NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 252090
Student’s Name: Student
Date of Birth: Birthdate
District: School District
Hearing Requested By: Parent
Date(s) of Hearing: 8/28/23; 9/15/23, 10/17/23; 10/23/23
Actual Record Close Date: November 1, 2023
Time Sensitive: Yes ☒ No ☐
Hearing Officer: Virginia Tillyard
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
SPECIAL EDUCATION HEARINGS DIVISION
In the matter of Student, a Minor, by her/his Parent(s),
FINDINGS OF FACT AND DECISION
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION
Impartial Hearing No. 252090
Virginia Tillyard
Impartial Hearing Officer
BACKGROUND AND POSITION OF THE PARTIES
Parent, through counsel, filed a due process complaint (the “DPC”)[1] under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 ff (the “IDEA”), Article 89 of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on 7/26/2023, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2021-2022, 2022-2023, 2023-2024 school years.
As remedies in the DPC, Parent requests seeks a new IEP that recommends a highly specialized program with increased supports and services, at an approved nonpublic school, specifically at the Non-Public School, for the remainder of the '23/'24 school year; appropriate special transportation to and from this approved nonpublic school, for the rest of the '23/'24 school year; reimbursement of the parent's expenditures for the Student’s special foods; independent educational evaluations; appropriate bus transportation; compensatory education and services; and declaratory relief. As more fully discussed below, I find that (a) the DOE failed to meet its burden of defending the allegations in the DPC, including showing that it offered Student a FAPE for the years at issue; and (b) the equities support the Parent’s requested relief to the extent discussed below.
JURISDICTION
The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.[2]
PROCEDURAL HISTORY
I was appointed as Impartial Hearing Officer to this case on July 27, 2023. The compliance date was extended in order for potential resolution to be achieved. During pre-hearing conferences, the DOE notified that it would be moving to dismiss claims relating to the development and substance (included recommended placement) of Student’s IEP dated May 16, 2021 (the “2021 IEP”) on the basis of the IDEA’s two year statute of limitations, and did so at the merits hearing on October 17, 2023 before the merits hearing began.[3] The DOE argued that such claims are time barred since Parent did not file the DPC until July 26, 2023 and the DOE sent its the Prior Written Notice regarding Student’s recommended placement for the 2021-22 school year was sent on May 3, 2021.[4] Parent responded by arguing that any periodic denials of FAPE starting from July 27, 2021 onwards should not be barred, for example, periodic failures to implement the 2021 IEP, mistreatment of the Student, the DOE’s alleged failures to provide important information in Spanish and failure to provide Student with appropriate school meals.[5] This hearing officer reserved a full decision on the motion to dismiss until after the hearing, but allowed the hearing to go forward on any claims for the 2021-22 school year other than regarding the appropriateness of the 2021 IEP, as well as the appropriateness of Student’s IEPs developed after July 27, 2021.[6] At this time, I confirm my initial decision on the motion to dismiss, and find that Parent’s claims related to the appropriateness of the 2021 IEP, including its placement recommendation, are barred by the statute of limitations, but all Parent’s remaining claims survived.
At hearing, both parties submitted an exhibit packet and all exhibits were admitted. The Parent’s exhibit packet included the affidavit testimony of the Non-Public School Witness and the Parent. The DOE’s attorney cross-examined both of Parent’s witnesses. Both parties made an oral closing.[7]
LEGAL FRAMEWORK
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.[8]
The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA are (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. 20 U.S.C. § 1400(d)(1)(A)-(B).
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 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 (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998). Since this is not a tuition reimbursement case, the DOE has the burden of proof on all issues.
FINDINGS OF FACT AND DECISION
The DOE’s case – provision of a FAPE
As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.[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). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).
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, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.
The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).
In this case, Parent alleges, among other things, that the DOE failed to implement Student’s IEPs for the years at issue; that the IEPs were inappropriate; that the DOE failed to appropriately evaluate Student; that the Public School mistreated Student; that the Public School caused Student to miss related services because it lacked a wheelchair to transport Student to the therapy rooms; and that the DOE failed to provide interpreting services and important notices in the Parent’s language (Spanish). As mentioned above, Parent’s claims regarding the appropriateness of the 2021 IEP are barred by the statute of limitations, but all other claims remained at issue in the merits hearing.
