Impartial Hearing Decision

CASE NUMBER: 601374 - NYC: 249328

FINDINGS OF FACT AND DECISION

Student’s Name1: REDACTED (“Student”)

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED

Request Date/Date Complaint Filed: 06/27/2023

Date of Hearing: 11/08/2023

Actual Record Closed Date: 12/06/2023

Date of Decision: 12/06/2023

Date of Distribution if Different than Decision Date: n/a Hearing Officer: Harry A. Christodoulou

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Capitalized words not explicitly defined right after the word(s) in brackets are defined in the table in Appendix A – Redaction Identification Page on page 13.

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 8, 2023:

For the Student:

REDACTED (hereinafter referred to as “Parents’ representative”)

For the Department of Education:

REDACTED (hereinafter referred to as “District’s representative”)

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”), with a disability classification of “Speech or Language Impairment” on Student’s latest IEP on record (Ex. P-B-1). Student’s eligibility for special education supports and services is not in dispute.

On June 27, 2023, Parents, through Parents’ representative’s firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on June 28, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.

It is asserted in the DPC that the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents sought, inter alia, an order directing the DOE to reimburse Parents for the payments they made transporting Student to receive the Special Education Teacher Support Services (“SETSS”), and then back home or to school, during the 2021-2022 school year (“SY”) (Ex. P-A-2).

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA2 and its implementing regulations,^[3] and the New York State Education Law4 and its implementing regulations.^[5]

PARTIES’ POSITIONS AND CASES PRESENTED

District’s representative made an opening statement indicating that Parents cannot meet their burden in this case, that the Individualized Education Services Program (“IESP”) dated September 14, 2020 was developed by a team of experienced professionals and does not recommend transportation services for 2021-2022 SY, and therefore requests that Parents’ relief be denied. (T. P33-34). The DOE did not make a formal concession regarding the denial of a FAPE, and the DOE rested on Parents’ documents (T. P30-P31). District’s representative confirmed that the DOE rested its case (T. P34) and waived the DOE’s closing statement (T. P39).

Parents’ representative made an opening statement asserting, inter alia, that:

2 20 U.S.C. § 1400 et seq.

4 Educ. Law Art. 89 § 4404 et seq.

Parents' case relates to transportation to and from Student's SETSS’ provider for the 2021-2022 SY; during that year, there was an IESP developed at the end of September 2020 (Ex. P-B), which mandated that Student receive five sessions per week of SETSS; during that SY, Parents had to find an independent provider and there was no DOE provider made available to Student; the provider was at a location that required Student to be transported to and from school, as well as from home at times -- to and from home at times; Parents paid out of pocket for that transportation service; the records of the SETSS provider can be seen in Ex. P-D, and the records of the transportation service can be seen in Ex. P-D and P-E, which are the voucher forms that the DOE has for these purposes, and the invoices, respectively; and the DOE did not reimburse Parents through that voucher process.

Parents are not disputing the IESP, and transportation to and from the SETSS provider is not something that is generally noted on the IESP; the IESP, where it references transportation, has to do with special transportation services for a student with disability related to their movements, such as sometimes a student who is in a wheelchair and the like, or other such disabilities; this case however is not related to special transportation services but regular transportation services for Student to be able to reach the provider; that Student is entitled to that transportation and to reimbursement for that transportation pursuant New York State Education Law Section 3602-c, which requires the DOE to provide services to students in New York, including non-public schools, and the services are defined in section 3602-c(1)(d) to include programs as set forth in Education Law 4401(1); and provision of the education law includes transportation provided at no cost to the parents as part of the definition of special education, as well as Education Law 4402(4)(d), which also requires that the DOE provides suitable transportation to and from a private placement providing similar services as those recommended by the DOE.

Based on the above provisions in the New York State Education Law, Parents are entitled to reimbursement for the expenses that has been incurred in paying a transportation provider; and Parent are, therefore, requesting reimbursement for those transportation services (T. P34-P36).

Parents submitted five documents in Parents’ disclosure, which were admitted to the record in support of Parents’ case (T. P38, & P39). All exhibits that are admitted to the record are listed below (see Appendix B). Parents’ representative confirmed that Parents rested their case (T. P39) and waived a closing statement (T. P39). Parents’ representative confirmed, based on the invoices which Parent had submitted as exhibits, that the total dollar amount of Parents’ claim amounts to $4, 836.006 (T. P40).

