06-002

            Petitioner, the New York City Department of Education, appeals from that part of the decision of an impartial hearing officer which ordered petitioner to provide respondent's son with private car service to his tutoring location at Hands of Hope Academy (Hands of Hope) on school days when the temperature at 11:30 a.m. was below 30 degrees Fahrenheit.  The appeal must be sustained.

           At the outset, I must address a procedural issue.  Respondent has not answered the petition, which was served on December 27, 2005.  In addition, respondent has not replied in writing to a January 23, 2006 letter from the Office of State Review (OSR) advising her that OSR has not received an answer to the petition.  Notwithstanding respondent's failure to answer in accordance with 8 NYCRR 279.5, I am required to examine the entire record (see 34 C.F.R. § 300.510[b][2][i]) and to make an independent decision (see 20 U.S.C. § 1415[g]) based solely on the record (8 NYCRR 279.12; see Arlington Cent. Sch. Dist. v. State Review Officer, 293 A.D.2d 671 [2d Dep't 2002]; Application of the Bd. of Educ., Appeal No. 04-017; Application of a Child with a Disability, Appeal No. 03-078).

            Respondent's son was 16 years old and in the tenth grade at petitioner's Tottenville High School (Tottenville) at the commencement of the impartial hearing in November 2005 (Dist. Ex. 4 at pp. 1, 18; Tr. pp. 10, 71).  The student attends Tottenville from 8:15 a.m. until about 11:15 a.m. daily (Tr. pp. 16, 20, 33; see also Dist. Ex. 7 at p. 3).  The student finishes his school day by going to Hands of Hope where he receives two hours of private tutoring (Tr. pp. 16, 20-21, 33; see also Dist. Ex. 7 at pp. 3-4).

            The student is classified as a student with a learning disability (LD) (Dist. Ex. 4 at p. 1).  He has identified deficits in reading decoding and comprehension, written language, and math (see Dist. Ex. 4 at p. 3).  Standardized tests administered to the student in December 2004 yielded scores below the 0.1 percentile on subtests assessing passage comprehension, letter-word identification and spelling (id.). Test results indicated that the student's instructional levels in reading and language arts ranged from beginning first grade to end of second grade (id.).  The student's scores on subtests assessing word attack skills and writing were at the first percentile (id.).  Math subtest scores were in the second percentile for applied problems and the 0.2 percentile for calculation, indicating an instructional level in math at beginning third grade (id.).  Oral comprehension was identified as an area of strength for the student, with a score at the 54th percentile suggesting performance at the mid-twelfth grade level (id.).  The student's speech and language progress report, included as part of his October 20, 2005 individualized education program (IEP) noted that the student had asthma and seasonal and dust allergies, for which he used an inhaler as needed (Dist. Ex. 4 at p. 1; see also Parent Ex. A).  The October 20, 2005 IEP noted that the student's academic progress had been impeded by poor attendance, distractibility, and oppositional behavior (Dist. Ex. 4 at p. 4).  The student's eligibility for special education programs and services and classification as a student with LD (see 8 NYCRR 200.1[zz][6]) are not in dispute in this appeal.  

            Respondent previously requested an impartial hearing on September 16, 2005, and that matter was heard on October 7, 2005 (Dist. Ex. 7 at p. 3).  As a result, petitioner and respondent reached an agreement with respect to the student's educational program (see Dist. Ex. 7).  According to the impartial hearing officer's order that memorialized that agreement (Dist. Ex. 7), the student would attend Tottenville from 8:00 a.m. until 11:15 a.m. each day, where he would receive instruction in core subjects (Dist. Ex. 7 at p. 3).  The student would receive two hours a day of tutoring at a separate location (Dist. Ex. 7 at pp. 3-4), which was an increase from the five hours per week the Committee on Special Education (CSE) had recommended for the student on his previous IEP (Tr. p. 15).  The order provided that respondent could choose the outside provider and that petitioner would issue a "P-3 voucher" for ten hours a week of tutoring services (Dist. Ex. 7 at p. 4).  The order also provided that petitioner would provide a transit pass to the student (id.).  While noting "anticipated difficulties with transportation" and public transportation delays on Staten Island, the impartial hearing officer directed respondent to request an impartial hearing should transportation become problematic in the future (Dist. Ex. 7 at p. 4). 

           The student's educational instruction at Tottenville was provided in special classes (see Dist. Ex. 4 at pp. 1, 13).  Petitioner also provided respondent's son with individual speech-language therapy three times a week for 30 minutes (Dist. Ex. 4 at p. 15).

