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CASE NUMBER NYC: 252565
FINDINGS OF FACT AND DECISION
Student’s Name1: REDACTED (“Student”)
Date of Birth: REDACTED
School District: N.Y.C. Dept. of Ed., District REDACTED
Hearing Requested by: REDACTED (“Parent(s)”) Request Date/Date Complaint Filed: Date(s) of Hearing: October 12, 2023
Actual Record Closed Date: October 31, 2023
Date of Decision: November [1], 2023
Hearing Officer: Teril Holston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
October 12, 2023
For the Student:
REDACTED, Parent Representative
REDACTED, Parent Representative
REDACTED, Parent Student
For the Department of Education:
REDACTED, Consultant Impartial Hearing Representative
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On August 14, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the District failed to recommend appropriate related services, specifically, specialized transportation due to the student’s needs and bullying (P-A). The Petitioner is seeking reimbursement for transportation costs and an order “clarifying [the student’s] special transportation needs, emphasizing that an ordinary bus occupied by neurotypical students is not appropriate for [the student], and that [the student] is in need of a short bus” (Id.).
In light of the foregoing and as more fully discussed below, I find that the District did not meet its burden to demonstrate that it offered the student FAPE for the 2022-2023 school year and the parent is entitled to relief.
PROCEDURAL HISTORY
On August 16, 2023, the undersigned was appointed to conduct an impartial hearing. On September 14, 2023, the parties gathered for a prehearing conference. On October 12, 2023, a virtual impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing and the record closed on October 31, 2023.
At the hearing, the District’s representative declined to make any arguments or cross-examine the parent’s witness. In support of the District’s position, the District submitted documents (Ex. DOE-1 through DOE-9).[2] 3 The documents were entered into evidence without objection.
The Parent submitted documents (Ex. P-A through P-E4), including the testimonial affidavit of the parent, in support of the Parent’s case5. All of the documents were admitted into evidence without objection. The parent rested.
I find the District’s documentary evidence credible.
4 The signed and notarized copy of exhibit P-E was submitted into the record on October 31, 2023.
I find the parent’s documentary and testimonial evidence credible.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations:[6]
The student is a REDACTED -year-old classified by the Committee on Special Education (CSE) as student with REDACTED (DOE-9).
On April 28, 2022, the CSE convened and recommended the student be placed in an 8:1+1 class setting in REDACTED school, with related services (DOE-9). The CSE further recommended the student receive specialized transportation from the closest safe curb location “to address concerns” (Id.). According to the parent, the student began riding the school bus at the beginning of the school year. On one of the first days of school, the student came off the bus and stated “hurt” to his mother and she noticed a bruise on his arm (P-E). The parent contacted the bus monitor to determine what may have occurred on the bus to the student (id.). The bus monitor told the parent that she didn’t know what happened because there were too many children but the bus monitor reported the student was observed chewing on his shoes (id). The parent followed up with the principal and the Office of Pupil Transportation where she was advised that there would be an investigation (id.). The parent is not aware of any investigation or outcome (id.). The parent deduced that the student had been bullied on the bus and removed the student from the bus (id.). The parent sought a letter from the student’s doctor in or about October 2022 (P-C). Per the student’s doctor, the student “requires a smaller bus with fewer children with less duration due to his medical conditions” (id.). The record is not clear as to if or when the parent provided this letter to the District.
On April 4, 2023, the student’s doctor also completed the District’s form to request a health paraprofessional for the student (DOE-4). On April 18, 2023, the parent completed and signed a HIPAA compliant release regarding the student’s medical records (DOE-3).
The CSE reconvened on April 19, 2023 (P-B). The CSE noted in the student’s IEP that the student rode the bus only a few times in September 2022 (id.). The CSE also noted that the parent has indicated that the student requires a minibus and 1:1 transportation professional and that the medical accommodation paperwork has been uploaded for review (P-B-8). The IEP does not note any other information regarding the parent’s request. With respect to the student’s needs, the IEP notes that the student requires transportation from the closest safe curb because of his “delays in speech, cognition, and a lack of safety awareness in the community,” preventing the student from traveling alone (P-B).
On April 25, 2023, the parent’s request for a minibus, route with fewer students and a paraprofessional were denied due to the OSH physician’s inability to reach the student’s PCP to discuss the student’s needs and the inability “to determine the student’s behavior” (DOE-2). The parent was not informed as to why the request was denied (See Transcript).
Throughout the school year, the parent secured private transportation to and from school at the parent’s own expense (P-D).
