NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
New York State Education Department
Office of Special Education
FINDINGS OF FACT AND DECISON
IHRS or NYC Case Number: 249316
School District: NYC School District
Impartial Hearing Officer: Philip P. Sturges
Request Date/Date Complaint: June 27, 2023
Filed/Date of Decision: August 28, 2023
Date of Distribution, if Different than Decision Date: n/a
BACKGROUND
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about June 27, 2023. In the DPC, the Parent alleges that the New York City Department of Education (DOE) failed to provide the Student with a free appropriate public education (FAPE) for the 2021-2022 school year.
The Parent alleges as follows. The last agreed upon special education program for the Student was an individualized education services program (IESP) dated May 30, 2019, in which the Student was recommended to receive five sessions per week of special education teacher support services (SETSS), as well as certain related services. For the 2021-2022 school year the Student required these services, but the DOE did provide a SETSS provider to work with the Student. The Parent found providers for the SETSS for the 2021-2022 school year who were only available at a designated location outside of the Student’s home and school, and the only way for the Student to receive the SETSS was to travel from home or school to the designated location were the services were delivered and back to school or home. The Student’s parents paid out of pocket for this transportation in order for the Student to receive the mandated SETSS. If the parents had not paid for the transportation, the Student would not have received SETSS during the 2021-2022 school year. By way of relief, the Parent seeks an order directing the DOE to reimburse her for payments made for transporting the Student to receive his SETSS and then back home or to school during the 2021-2022 school year.
PROCEDURAL HISTORY
I was appointed on June 28, 2023. A prehearing conference was held on August 1, 2023. On August 23, 2023, both parties appeared for the hearing. Both representatives made opening statements. The DOE submitted five exhibits in the record on consent of the Parent. The DOE did not call any witnesses and rested its case. The Parent submitted six exhibits into the record on consent of the DOE. Included in Parent’s evidence was a direct testimony affidavit from the Parent (Ex. F). The DOE Representative waived cross-examination of the Parent. Both representatives made oral closings.[1] (See August 23, 2023 Transcript).
28 L 5 – p. 29 L 2; p. 34 L 6 – p. 35 L 4)
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The Parent testified credibly as follows. The SETSS Provider was the only provider for the 2021-2022 school year that was able to provide SETSS for the Student. The Student was serviced at their center located in Brooklyn. The only way for the Student to get to and from the SETSS was by paying for a car service back and forth from home or school to the center. The car service was usually paid by cash as they did not accept credit cards. The total amount paid for the 2021-2022 school year was $3,510.00. (Ex. F).
The DOE submitted documentary evidence showing that the Parent filed a DPC on October 25, 2021 under Case No. 220349 asserting that the DOE failed to provide the Student with a FAPE for the 2021-2022 school year in that the Student’s IESP mandated five periods of SETSS per week, but the DOE failed to provide such special education services. The only relief specified in the DPC for Case No. 220349 was a request for a pendency hearing, the allowance of funding for payment of the Student’s five periods of SETSS at an enhanced rate for the 2021-2022 school year, and an award of all related services on the IESP and related services authorizations (RSAs) for such services if required by the Parent. The DPC also included a boilerplate request for “[s]uch other and further relief as appropriate.” (Ex. 4). The DOE also submitted documentary evidence showing that Case No. 220349 was resolved through a Resolution Agreement wherein the DOE agreed to fund the Student’s SETSS for the 2021-2022 school year at an enhanced rate of $150 per session five times per week for a total of 180 sessions to be completed between September 12, 2021 and June 30, 2021 by a qualified provider of the Parent’s choosing. The Resolution Agreement states that “this agreement is the complete settlement of all claims contained in the impartial hearing request dated 10/25/2021 and filed by the parent.” (Ex. 5).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 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. 20 U.S.C. § 1401(9). 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 County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
The IDEA specifically includes transportation, as well as 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. See 20 U.S.C. § 1401(26); 34 CFR 300.34(a), (c)(16). Similarly, New York 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.” 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 District’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). If the DOE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); 8 NYCRR 200.1(ww).