The DOE did not put on any witnesses regarding the development of Student’s IEPs for the 2022-23 and 2023-24 school year, but rested on its documents in defense of its provision of a FAPE, relying on SRO decision 23-005.[10] The DOE Attorney that its documentary evidence alone proved that the CSE developed an appropriate IEP for Student for each of the years at issue.
I agree with the Parent that in this instance the DOE’s documents are not sufficient to meet its burden of proving that the IEPs at issue were reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances.
First, the DOE did not provide copies of the evaluations, as listed in the Prior Written Notices (PWNs) for the years at issue, that the CSE used in developing the recommendations in Student’s IEPs from April 12, 2022 (the “2022 IEP”) and April 4, 2023 (the “2023 IEP”). The two applicable PWNs (Exs. 7 and 9) both list the same reports used: a Psychological Assessment dated March 4, 2021; a Social History Assessment dated February 19, 2021 and a Classroom Observation dated March 23, 2021. Without these reports, there insufficient basis in the DOE’s documents alone to determine whether the IEP recommendations addressed Student’s needs.
Second, as the Parent pointed out, the DPC includes several different allegations of FAPE denial in addition to allegations that the 2022 IEP and the 2022 IEP were inappropriate. To defend FAPE successfully, the DOE would need to rebut all the DPC’s claims. The DOE’s documentary evidence does not address, for example, the allegations of failure to implement the IEPs for all three years at issue, mistreatment of Student by the Public School, and failure to provide important information in Spanish, Parent’s primary language. Accordingly, unlike the situation described in Appeal No. 23-005, the DOE has not met its burden in this case.[11]
Other evidence in the record, including Parent’s testimony in Ex. P, provides evidence supporting many of the DPC’s allegations that was not rebutted at hearing. The Parent’s testimony provides evidence that the Public School failed to implement Student’s IEP. Student did not do well at the Public School. Her classroom is cramped. She often returned home with unexplained marks and scratches on her body, and a soiled diaper with another diaper placed on top. The Public School admitted that it did not provide all Student’s therapy services because sometimes there was no available wheelchair to transport her to the therapy room. The DOE’s special transportation to the Public School took two hours, even though Student lived only 15 minutes from the Public School. The Public School’s sickness policy caused large amounts of additional missed school and extreme hardship for the family. The policy compelled Parent to pick up both twins from the Public School whenever one of them exhibited any signs of sickness. It was extremely difficult for Parent to transport two wheelchair bound children simultaneously without special transportation.[12]
In March 2022 Parent delivered a letter to the Public School requesting re-evaluation and transfer to a non public school. Receiving no response, Parent had a social worker/parent advocate, [REDACTED] (the “Social Worker”), follow up by email during April and May 2022. Ms. [REDACTED] eventually received a response from the DOE, saying it was too late.[13] Neither the 2022 IEP or the 2023 IEP indicate that the CSE considered Parent’s request for placement in a non public school. [14]
There is also nothing in the record to rebut Parent’s claim that the DOE failed to evaluate Student appropriately, or that it responded to Parent’s request for re-evaluation of March, 2022. The record does not include adequate rebuttal evidence if Parent’s allegations that the DOE’s failures to communicate with the Parent in Spanish. Although the 2021 IEP indicates on the attendance page that bilingual DOE employees attended the IEP meeting, that is not the case for the 2022 IEP and the 2023 IEP.[15] Additionally, although the DOE’s Exhibits 4 and 5 (PWNs) include Spanish translations, those two documents alone fail to rebut each of Parent’s detailed allegations regarding failures with respect to Parent’s language needs.
The DOE also argued initially that Parent cannot claim that Student’s IEPs for the 2022-23 and 2022-24 school years were inappropriate since the program recommendation, for a 12:1+3:1, or 12:1:4 is the same as that at the Non-Public School. The DOE did not pursue this argument further, however. To the extent any discussion here is necessary, I note that, as Parent pointed out, a placement recommendation is distinct from a class recommendation. For example, a DOE NYC DOE School Non-Specialized (District 1-32), NYC DOE Specialized School and NYSED-Non-Public Non Public School (“NPS”) are all different placement types. [16]
The DOE also argued initially Parent has not provided specific evidence of missed services during the years at issue, only vague assertions. The DOE did not pursue this argument further, and in any event, did not provide evidence to rebut any assertions of failure to implement.
