06-033

            Petitioner, the Board of Education of the Port Washington Union Free School District, appeals from a decision of an impartial hearing officer which ordered it to reimburse respondents for transportation expenses incurred in transporting their daughter home from school after participation in extracurricular activities during the 2005-06 school year. The appeal must be sustained.

            The central issue in this matter is whether petitioner should have provided late transportation services for the child after her participation in extracurricular activities at Mill Neck Manor School for the Deaf (Mill Neck).  At the impartial hearing, respondents asserted that petitioner was obligated to do so to afford the child a) a free appropriate public education (FAPE) and b) an equal opportunity for participation in nonacademic and extracurricular activities.

            At the commencement of the impartial hearing in November 2005, the child was 10 years old and attending fourth grade at the Mill Neck (Dist. Ex. 2 at p. 1).  Mill Neck is a New York State supported day school for children with deafness (Nov. 23, 2005 Tr. p. 59).  In November 2005 there were 120 students enrolled in the school, ranging in age from seven weeks to 21 years old (id.).  Mill Neck uses a total communication approach, meaning that it uses sign language and voicing at the same time (Nov. 23, 2005 Tr. p. 62).  The child's disability is characterized as a profound bilateral sensori-neural hearing loss (Dist. Ex. 4 at p. 1). According to her mother she received a cochlear implant in her right ear (Nov. 23, 2005 Tr. p. 39) nd wears a Nucleus 24 RCS processor (Dist. Ex. 4 at p. 1). The child's eligibility for special education programs and classification as a student with deafness are not in dispute in this appeal (see 8 NYCRR 200.1[zz][2]; Dist. Ex. 2 at p. 1.

          The child was diagnosed with bilateral profound hearing loss in November 2001 and "aided the following month" (Dist. Ex. 7 at p. 1). The child began attending kindergarten at the Nassau Board of Cooperative Education Services (BOCES) Program for Hearing and Vision Services in January 2002 (Dist. Exs. 4 at p. 1; 7 at p. 1), which at that time was an oral-only environment (Nov. 23, 2005 Tr. pp. 41-42). The child's mother testified that although her daughter now hears, the child's speech level is that of a very young child and "not really very intelligible" (Nov. 23, 2005 Tr. p. 39).  She described her daughter as having difficulty expressing her feelings or impressions at length because of her speech impairment, as well as having difficulty with understanding abstract concepts. The Committee on Special Education (CSE) Chairperson, who was familiar with the child, testified that respondents daughter demonstrated communicative and social intent and that the child initiated social contact, communication contact, and had a desire to learn (Nov. 16, 2005 Tr. pp. 13-15).  Multiple evaluation reports indicated that the child was friendly and sociable (Dist. Exs. 3, 4, 5, 6).

          A psychological evaluation report dated November 4, 2004, when the child was attending BOCES, indicated that administration of the Wechsler Intelligence Scale for Children-Fourth Edition (WISC-IV) yielded results indicating that the child was functioning within the low average range of intelligence (Dist Ex. 7). Administration of the Beery-Buktenica Test of Visual-Motor Integration, a measure of eye-hand coordination, yielded results in the normal range (Dist. Ex. 7 at p. 3).   A communication evaluation report that considered December 10, 2004 test results obtained by BOCES indicated that the child exhibited delays in speech production, audition, speech-reading, and receptive and expressive language skills (Dist. Ex. 6 at p. 1).

          Petitioner's CSE convened on March 8, 2005 (Nov. 23, 2005 Tr. p. 43).  At the March 8, 2005 meeting, respondent requested that the CSE change the child's placement to Mill Neck  (id.). She made the request, in part, due to her concerns about the BOCES program's transition to a total communication environment, where sign language was used only as a support mechanism; the high turnover rate of speech pathologists; and a lack of after school activities for the child (Nov. 23, 2005 Tr. pp. 38, 41-42).  On June 21, 2005 petitioner's CSE approved evaluation of the child at Mill Neck and recommended that she attend its summer 2005 program (Nov. 23, 2005 Tr. pp. 43-44). 