Burden of Proof
The DOE had the burden of proof on all matters at this hearing.[2] It had both the burden of production and the burden of persuasion on each claim put forth by the Parent.[3] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[4] Further, the SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”[5] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.[6] Further,
[U[nder State law as set forth above, the burden of proof has been placed 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. (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement.[7]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
Analysis
The DOE Representative argued at the hearing that the Parent’s claim for reimbursement of payments made to transport the Student to and from his SETSS during the 2021-2022 school year is moot because such relief was previously sought in Case No. 220349 based on the request for “[s]uch other and further relief as appropriate” contained in the DPC for that case. (Ex. 4). I find that such argument lacks merit. The DPC commencing Case No. 220349 was based on the failure of the DOE to provide the five periods of SETSS per week to the Student for the 2021-2022 school year that it had agreed were necessary in the Student’s May 30, 2019 IESP. The issue of transportation was not raised in the DPC commencing Case No. 220349, as it was the DOE’s obligation to provide the SETSS at issue. (Exs. 2 & 4). The DOE elected to resolve Case No. 220349 through a Resolution Agreement that provided that the Student would receive the SETSS from a qualified private provider of the Parent’s choosing at an enhanced rate of $150 per session. The Resolution Agreement states that “[t]his agreement is the complete settlement of all claims contained in the impartial hearing request dated 10/25/2021 filed by the parent. (Ex. 5) (emphasis supplied). As a request for transportation was not included in the impartial hearing request dated October 25, 2021, I find that the Parent’s claim is properly brought and not moot. New York State includes transportation in the definition of special education and requires school districts to provide disabled students with suitable transportation to and from special classes or programs. Educ. Law §§ 4401(1); 4402(4)(a); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww). The Parent therefore had a reasonable expectation that the DOE, in agreeing that the Student required SETSS for the 2021-2022 school year, and further agreeing based on the failure of the DOE itself to provide such special education program, that the Student would receive SETSS at a provider and location of the Parent’s choosing, that the DOE would either provide transportation services to and from the SETSS or reimburse the Parent for such transportation services. As the DOE failed to provide suitable transportation to and from the Student’s special education program, I find that it failed to provide the Student a FAPE for the 2021-2022 school year.
I credit the Parent’s evidence showing that the Student received SETSS at the SETSS Provider during the 2021-2022 school year on the dates and times set forth in the vendor monthly service invoice forms signed by the both the provider and Parent. (Ex. C). I further credit the invoices totaling $3,510 from the Car Service as establishing that the Parent utilized the Car Service to transport the Student to and from the SETSS Provider for his mandated SETSS during the 2021-2022 school year. (Ex. D). Finally I credit that the Parent completed Parent/Guardian Transportation Reimbursement Vouchers for Special Education Services signed by both the Parent and the SETSS Provider seeking reimbursement for the $3,510 in transportation costs incurred by the Parent for the Student to receive his mandated SETSS during the 2021-2022 school year, and that the Parent was not reimbursed for such costs. (Exs. E & F). I therefore find that the Parent is entitled to reimbursement of $3,510 for out-of-pocket costs incurred in transporting the Student to and from the SETSS Provider for his SETSS during the 2021-2022 school year.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The Parent’s claim for reimbursement for the Student’s transportation to and from the SETSS Provider for SETSS is GRANTED for the 2021-2022 school year as follows: The DOE shall, within fifteen (15) days of receipt of this ORDER, reimburse the Parent in the amount of $3,510.00 for out of pocket transportation costs for the 2021-2022 school year.
SO ORDERED
Dated: August 28, 2023
_Philip Sturges_______
Philip P. Sturges
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.
Footnotes
[1] The hearing is this matter was scheduled for August 23, 2023 at 10:30 a.m., a date and time agreed to by the Parent Representative and DOE Representative at the prehearing conference held on August 1, 2023. On August 23, 2023 at 10:29 a.m., the DOE Representative submitted a 14 page written Motion to Dismiss by email, which included for the first time a claim that the relief sought by the Parent was barred by the statute of limitations. I rejected this motion on the record as untimely and found that the DOE had waived the affirmative defense of statute of limitations by failing to raise it at any time prior to the scheduled hearing, either at the prehearing conference or prior to its written motion filed one minute before the hearing was scheduled to commence. I found that statute of limitations is an affirmative defense that must be asserted prior to the hearing or be deemed waived, and that the DOE’s attempt to raise the defense for the first time at the time of the hearing prejudiced the Parent, as the Parent was not given a sufficient opportunity to respond to the purported statute of limitations defense. Had I allowed the statute of limitations defense to be asserted by the DOE, I would have found that the Parent’s DPC was timely. (T p. 28 L 5 – p. 29 L 2; p. 34 L 6 – p. 35 L 4)
[2] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[3] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[4] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
[5] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.
[6] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).