Based on the above, I find that the DOE failed to provide Student with a FAPE for the 2021-2022, 2022-2023 and 2023-2024 school years.
REMEDIES
Having determined that the DOE denied Student a FAPE, the remaining issue I must decide is relief. Any relief must be “appropriate in light of the purpose of the Act."[17] The intent of the IDEA was "to ensure that children with disabilities receive an education that is both appropriate and free."[18] Consideration of the equities is a necessary part of any remedy granted under the IDEA: "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing."[19] In order to determine whether Parent’s requested remedies are appropriate, a discussion of Student's educational needs and potential is warranted.
Student’s Needs
There is no dispute about Student’s classification and the nature of her disabilities. She is now [REDACTED] years old and is classified as a student with a disability with a classification of Multiple Disabilities. She is severely disabled, and at the time of hearings was still, at age [REDACTED], both nonverbal and non-ambulatory. She is diagnosed with global developmental delay. There is a history of developmental delays and cerebral palsy in the family. She has a twin sister who also has severe disabilities and uses a wheelchair.[20] Between early 2019 and January 2021 Student’s cognitive functioning remained at approximately the six month age level.[21] She was evaluated and began to receive services under Early Intervention. She started to attend the Non-Public School in May 2020 as a preschool student with a disability.[22] Due to the COVID-19 pandemic, she attended the Non-Public School remotely until July 2021, when she started attending in person. She remained there during the summer of 2021, and began at the Public School in September 2021.[23] Her most recent IEP reports that she was wheelchair dependent, including throughout school, and completely nonverbal, eats a diet of soft, specially prepared foods sent from home, and is a “passive child who displays no intentional communication”. She has weakness and low body tone and needed total assistance for all activities of daily living, including toileting.[24] She cannot walk or sit up without assistance.[25]
On January 20, 2021 the Committee for Preschool Special Education (CPSE) developed an IEP for the remainder of the twelve month 2020-21 school year. The CPSE recommended a 12:1+3 special class in a New York State approved pre-kindergarten program, and for the six week extended school year specifically at the Non-Public School.[26] She was also recommended speech-language therapy (“SLT”) 3x30; occupational therapy (“OT”), 3x30, and physical therapy (“PT”) 3x30.[27]
The CSE convened on May 19, 2021 and developed Student’s IEP for the 2021-22 school year. It recommended a 12-month school year with placement in a DOE specialized school in a special class, 12:1+(3:1) for all academic subjects, with related services of OT, individual, 3X30, PT, individual, 3 X 30, SLT, individual, 3X30, parent counseling and training (“PCAT”) 45 minutes, four times a year and special transportation. She was also determined to be a student with a severe cognitive disability, significant deficits in communication/language, and significant deficits in [REDACTED]ive behavior, resulting in a recommendation for alternate assessment. [28]
On April 12, 2022 the CSE convened and developed Student’s IEP for the 2022-23 school year. It recommended a 12-month school year with placement in a DOE specialized school in a special class, 12:1+(3:1) for all academic subjects, with related services of OT, individual, 3X30, PT, individual, 3 X 30, and SLT, individual, 3X30 and special transportation. She was again recommended for alternate assessment. [29]
On April 4, 2023 the CSE convened and developed Student’s IEP for the 2023-24 school year. It made the same recommendations as for the 2022-23 school year.[30]
Student’s DOE 2021 evaluations, as listed in PWNs discussed above, are not in the record. Her IEPs include scores excerpted from what appear to be classroom-administered assessments called “SANDI” and “FAST”, but no explanation of those scores.[31] Further, the full assessment results are not included elsewhere in the record and none of them corresponds to evaluations or re-evaluations mandated by the regulations at 8 NYCRR §200.4(b).
The testimony of the Parent and the Non-Public School Witness fully confirm the above details of Student’s needs.[32] I found the Non-Public School Witness to be credible, based on her detailed responses to questions and willingness to admit to facts not necessarily in favor of the Parent’s case. The Non-Public School Witness is currently the Director of the Non-Public School and was previously (from November 2020 to June 2022) the Assistant Director of the Non-Public School’s Brooklyn school-age and preschool programs. Before that she was a school psychologist at the Non-Public School’s Brooklyn school age program, which is housed in a different building in close proximity to the preschool program.[33] She knows Student personally because she was Assistant Director of the Non-Public School preschool program at the time Student attended it. I found the Parent to be more credible than not. She appeared confused by questions at times, and hesitated with several responses. An interpreter was present at hearing, but the Parent had difficulty when directed to English language documents in evidence.[34] At one point she said that a document she was directed to was in English, even though the document included a Spanish translation.[35]
Parent withdrew all her stated claims for relief at the start of the hearings except those for a new IEP providing for a new IEP with placement at the Non-Public School, along with special transportation, both for the remainder of the '23/'24 school year; and reimbursement of the parent's expenditures for the Student’s special foods. I will address these claims in turn.
