXHIBITS
Exhibit Document Date Pages
1. IEP 3/10/2021 30
2. IEP 2/14/2023 27
3. [REDACTED] Physician Review Form 2/13/2023
IHO’S EXHIBITS
Exhibit Document Date Pages
I. None None None
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Ex. P-A.
[4] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[5] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[7] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
[8] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[10] R.E., 694 F.3d at 190-91.
[11] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[12] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[13] 20 U.S.C. § 1415[f][3][E][i].
[14] Rowley, 458 U.S. at 203.
[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[16] Endrew F., 137 S. Ct. at 1001.
[17] 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.
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[19] 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].
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[21] 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.
[22] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[24] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[25] Endrew F., 137 S. Ct. at 1000.
[26] 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16].
[30] Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]. 31 ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf). 32 State Appeal No. 21-057 citing Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997].