           Petitioner's impartial hearing office received a second impartial hearing request from respondent on October 18, 2005 (see Dist. Ex. 1).  Respondent's impartial hearing request stated that petitioner would not transport her son to his tutor.  The request also stated that the student was required to take a number of buses in order to reach the location of his tutor, that the student's travel time was over an hour, that he would not be eating lunch, and that he had difficulty with reading and, if he missed or got on the wrong bus, he would lose time from his education. 

           The impartial hearing that is the subject of this appeal was held on November 8, 2005.  At the impartial hearing, respondent and the student's aunt, who acted as respondent's representative, explained that the student's tutor was no longer tutoring in the neighborhood and that he had opened Hands of Hope, which was on the other side of Staten Island from Tottenville and that this had resulted in an increase in the distance to the student's tutoring location (Tr. pp. 17, 23, 36-37; see also Dist. Ex. 6).  Petitioner did not dispute an estimated total travel time of "close to two hours" (Tr. pp. 63-64).

           Respondent testified that she experienced 40-minute bus delays during "a couple of trial runs," and that therefore she was driving her son to Hands of Hope and missing work as a result (Tr. pp. 31, 32-33, 58).  Respondent testified that the student used two and sometimes three buses to return home (Tr. p. 34; see also Tr. p. 51).  She expressed hesitation to change the tutoring time from 12 noon until 2 p.m. to 2 p.m. until 4 p.m. because "of the neighborhood" (Tr. p. 33).  Respondent and the student's aunt also testified that they were concerned that the student's reading level would present problems with his use of the bus and respondent cited an example from the previous year when the bus broke down and the student needed assistance from the bus driver in getting home (Tr. pp. 33, 64-65, 71-73). 

           At the impartial hearing, respondent provided a letter from her son's doctor which stated that being in cold weather for a long period of time could trigger the student's asthma and stating that it was necessary for him to receive transportation from Tottenville to Hands of Hope in order to decrease the student's chance of an asthma attack (Tr. pp. 4, 52; see Parent Ex. A).  Respondent testified that the student had continued with his current tutor because the tutor had increased the student's reading ability and respondent had not been able to find anyone else (Tr. pp. 35, 37-38, 39; see also Tr. pp. 69, 92). Respondent submitted a statement from a private car service indicating that the one-way cost of transporting the student to Hands of Hope was $25.00 (Parent Ex. B; Tr. pp. 4, 17, 51-52).  Respondent did not request the use of a car service for the student's return trip (Tr. p. 51) because he took the bus home. 

          During the impartial hearing, respondent did not rule out consideration of a different tutor (Tr. p. 39) and indicated willingness for her son to receive tutoring at Tottenville if it could be delivered there  (Tr. pp. 47, 66-67, 83).  The student's aunt indicated receptiveness for tutoring services provided at a closer location if an appropriate person were available to tutor the student (Tr. pp. 45-46, 80-81).  Petitioner's district representative for impartial hearings (district representative) indicated that she knew of other tutors, but did not know of their availability (Tr. pp. 15, 28, 30, 46-47, 82-83).  She also indicated that petitioner was willing to work with respondent in finding an appropriate tutor who was located closer (Tr. pp. 46-47, 82-83, 88).

         The impartial hearing officer rendered a decision on November 21, 2005.  The impartial hearing officer concluded that the evidence did not demonstrate that respondent's son would be deprived of an appropriate education without being provided with private transportation daily to tutoring at Hands of Hope (IHO Decision, p. 3).  The impartial hearing officer found that the difficulty with respect to length of the student's trip arose because the shortened school day resulted in a trip to the tutor at midday when bus service was apparently less frequent and the selection of a tutor located on the other side of Staten Island (id.).  However, based on the statement provided by the student's physician, the impartial hearing officer found that it would be appropriate for the student to have private transportation to his tutoring "only on sub-freezing days" (IHO Decision, p. 4).  Therefore, the impartial hearing officer ordered petitioner to reimburse respondent a maximum of $25.00 for private car service per trip to bring the student to Hands of Hope on those school days when the temperature at 11:30 a.m. was below 30 degrees Fahrenheit  (id.).