Regarding the Parent’s requested relief, the DOE argued specifically that:[36] (1) A prospective order placing Student directly in a non public school is outside the hearing officer’s jurisdiction and would circumvent the statutory process, as supported by numerous
SRO decisions citing caselaw from the D.C. Circuit;[37] (2) The record contains insufficient evidence that a placement at the Non-Public School is suitable for Student (3) The record contains insufficient evidence that Student needs a placement at the Non-Public School Prospective relief -- new IEP and NPS placement
With respect to prospective changes to a student’s IEP, the Office of State Review notes: An award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. Aug. 17, 2022] [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse
Cent. Sch. Dist., 2019 WL 1432768, at *8 [N.D.N.Y. Mar. 29, 2019] [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug.
24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).[38]
In V.W. v. New York City Dep’t of Educ., S.D.N.Y. 2022, the court cited Doe v. E. Lyme, and Eley v. D.C., 59 IDELR 189 (D.D.C. Aug. 24, 2012): “The issue of prospective placement generally arises ... only after the IEP has been properly completed and the parent wishes to remove the student from the IEP's recommended location.” When prospective funding is compensatory in nature, it can be appropriate. See, e.g. Sabatini v. Corning-Painted Post Area Sch. Dist., 31 IDELR 183 (W.D.N.Y. 1999).
Based on the above, I disagree with the DOE’s argument given the particular facts of this case. This is an instance where prospective changes to the IEP are appropriate. Student’s April 2023 IEP still in effect, Parent has disputed Student’s placement, per the IEP, at the Public School, and (although Parent withdrew her separate request for compensatory education at the beginning of the hearing) the requested prospective relief is a form of compensation for the collective FAPE denials over the three years at issue. In fact, it is the only relief requested for Student’s three years of FAPE denial.
Based on the record, I find that ordering the CSE to revise Student’s IEP to include placement in an NYSED-Approved Non Public School via the CBST referral process is appropriate relief in the current school year.
Regarding Parent’s request for an order specifically placing Student at the Non-Public School, I decline to name any specific NPS insofar as the Non-Public School could for some reason no longer have an available seat for Student, and the CBST referral process is designed to result in an appropriate NPS placement. Further, the testimony of the Non-Public School Witness, as Parent pointed out at hearing, indicates that a deferral to the CBST in this instance would likely result in an application to the Non-Public School’s school-age program.[39] However, in the event the CBST is unable to provide the Parent, within 30 days of its receipt of the order, options for an appropriate non-public school placement, my orders are without prejudice to Parent’s right to identify an appropriate unilateral private placement, and seek reimbursement for the same pursuant to a future due process complaint.
Appropriateness of the Non-Public School to meet Student’s needs
Although this is not a tuition reimbursement case, in which the Parent would have the burden to prove the appropriateness of a unilateral placement, my decision must be based on the record. There must be enough evidence in the record overall to provide a reasonable basis for any order of relief. Since I am ordering only revision of Student’s IEP to provide for a non-public school placement and deferral to the CBST, I do not believe it is necessary to my decision to decide whether the Non-Public School itself can meet Student’s needs. To the extent that determination may be considered necessary, however, I find that the record here meets this requirement, as discussed below.
