Application of the BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability
Hon. Michael A. Cardozo, Corporation Counsel, attorney for petitioner, Steven Goldstein, Esq., of counsel
Petitioner, the Board of Education of the City School District of the City of New York (district), appeals from an impartial hearing officer's decision which ordered that respondent’s son be transported to and from school on a different bus and that he be accompanied on the bus by a paraprofessional at all times The appeal must be sustained.
Initially, I note that respondent has not answered the petition, which was served on March 15, 2004. Notwithstanding respondent’s failure to answer, I am required to examine the entire record (see 34 C.F.R. § 300.510[b][i]) and to make an independent decision (see 20 U.S.C. § 1415[g]) based on the entire record (8 NYCRR 279.12; see Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dep't 2002]).
At the time of the hearing respondent’s son was classified as learning disabled and attended a 12:1 +1 program at Martin Luther King High School in Hastings, Westchester County (Transcript p. 3). The student’s classification is not in dispute. The issue in dispute involves transportation services provided to the student, which, according to the district’s representative at the hearing, are to be provided as part of the student’s individualized education program (IEP) (Transcript p. 8).
On January 22, 2004, the district received a request from respondent for a hearing concerning the provision of transportation services in her son’s IEP as a result of an incident, which allegedly occurred on the bus that was transporting her son home from school (Transcript p. 5). At the hearing, the district representative stated that the hearing request alleged that the student witnessed the bus driver urinating into a cup and disposing of the urine by throwing it out of the bus window (Transcript p. 5). In addition, according to the district representative, respondent alleges that the student was taken off the bus and sent home via public transportation (Transcript p. 5). The trip home took approximately four hours (Transcript p. 5). Respondent claims that after complaining to the district, it took neither her nor her son’s claim seriously, and that it appeared that the “situation did not matter” to the district (Transcript p. 7).
The record reveals that the school performed an investigation consisting of an interview with the bus driver, who denied the incident (Transcript pp. 5, 7). The district representative testified that she spoke with the assistant principal at the child’s school, who reportedly confirmed that the bus driver denied the incident (Transcript p. 5).
During the hearing, respondent testified that the existing transportation arrangement created an “uncomfortable situation” between her son and the bus driver, and requested that the child be placed on a different bus or route (Transcript p. 6). In an attempt to resolve the dispute, the district representative made an off the record phone call to a representative of the district’s Office of Pupil Transportation (OPT) (Transcript pp. 8-9). From this call, the school representative stated on the record that, “there is a possibility that he [OPT Representative] could move one bus [route]. It would mean moving the bus out of its way for 10-15 minutes…” (Transcript p. 9). There was no further evidence submitted by the district in the hearing or any statements in the district’s pleadings, concerning the availability of an alternative bus for the child.
Respondent did not testify at length, and her attempt at cross-examination of petitioner’s representative consisted of one question (Transcript pp. 6-7). Respondent objects to the school district’s handling of the incident (Transcript pp. 5-6), the school’s subsequent failure to adequately inform the parent of the outcome of the investigation into the incident (Transcript p. 7), and that the child was sent home via public transportation, which took four hours (Transcript p. 5). The record indicates a passing partial reference to a “para” (Transcript p. 6), but does not reflect any formal mention of a paraprofessional being requested, or any justification for such request.
The hearing officer rendered her decision on February 12, 2004 in which she determined that the purpose of the hearing was to ensure the safety of the student while in transit. She ordered the district to provide an alternative bus for the child and for the district to include a paraprofessional to accompany the child during the commute to and from school (IHO Decision p. 3).
Petitioner appeals on the ground that the hearing officer lacked sufficient evidence upon which to base her decision. Petitioner requests that the hearing officer's decision be annulled and that the issues be remanded back to the Committee on Special Education (CSE) for determination of appropriate transportation services.
It is well settled that a hearing officer must ensure that there is an adequate record upon which to premise his or her decision and permit meaningful review of the issues (Application of the Bd. of Educ. of the City Sch. Dist. of the City of New York, Appeal No. 03-001; Application of a Child with a Disability, Appeal No. 02-003; Application of a Child with a Disability, Appeal No. 01-087). The Regulations of the Commissioner of Education provide that, “The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination.” (8 NYCRR 200.5[i][ii]).
The hearing record in the instant case is notably sparse. It consists of nine pages of transcript of testimony at the hearing held on February 10, 2004. The record does not contain exhibits, a copy of the hearing request, any educational evaluations on the student, nor a copy of the student’s written IEP. In short, there is nothing in the record that reveals the type of transportation services needed by this student. The record does not indicate whether the student is being transported to a special education program or whether he requires specialized transportation. In addition, there is no evidence that anyone recommended the use of a paraprofessional. The provision of personnel to assist a student in riding in a vehicle may be part of specialized transportation, particularly for students with severe disabilities (see DeLeon v. Susquehanna Community Sch. Dist., 747 F.2d 149 [3rd Cir. 1984]), however, there is insufficient evidence in the record upon which to make a determination of whether the student's unique needs require such a service. Other than the mother’s testimony that the student’s current transportation services would create an “uncomfortable situation,” there is no testimony that a change in such services would be appropriate to meet the student’s needs. The hearing officer ordered the change in transportation services and the addition of a paraprofessional without receiving testimony from any professional knowledgeable about the student and without the benefit of reviewing a single evaluation or report. There is simply no evidence of the appropriateness of such services to address the individual needs of respondent's son. I agree with petitioner that it was improper for the hearing officer to make this determination in the instant case, if for no other reason, because there was no evidence in the record upon which to base this determination. Accordingly, I find that the hearing officer erred by directing the district to modify transportation services in the absence of an adequate record to support that determination.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the hearing officer's decision is hereby annulled; and
IT IS FURTHER ORDERED, unless the parties otherwise agree, that petitioner shall convene a CSE meeting within 30 days from the date of this decision to determine appropriate transportation services for the student; and
IT IS FURTHERED ORDERED, unless the parties otherwise agree, that any new recommendations pertaining to transportation arising from the above ordered CSE meeting be implemented within 45 days from the date of this decision.