         Petitioner appeals from the impartial hearing officer's order which directed petitioner to provide respondent's son with private transportation to Hands of Hope on days in which the temperature was below 30 degrees, asserting that the impartial hearing officer's determination was arbitrary. Petitioner asserts that the student does not require specialized transportation due to his disability, that the transportation concern is a result of the student's tutor relocating geographically to a greater distance away from the student, that petitioner will assist respondent in locating a tutor closer to his school, and that the medical evidence does not suggest that the student requires private transportation, only that he requires transportation.  Petitioner also asserts that the impartial hearing officer's order is unenforceable because of the uncertain nature of determining when respondent's obligation to provide private car service arises: the obligation is dependent on the temperature of the atmosphere, apparently somewhere on Staten Island at 11:30 a.m. on school days.  Petitioner points out that it is not clear where on Staten Island the temperature is to be taken, by whom the temperature is to be determined, and by what means it is to be ascertained.

         Since neither party challenges the balance of the impartial hearing officer's decision, that portion of the decision is final and not subject to review (34 C.F.R. § 300.510 [a]; Application of the Bd. of Educ., Appeal No. 03-001).

         A purpose behind the Individuals with Disabilities Education Act [IDEA], (20 U.S.C. §§ 1400 - 1482)¹ is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005].  A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).²  A FAPE is offered to a student, when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by the board of education's CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

         The IDEA specifically identifies transportation, including 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 (20 U.S.C. § 1401[26]; 34 C.F.R. § 300.24[a], [b][15]). Transportation includes transport to and from school, between schools, as well as travel in and around schools. It includes specialized equipment (e.g. special or adapted buses, lifts and ramps) if required to provide specialized transportation (34 C.F.R. § 300.24 [b][15]). Specialized transportation must be included on a child's IEP if required to assist the child to benefit from special education (34 C.F.R. Part 300, Appendix A, Section IV, Question 33). When making determinations about a student's transportation needs, CSE's are encouraged to include input from transportation personnel and persons with expertise in that area (34 C.F.R. Part 300, Appendix A, Section IV, Questions 30 & 33). The nature of the specialized transportation required for a particular child depends upon the child's unique needs, and it must be provided in the LRE (34 C.F.R. §§ 300.306, 300.533). Safety procedures for transporting students are primarily determined by state law and local policy (see OSEP Policy Letter to McKaig, 211 IDELR 161 [1980]).

          In addition, New York State law defines special education as "specially designed instruction... and transportation 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" (Educ. Law §§ 4401[1], 4402[4][a]).

          Although the student's asthma is noted on his October 20, 2005 IEP, the IEP does not recommend specialized transportation.  Moreover, the medical statement respondent submitted at the hearing did not set forth that respondent's son required a private car service in order to attend his tutoring program (see Parent Ex. A).  Nor did that medical statement contain sufficient facts to support the impartial hearing officer's conclusion that such transportation should be provided to Hands of Hope when the temperature was less than 30 degrees Fahrenheit.  I agree with the impartial hearing officer that the student was not denied a FAPE. I also agree with petitioner's assertion that the impartial hearing officer's decision is unduly vague and I find that the order is not enforceable with any predictability and therefore improperly creates uncertain rights and responsibilities between the parties.  Having so found, it is not necessary that I consider petitioner's remaining arguments.

          Given the information in the record that petitioner will assist respondent in locating a tutor nearby and respondent's willingness to cooperate in selecting such an arrangement, it appears that alternate arrangements can be made to access tutoring services.  Not only would such a resolution eliminate the travel time and out-of-doors exposure required by the location of the student's current tutor, but it would also meet the need expressed by respondent that she be able to return to work rather than miss work in order to drive her son to school.  Further, an educational program which provided the student with appropriate tutoring services closer to Tottenville could allow the rescheduling of the student's program so that he would be able to have a scheduled lunch, receive physical education instruction, and participate in desired extracurricular activities, something that both respondent and petitioner felt was missing from the student's current educational program (see Tr. pp. 45, 64, 81, 88, 89-90).  In light of these facts, respondent should provide respondent with information about available appropriate tutoring services for respondent's son at a location closer than Hands of Hope, including any who would be available to provide such services at Tottenville.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent indicated;

IT IS FURTHER ORDERED that, unless the parties otherwise agree, petitioner shall within 14 calendar days from the date of this decision provide respondent with a list of persons available to provide appropriate tutoring services to her son, including any who may be able to do so at Tottenville; and

IT IS FURTHER ORDERED that, unless the parties otherwise agree, petitioner shall provide respondent reasonable assistance in locating appropriate tutoring services, if needed, and shall convene a CSE meeting within 30 calendar days from the date of this decision to review the appropriateness of the tutoring services.