As summarized above, there is enough evidence from various sources for an adequate understanding of Student’s needs. Even though the Non-Public School Witness last saw Student in person when Student finished preschool at the Non-Public School in August 2021, the record shows that she is familiar with Student’s needs. During Student’s time at the Non-Public School, the Non-Public School Witness observed Student in her classroom and therapies daily as she checked in on classrooms and teachers. She also had the opportunity to speak with Student’s teachers and therapists regarding Student’s progress. Student’s class teacher attended the May 2021 IEP meeting and believed that the school age program at the Non-Public School would be an appropriate kindergarten placement for her. The Non-Public School Witness also reviewed Student’s teachers and therapists’ reports at the time created and again in preparation for the hearings in this case. In her affidavit, and on that basis, she summarized Student’s needs and confirmed that Student would be appropriately placed at the Non-Public School school age program.[40]
During live testimony, she also summarized Student’s current needs after review of the IEPs in evidence including Student’s 2023 IEP and was then asked how the Non-Public School’s school age program would support Student’s classroom needs if Student were to attend the Non-Public School for the remainder of the 2023-24 school year. She responded:
[the Non-Public School] School Age Program specializes in working with children with multiple disabilities who are nonverbal speakers and non-ambulatory. Our students here receive occupational therapy, physical therapy, speech therapy. Our therapists are trained in feeding therapy as well as how to work with students with global developmental delays.
The Non-Public School has classrooms with a 12:1:4 ratio, with one teacher and four certified teacher assistants. Classes have an age range of three years and are also based on functional level. It provides PT, OT and SLT, all from licensed providers. All teachers are licensed in special education and are experienced working with children with multiple disabilities and global developmental delays, and all therapists are similarly experienced as well as licensed in the respective area. The school has a department that holds weekly workshops on different topics, and includes social workers who work 1:1 with parents to support them. There are also parent support groups. [41]
The Non-Public School also has a therapeutic swimming pool and a department called Techworks that provides both high tech and low tech devices, including assistive communication devices, for nonverbal students. It has a wheelchair clinic that both provides wheelchairs to students and wheelchair repairs in situ. There is also a department that loans out [REDACTED]ive equipment to families. At the time of hearings, Student was in fact still using an [REDACTED]ive stroller on loan from the Non-Public School.[42]
The record also confirms that Student made progress, albeit slow, at the Non-Public School.[43] Parent testified that during her time at the Non-Public School, Student learned to sit down independently and respond to her name.[44] The Non-Public School Witness confirmed that the school would have an available place for Student, should Student be referred there.[45]
Student’s need for a placement at the Non-Public School
To the extent that I have already found the Non-Public School is appropriate to meet Student’s needs, her “need” for a placement there is not a distinct issue. Parent is not asserting that the Non-Public School is the only possible placement that can meet Student’s needs, but that the Non-Public School can meet her needs, and that placement there is an appropriate remedy for the denials of FAPE in this case. As the DOE pointed out, Parent testified on cross exam that the Non-Public School is the only school that she wants Student placed at and that she had not looked at any others. However, there has clearly been significant contact with the Non-Public School since Student left. Not only was the Non-Public School Witness willing to appear at hearing and confirm that the Non-Public School has a place for Student, but Parent also testified that, via the Social Worker, she had stayed in contact with the Non-Public School since Student left in August 2021.[46]
Special Transportation
The school district is responsible for providing appropriate transportation to a nonpublic school for a student with a disability classified as such by the CSE, if the school is located not farther than 50 miles from the student’s home and the student attends the school “for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education”. [47]
The State Education Department has indicated that a CSE should consider whether the student’s disability prevents the student from using the same transportation provided to nondisabled students, or getting to school in the same manner as nondisabled students. In developing transportation recommendations, the 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".[48] 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.[49] See guidance available at: Transportation:EMSC:NYSED. Additional New York State guidance is available at: Special Transportation for Students with Disabilities (nysed.gov).
Student’s 2021, 2022 and 2023 IEPs all recommended special education. Based on that, as confirmed by the above review of Student’s needs, I find that Student requires specialized transportation to assist her in benefiting from special education and am including the requested order for special transportation.
Reimbursement for food expenses
Parent seeks reimbursement upon submission of proof of the parent's expenditures of Student's special foods, which the parent supplied at her own expense for Student to eat during the school day since July 27, 2021, which would have been publicly funded if not for Student’s special needs.
The DPC includes claims brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Under Section 504, a school district must provide individuals with an opportunity for an impartial hearing to resolve disagreements arising under the statute (see 34 C.F.R. § 104.36). IHOs in New York have jurisdiction over claims brought under Section 504. A.M. ex rel. J.M. v. New York City Dept. of Educ., 840 F. Supp. 2d 660, 671 n.13 (E.D.N.Y. 2012). Although an IEP can include certain medical accommodations such as nurse services, special food is not within the IDEA. I am therefore considering this as a Section 504 claim.