This amount correlates to the total of the Transportation Provider’s invoices (see Ex. P-E).

LEGAL FRAMEWORK

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits7.

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE8. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"9.

The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.^[10]

Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them11.

The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools.^[12] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,^[13] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities.^[14]

7 Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

8 20 U.S.C. § 1415[f][3][E][i].

9 Rowley, 458 U.S. at 203.

11 Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.

These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.”^[15]

The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document16:

“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …

Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student . . . ”

Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.^[17] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”^[18] and damage awards are not available under the IDEA.^[19]

16 Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.

The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”^[20]

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 parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is not applicable in this case.^[21]

FINDINGS OF FACT AND DECISION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from the child’s special education, in its definition of related services.^[22] 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," (my emphasis) and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (my emphasis).^[23]

In the Student’s IESP on record, which according to the assertions in the DPC was the last program that the DOE developed for Student that Parents had agreed with and was developed on September 14, 2020, the DOE recommended, inter alia, “SPECIAL EDUCATION PROGRAM: Special Education Teacher Support Services (SETSS); Direct Service, Group Service, Language of Service: Yiddish; 5 time(s) per week; Period; Separate Location …” (Ex. P-B-8). The program was to be implemented at a separate location.

It is further asserted in the DPC that: the DOE did not provide a SETSS provider to work with Student and that Parents found providers willing to provide Student with the required SETSS for the 2021-2022 SY who were only available at a designated location outside of Student’s home and school; the only way for Student to receive SETSS during this time was to travel from home or school to the designated location where the services were delivered and back to school or home; Parents paid out of pocket for this transportation to enable Student to receive the services that the DOE was required to provide; and if not for the transportation being paid for, Student would not have received SETSS during the 2021-2022 SY (Ex. P-A-1).

The only defense that was raised by the DOE to Parents’ claim was that the IESP dated September 14, 2020 was developed by a team of experienced professionals and does not recommend transportation services for 2021-2022 SY. Presumably the defense is based upon the fact that the IESP provision for Special Transportation to address the needs of the student relating to Student’s disability has the box “None” ticked (Ex. P-B-10).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.^[24] If a CSE 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.^[25]

The State Education Department has indicated that a CSE should consider and document the needs of a student relating to the student’s disability, and provides several examples including: a student's mobility, behavior, communication, physical, and health needs, when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate".^[26] 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.^[27]

Parents’ representative’s assertions that transportation for a SETSS’ provider is not something that is generally noted on the IESP; and that the IESP, where it references transportation, has to do with special transportation services for student with disability related to their movements, such as sometimes a student who's in a wheelchair and the like, or other such disabilities, accords with my understanding and experience with IESPs. In other words, the omission to include in Student’s IESP transportation for the program (i.e., the SETSS), which was mandated at a separate location does not avail the DOE. The DOE was required to provide the SETSS, as well as the transportation needed to accept that program, not Student’s Parents.

A district is required by State law to locate and assign publicly provided teachers for a dually enrolled student28.

28 Educ Law § 3602-c[2][a].

It has also been held that “that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA"32. While the claim for the SETSS is not before me, the provision of the SETSS encompassed the transportation to and from the services, which could not have taken place without that service incurring. But for Parents’ intervention in arranging: i) the SETSS provider; and ii) the car service, Student would not have received the mandated SETSS that the DOE had included on Student’s last agreed upon IESP, necessary for Student to receive educational benefits during the SY in question.

In the circumstances, I find that the DOE has failed to discharge its burden that it provided Student with equitable services for the SY in question, and that Parents are therefore entitled to reimbursement of the cost of the car service used to transport Student to and from the SETSS provider (subject to the below equitable consideration and deduction).

Parents disclosed the vendor Monthly Service Invoice Forms signed by the SETSS providers, evidencing the SETSS provided to Student (Ex. P-C). These forms are certified by the providers. It is clear from the documents that Student received SETSS from September 20, 2021 through June ^[30], 2022. Parents also disclosed the Parent/Guardian Transportation Reimbursement Vouchers for Special Education Services forms, signed by Parent and the provider of the transportation service.

