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FINDINGS OF FACT AND DECISION
Case Number: 249405
Student’s Name: REDACTED (“Student”)
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Leslie Engelsohn
Date of Filing: June 29, 2023
Hearing Requested by: REDACTED (“Parent”)
Date of Hearing: October 30, 2023 and November 16, 2023 Record Close Date: November 22, 2023
Date of Decision: November 22, 2023
Time Sensitive: No
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 30, 2023
For the Student:
REDACTED, Parent’s Representative
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 16, 2023
For the Student:
REDACTED, Parent’s Representative
REDACTED, Parent Student
REDACTED, Parent Student
For the Department of Education:
REDACTED, District Representative
I. BACKGROUND AND PROCEDURAL HISTORY
This case concerns the Student who is classified by the Committee on Special Education (“CSE”) as a student with a Learning Disability. The Parents, through the Parents’ Attorney, filed a Due Process Complaint (“DPC”) on June 29, 2023. In the DPC, the Parents sought reimbursement for transportation costs to and from privately retained Special Education Teacher Support Services (SETSS) for the 2021-2022 and 2022-2023 school years. In support of the Parents’ claims, the Parents argued that under New York State Education Law §3602-c, §4402 and § 4404, the Department of Education (“DOE”) was required to provide transportation services for the Student to and from the Student’s SETSS at no cost to the Parents. However, since the DOE failed to do so, the Parents had no choice but to arrange for private transportation services for the Student and therefore, the Parents incurred out-of-pocket expenses in order to implement the Student’s special education services during the two school years at issue.
A pre-hearing conference was held on July 31, 2023. Status conferences were held on September 7, 2023 and October 13, 2023. The Due Process Hearing (“DPH”) was held on October 30, 2023 and on November 16, 2023. Parents sought to introduce ten documents in support of their case. The DOE did not introduce any documentary evidence or witness testimony. Parents’ exhibits A-J were admitted to the record. The Parent entered the affidavit testimony of the Parent into the record, and the District cross examined the Parent.
Considering the foregoing and as more fully discussed below, I find that the District failed to meet their burden and the Parents are entitled to the relief they seek for the 2021-2022 and 2022-2023 school years.
II. FINDINGS OF FACT AND ANALYSIS
The evidence in the hearing record shows that the Parents incurred out-of-pocket transportation expenses in order to transport the Student to and from his SETSS during the 2021-2022 and 2022-2023 school years. For the 2021-2022 school year, the Parents used the Transportation Provider to transport the Student to and from his SETSS.[1] The total amount incurred was $5,226.[2] For the 2022-2023 school year, the Parents also used the Transportation Provider to transport the Student to and from his SETSS, and the total amount incurred was $1,222. [3]
Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing.[4] The Individuals with Disabilities Education Act (“IDEA”) provides that children with disabilities are entitled to a Free Appropriate Public Education (“FAPE”).[5] 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.[6] 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.[7] To meet its 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.”[8] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[9] In addition, an IEP must be properly and timely implemented.[10] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [11]
Furthermore, under New York State Education Law § 3602-c, parents who have privately enrolled their child in a nonpublic school may seek educational “services” for their child with a disability by filing a request in the district where the nonpublic school is located.[12] Then, the district of location’s CSE must review the request and create an Individualized Education Services Program (“IESP”) for the student based on the student’s individual needs in the same manner and with the same contents as an IEP.[13] The implementation of IESP services falls on the district of location insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.”[14] The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.”[15] Additionally, Section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to NY Education Law § 4404.
Furthermore, the IDEA and New York State Education Law requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[16] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” [17]
In addition, New York State Education 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.”[18] The requested transportation must also be “reasonable when all of the facts are considered.”[19] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student’s mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[20] 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. [21]
The Parents have requested reimbursement for the transportation expenses they incurred during the 2021-2022 and 2022-2023 school years. Before rending decision on the merits, I must first consider the DOE’s res judicata argument and determine whether this case is barred by res judicata. The doctrine of res judicata applies to administrative proceedings when the agency acts in a judicial capacity.[22] Res judicata "precludes parties from relitigating issues that were or could have been raised in a prior proceeding.”[23] Specifically, res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. [24]
In this matter, the DOE did not introduce any documentary evidence or any witness testimony in support of their res judicata argument. Therefore, I find that the DOE did not meet its burden at the hearing to show that res judicata precludes the Parents from their requested relief related to the 2021-2022 and 2022-2023 school years.
I find that the Parents are entitled to reimbursement for the transportation expenses incurred during the 2021-2022 and 2022-2023 school years. I find that the DOE failed to meet its burden at the hearing to show that the Student did not require transportation services. Although the IESP in question does not provide for transportation services, the DOE Representative did not call any witnesses at the hearing to testify as to why the CSE determined that transportation services were not appropriate for the Student. Therefore, I find that the DOE declined to “offer a cogent and responsive explanation for their decisions” to not include transportation services in the Student’s IESP.[25] In addition, the DOE did not contest the reasonableness of the costs of the transportation services incurred by the Parents, and I find that the Student was entitled to transportation services. Accordingly, a full award reimbursing the Parents for the transportation costs is warranted for the 2021-2022 and 2022-2023 school years.
III. DECISION AND ORDER
The DOE is hereby ORDERED to: (1) Reimburse the Parents in the amount of $6,448 for the transportation costs the Parents incurred for the 2021-2022 and 2022-2023 school years within 35 days of the date of this
Order.
SO ORDERED.
DATED: November 22, 2023
Leslie Engelsohn
Leslie Engelsohn
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.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Impartial Hearing Request June 29, 2023 4 pages
B. Individualized Education services Program March 4, 2020 9 pages
C. Invoices for 2021-2022 Various 11 pages
D. Transportation Reimbursement Voucher for 2021-2022 Various 20 pages
E. Receipts from Transportation Provider for 2021-2022 Various 10 pages
F. Invoices for 2022-2023 Various 22 pages
G. Transportation Reimbursement Voucher For 2022-2023 Various 20 pages
H. Invoices from Transportation Provider FOR 2022-2023 Various 10 pages
I. Calculation of total requested Undated 1 page
J. Affidavit of Parent APPENDIX November 7, 2023 1 page
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent
REDACTED District Representative
REDACTED Parent Attorney
REDACTED Private School
REDACTED Transportation Provider
Footnotes
[1] Ex. J
[2] Ex. C, Ex. D, Ex. E
[3] Ex. F, Ex. G, Ex. H, Ex. J
[4] NY Educ. Law § 4404(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
[5] 20 U.S.C. § 1400 (d)(1)(A).
[6] 20 U.S.C. § 1401(9).
[7] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[8] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[9] Endrew F.,137 S.Ct. 988, 999.
[10] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[11] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[12] NY Educ. Law § 3602-c(2).
[13] NY Educ. Law § 3602-c(2)(b)(l).
[14] NY Educ. Law § 3602-c(2)(a).
[15] NY Educ. Law § 3602-c(2)(b)(1).
[16] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[17] Id. at 1375 (internal citations omitted).
[18] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[19] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[20] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[21] See Donald B., 117 F.3d at 1375.
[22] K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 (S.D.N.Y. June 2, 2017); K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 (S.D.N.Y. 2010); Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19. 2006).
[23] K.B., 2012 WL 234392, at *4; Perez v. Danbury Hosp., 347 F.3d 419, 426 (2d Cir. 2003); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir. 1985); Grenon, 2006 WL 3751450, at *6.
[24] K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6.
[25] Endrew F., 137 S.Ct. at 1002.