In order to support a claim that there has been a violation of Section 504, a party must show that he or she has a disability, is otherwise qualified for the benefit that has been denied and has been denied the benefit by reason of the disability. C.D. ex rel. S.D. v. New York City Dept. of Educ., 2009 WL 400382, at *7 (S.D.N.Y. 2009) [citing Weixel v. Bd. of Educ., 287 F.3d 138, 146-47 (2d Cir. 2002)]. Section 504 and the Americans with Disabilities Act ("ADA") require that "an otherwise qualified handicapped individual ... be provided with meaningful access to the benefit that the grantee offers." This means that a school district that provides food services to students without disabilities must provide students with disabilities access to equivalent food services. A parent has the burden of proof in a Section 504 claim.
Student can only eat pureed food.[50] I take official notice that she was entitled to free school lunch during the school years at issue. See www.schools.nyc.gov/school-life/food/school-meals (site visited 10/31/23). Parent supplied Student’s school food for the periods at issue.[51] However, there is no evidence in the record that the DOE did not provide equivalent food for Student, or even that it offered her only the same food as other students. Parent has therefore not met her burden under Section 504 to demonstrate that the DOE did not provide a reasonable accommodation for Student. Parent’s claim for reimbursement for food is therefore denied. Parent may wish, if necessary in the future, to request Section 504 accommodations.
Equitable Considerations
Equitable considerations apply in fashioning compensatory education relief.[52] Equitable factors may include, for example, consideration of the parties' conduct, such as when the school system reasonably "require[s] some time to respond to a complex problem," or when parents' refusal to accept special education delays the child's receipt of appropriate services.[53]
There are no equitable considerations weighing against the Parent in this case. She communicated as best she could with the CSE regarding Student’s needs and her dissatisfaction with Student’s IEPs. The record shows that the DOE did not respond.
Other remedies
I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) shall, within 15 days of the date of this decision, convene a Committee on Special Education (“CSE”) meeting to review this decision and develop an appropriate IEP for Student that recommends the following program, on a twelve month basis, for at least the remainder of the 2023-24 school year:
• placement in a full time, twelve month specialized program for students with multiple disabilities including global development delays (such as, for example, the [REDACTED] Brooklyn program) with instructors and therapists experienced with such a student population, and that has a currently available seat
• a class setting no larger than 12:1:4
• Physical therapy, 3 X 30 per week, 1:1
• Speech-language therapy, 3X 30 per week, 1:1
• Occupational therapy, 3X30 per week, 1:1
• Other appropriate supports and services for the above student population
• appropriate door to door special transportation for the rest of the 2023-24 school year consisting of a lift bus, a 1:1 transportation paraprofessional, and a miniwagon or other vehicle capable of carrying a wheelchair; and it is further
ORDERED that the CSE shall defer Student’s IEP, as revised in accordance with the preceding order, to the New York City Department of Education’s Central Based Support Team which shall, within 15 days, locate an appropriate non-public school that can implement the revised IEP.
November 1, 2023
________________________________
Virginia Tillyard, 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
CERTIFICATION OF IMPARTIAL HEARING OFFICER
I, Virginia Tillyard, Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the below list of exhibits included in this decision, taken together with any prior submissions with certifications, identifies each exhibit admitted into evidence in the above matter as of this date.
In addition, the full record of this case, maintained by the district, includes all briefs, arguments or written requests for an order filed by the parties; all written orders, decisions or subpoenas issued by me; and transcripts of all proceedings on the record, along with any other applicable items described in 8 NYCRR §200.5(j)(5)(vi)(a).
I FURTHER CERTIFY that upon information and belief, the materials included in the record are either the original or true copy of the original documents submitted in this matter.