CONCLUSIONS OF LAW
A. FAPE
The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE.[7] A “free 4F appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[8] In order to demonstrate that a FAPE is being provided, the school district must show
5F “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[9] The student's recommended program must also be provided in the least
6F restrictive environment with non-disabled peers.[10] 7F
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.[11] “Adequate compliance with the 8F procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.”[12] 9F
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [13]. 10F
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [14]. A school district offers a FAPE
1F "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [15]. “To meet its substantive obligation under the IDEA, a school 12F must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[16] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[17]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.[18]
Special education services must be provided by the district in conformity with the student's IEP [19]. 13F
A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits [20].
14F
However, school districts are not required to "maximize" the potential of students with disabilities [21], but must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords
15F the student with an opportunity greater than mere 'trivial advancement'" [22]. The IEP must be "reasonably
16F calculated to provide some 'meaningful' benefit" [23]. 17F
ANALYSIS
As a preliminary matter, the burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). Therefore, I find that the District has the burden of proof to demonstrate it offered the student a FAPE.
FAPE
It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2022-2023 school year for a number of reasons. The DOE failed to meet its burden. The District submitted no relevant evidence or witnesses to demonstrate it provided the student with a FAPE for the school year at issue. A review of the hearing record offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describe the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[24] The District failed to provide any defense of the specialized transportation recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year
2. Transportation
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.[25] If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport".[26]
In addition, 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".[27] Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE.[28]
The requested transportation must also be "reasonable when all of the facts are considered".[29] According to a guidance document, the CSE should consider 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 the IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate".[30] 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.[31]
Here, the student’s IEP notes that the student has a lack of safety awareness requiring special education bussing (DOE-1). The parent argues that the student’s medical condition is that which requires he be placed on a minibus with a 1:1 paraprofessional. To support that assertion, the parent submitted a brief note from the student’s doctor. The doctor opined that the student needs “a smaller bus with fewer students due to his medical conditions (P-C). The note from the student’s doctor lacks specificity and detail regarding the correlation between the student’s conditions and the need for a smaller bus and fewer children. The form requesting a paraprofessional for the student contains additional information supporting the parent’s request (DOE-4). Specifically, the student’s doctor noted that the student is nonverbal, agitates easily and requires constant monitoring (id.).
Based on the hearing record, I do not find a sufficient basis to award such a travel accommodation. However, I also find that the District failed to demonstrate that the student does not need the requested specialized transportation. The CSE holds the obligation to discuss the student’s needs and make recommendations. The District’s attempt to shift the burden to another agency or department to determine what is necessary to meet the student’s needs is inappropriate. The IEP does not contain any information relating to consideration of different travel accommodations. The hearing record does not demonstrate that the student’s doctor was consulted, nor was the OSH doctor present to give an opinion. Further, even assuming the District was waiting for the OSH doctor to inform their decision, the IEP was completed without such input. Moreover, the OSH doctor did not successfully contact the student’s doctor to ascertain any additional information.
The parent is seeking reimbursement for travel costs of taking the student to and from school for the entire 2022-2023 school year. However, the record does contain any specificity as to when the parent requested the travel accommodations. It appears the parent received a letter from the student’s physician on October 18, 2022, therefore, it can be reasonably assumed that is around the time the parent was informed that she would need medical documentation for her request. As such, the parent is entitled to reimbursement from that date upon submission of detailed invoices or proof of payment.
The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief.32 Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the New York City Department of Education shall reimburse the Parents for the full cost of all transportation costs paid by the parent to transport the student to and from school, upon receipt of proof of payment from October 18, 2022, through the remainder of the 2022-2023 school year. IT IS HEREBY ORDERED that the CSE shall conduct all necessary assessments and reconvene to determine whether the student requires a mini-bus, 1:1 travel paraprofessional, and shorter route.
DATED: SO, ORDERED
11/1/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
11/1/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] A more detailed list of exhibits is attached.
[6] Although not referenced herein, all evidence has been fully reviewed and considered.
[7] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[8] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[9] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[10] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[11] 20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, 458 U.S. at 206-07.
[12] Rowley at 206
[13] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[14] 20 U.S.C. § 1415[f][3][E][i].
[15] Rowley, 458 U.S. at 203.
[16] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[17] Id.
[18] See, Walzczak, supra; Id., Appeal No. 00-005.
[19] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[20] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[21] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[22] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[23] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[24] Endrew F., 137 S.Ct. at 1002.
[25] 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]
[26] Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]
[27] Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]
[28] Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]
[29] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]
[30] "Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf
[31] see Donald B., 117 F.3d at 1375; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997] 32 While parent alleges the student was the subject of bullying on the school bus, nothing in the hearing record supports that conclusion.