29 See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.

31 See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].

32 Application of a Student with a Disability, Appeal No. 20-140.

Parent signed the forms affirming that the expenses were incurred “in transporting my child to the provider” (my emphasis). The representative of the provider signed the forms affirming that the services listed therein were provided. As noted, it is asserted in the DPC that Parents found providers willing to provide Student with the required SETSS for the 2021-2022 SY “who were only available at a designated location outside of Student’s home and school” (my emphasis) (Ex. P-A).

The IESP had authorized the SETSS: i) at a separate location; and ii) as a group service, yet for the period September 20, 2021 through November 17, 2021 the service was being provided in the home, as evidenced by the vendor Monthly Forms. The SETSS provider in question certified that the services were provided at “Services Location: Home”.

It would not be equitable for the DOE to be funding a private car service to be fetching Student from school (or taking Student to school)^[33] and/or to be funding transportation costs for SETSS that were not provided in accordance with Student’s program, as mandated in Student’s IESP. As such, that portion of the transportation claim that relates to the SETSS that were provided in the home is being denied. Although the Transportation Provider’s invoices are stamped “PAID”, no proof of Parents’ payments were included in Parents’ disclosure and therefore payment will be contingent upon such proof being submitted to the DOE’s Implementation Unit.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.

ORDER:

Based upon the above Findings of Fact and Decision, it is hereby ORDERED that, the DOE shall reimburse Parents the cost incurred transporting Student to and from the SETSS provider during the period November 22, 2021 through June 30, 2023 (Ex. P-C-4 through P-C-11) in the sum of $3,770.0034, upon the receipt by the DOE’s Implementation Unit of proof of Parents’ payments to the Transportation Provider for those services provided.

SO ORDERED.

34 Calculated by including the last two entries from the November 30, 2021 invoice (Ex. P-E-3), plus the totals of the December 31, 2021 through June 30, 2022 invoices (Ex. P-E-4 through P-E-10).

DATED: December 06, 2023

__H.A.C._ (Signed Electronically) ___

Impartial Hearing Officer

Harry A. Christodoulou

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

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

P-A. Impartial Hearing Request 06/27/2023 4 pages

P-B. IESP 09/14/2020 11 pages

P-C. Vendor Monthly Service Invoice Forms Various 11 pages

P-D. Transportation Reimbursement Vouchers Various 21 pages

P-E. Invoices from Transportation Provider Various 10 pages

DOE’S EXHIBITS

- - - -

IHO’S EXHIBITS

IHO-I DOE’s Due Process Response 07/06/2023 3

Footnotes

[3] 34 C.F.R. § 300 et seq.

[5] 8 NYCRR § Part 200.

[10] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

[12] See 34 C.F.R. § 300.137(a).

[13] See 34 C.F.R. § 300.134.

[14] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.

[15] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated . . . as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).

[17] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).

[18] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).

[19] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).

[20] See Doe v. East Lyme, 790 F.3d at 454.

[21] NYS Educ. Law § 4404(1)(c). The burden was confirmed by the parties’ representatives at a prior SC (T. P16, & P17).

[22] See 20 U.S.C. § 1401[26]; & 34 CFR 300.34[a], [c][16].

[23] See Educ. Law §§ 4401[1]; 4402[4][a]; & Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].

[24] See Application of a Child with a Disability, Appeal No. 16- 035.

[25] See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; & 8 NYCRR 200.1[ww].

[26] Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf.

[27] See 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] It has been found that the District's system for providing SETSS that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the parent acquired online is a violation of State law29. It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"30 and that the application of State law requires that core instruction provided by a school district be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into31.

[30] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).

[33] The SETSS that were provided at home were all provided from 8am-9am, whereas the SETSS provided “at a separate location” were not provided to Student each day at the same time. Some days the services occurred from 6pm-7pm, other days from 3:30pm-4:30pm, from 5:30pm-6:30pm; from 2:30pm-3:30pm, and also from 6:30pm-7:30pm. It is inconceivable that Student’s school started before 8am. In other words, Parents were using the car service to take Student to school in the morning from home, as opposed to traveling from school to home (or a separate location) for the SETSS.