Dated: November 1, 2023
__________________________________________
Virginia Tillyard, Impartial Hearing Officer
EXHIBITS ADMITTED INTO EVIDENCE
PARENT EXHIBITS
| Ex. | Description and Date | # of pages |
|---|---|---|
| A | Impartial Hearing Request w/ receipt confirmation; July 26, 2023 | 11 |
| B | [REDACTED] medical information; June 2019 | 3 |
| C | Bilingual social history; January 23, 2019 | 3 |
| D | Occupational therapy evaluation; January 26, 2019 | 3 |
| E | Physical therapy evaluation; January 28, 2019 | 3 |
| F | Bilingual speech-language therapy evaluation; February 2, 2019 | 4 |
| G | Child Outcomes Summary Form; February 15, 2019 | 6 |
| H | Bilingual psychological evaluation; February 8, 2019 | 6 |
| I | [REDACTED] quarterly report, August 2021 | 3 |
| J | [REDACTED] physical therapy report; July 2021 | 2 |
| K | [REDACTED] occupational therapy report; August 2021 | 2 |
| L | [REDACTED] quarterly report; May 2021 | 3 |
| M | [REDACTED] quarterly speech report; May 2021 | 2 |
| N | IEP; January 20, 2021 | 20 |
| O | Affidavit of [REDACTED] | 5 |
| P | Affidavit of [REDACTED] | 4 |
| Q | Affidavit of [REDACTED] (translator) | 6 |
DOE EXHIBITS
| Ex. | Date | Description | # of pages |
|---|---|---|---|
| 1 | 09/27/2023 | SESIS Event Log | 19 |
| 2 | 02/15/2019 | Preschool IEP | 16 |
| 3 | 05/19/2021 | IEP | 25 |
| 4 | 05/19/2021 | PWN | 7 |
| 5 | 05/03/2021 | PWN School Location Kindergarten | 9 |
| 6 | 04/12/2022 | IEP | 30 |
| 7 | 04/29/2022 | PWN | 3 |
| 8 | 04/04/2023 | IEP | 31 |
| 9 | 04/05/2023 | PWN | 3 |
IHO EXHIBITS
None
Footnotes
[1] Ex. A
[2] Since all the relief that Parent is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.
[3] See Hearing Transcript, pp. 21 and 29. References to “Hearing Transcript” in this decision refer to the cumulative transcript of any hearings in this case.
[4] Ex. 5
[5] Hearing Transcript, pp. 41-43
[6] Hearing Transcript, p. 44
[7] Hearing Transcript, pp. 137-151
[8] 20 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.
[9] See the IDEA’s definitions at 20 U.S.C. §1401.
[10] Application of a Student with a Disability, Appeal No. 23-005, Office of State Review of the New York State Education Department
[12] Ex. P
[13] Id.
[14] Exs. 6 and 8
[15] See Exs. 3-25, 6-29 and 8-31.
[16] As specified in a separate section in the IEP, and as listed in the DOE’s Standard Operating Procedures Manual (Special Education Standard Operating Procedures Manual (nyced.org)
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985)
[18] Carter, supra
[19] Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) (citation and internal quotation marks omitted).
[20] Exs. B-H and P.
[21] Ex. 3
[22] Ex. I
[23] Exs. 2-5; Ex. N; Ex. P
[24] Ex. 8
[25] Ex. P
[26] Ex. N
[27] Id.
[28] Ex. 3
[29] Ex. 6
[30] Ex. 8
[31] Ex. 6, pp 1-2 and Ex. 8, pp 1-2
[32] Ex. P; Ex. O, ¶13
[33] Ex. O, ¶8
[34] Hearing Transcript, p. 109-110
[35] Hearing Transcript, p. 116
[36] Hearing Transcript, pp. 46-47 and 137-141 (DOE opening and closing)
[37] Adams v. Dist. of Columbia, 285 F. Supp. 3d 381 (D.D.C. 2018)
[38] Application of a Student with a Disability, Appeal No. 23-059.
[39] Hearing Transcript, p. 60
[40] Ex. O
[41] Hearing Transcript, pp. 78-90
[42] Id.
[43] Exs. O and P
[44] Hearing Transcript, p. 120
[45] Hearing Transcript
[46] Hearing Transcript, pp. 124-132
[47] N.Y. Educ. Law §4402(4)(d).
[48] Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at Special Transportation for Students with Disabilities (nysed.gov)
[49] 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]
[50] Ex. P
[51] Ex. P; Ex. 8-5,
[52] See, among other decisions, Reid 401 F.3d at 524; French v. N.Y.S. Dep’t of Educ., 476 F.App’x 468 (2d Cir. 2011); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994); Application of a Student with a Disability, Appeal No. 19-120; Application of a Student with a Disability, Appeal No. 18-002); R.L. v. Miami Dade Cty. Sch. Bd., 757 F.3d 1173 (11th Cir. 2014) (parents’ failure to consider more appropriate placements was an equitable consideration in affirming denial of compensatory award).
[53] Reid, citing M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 391-92, 396-97 (3d Cir. 1996)