         July 2005 intake documents from Mill Neck (Dist. Exs. 3, 5) and August 2005 educational and communication evaluation reports (Dist. Exs. 4, 6) describe respondents' child as doing well socially.  Specifically, intake staffing minutes noted that "socially [the child] is doing well and fits well with her current class," and that the student "has done very well socially with other students in the classroom and appears happy with the classroom placement" (Dist. Ex. 3).  The intake social history report noted that the child was "a sociable youngster who plays a lot with her sisters and a girl across the street," and she "plays easily with other children and does not get frustrated if there are communication difficulties" (Dist. Ex. 5 at p. 2).  The communication evaluation report indicated that the child was friendly, cooperative, and highly motivated (Dist. Ex. 6 at p. 1).  The educational evaluation report described the child as "very polite, friendly, happy, and personable" and included recommendations for reading, writing, and math instruction (Dist. Ex. 4 at pp. 1, 8-9). 

         As a result of the Mill Neck evaluation, the child was offered a placement at Mill Neck for the 2005-06 school year (Nov. 23, 2005 Tr. p. 44).  On August 18, 2005, the CSE convened to develop the child's individualized education program (IEP) for the 2005-06 school year (Dist. Ex. 2).  Prior to the meeting, the child's mother was provided with a copy of a proposed IEP developed by Mill Neck (Nov. 23, 2005 Tr. pp. 44-45; Parent Ex. D).  The CSE reviewed the proposed IEP (Parent Ex. D) "line by line" (Nov. 16, 2005 Tr. p. 40).

         The child's mother testified that at the August 18, 2005 CSE meeting she asked questions regarding the child's educational goals and transportation (Nov. 23, 2005 Tr. p. 45).  She requested a late bus as a related service so the child could participate in after school activities at Mill Neck and she discussed the extracurricular activities offered at Mill Neck (Dist. Ex. 2 at p. 4; Nov. 23, 2005 Tr. p. 45).  The CSE Chairperson testified that extracurricular activities were not part of the IEP recommendation (Nov. 16, 2005 Tr. pp. 22-27).  He further testified that he understood the activities to have included "cooking or computer, Girl Scout troop and swimming" programming (Nov. 16, 2005 Tr. p. 26), and noted that the IEP did not reflect a social need for after-school programming (Nov. 16, 2005 Tr. p. 23).  The resultant August 2005 IEP states that '"due to contingency budget, the school district is not offering clubs, public and private, sports and late busing at student elementary level to all district students, both general and special education.  The transportation office has indicated that no busing is available for extended day club programs for special education students as it is not available for typical peers. [The] IEP was written with transportation for the academic school day as per [the Individuals with Disabilities in Education Act] IDEA" (Dist. Ex. 2 at pp. 4-5). The IEP also noted that [u]pdated testing indicates that [the] student continues to demonstrate growth and progress in academics, speech and language skills, as well as social development as reported in teacher progress reports" (Dist. Ex. 2 at pp. 4).

         The August 18, 2005 CSE recommended the child's classification as a student with deafness and out-of-district placement at Mill Neck, with transportation (Dist. Ex. 2 at p. 1).  The CSE found the child to be eligible for extended year services in order to prevent substantial regression (id.). The CSE recommended that the child be placed in a non-integrated class with a student-to-staff ratio of 8-1+1, five days per week, for a period of six hours each day (id.).  Individual speech and language therapy was recommended five times per week for 30-minute sessions in the therapist's office during the regular school year, and at a location arranged by the parent during the extended school year (id.). The CSE did not recommend any program modifications, assistive technology, or support for school personnel (Dist. Ex. 2 at pp. 1-2).  Recommended testing accommodations included: use of a total communication approach consisting of oral and signed communication when directions are read and explained and questions are read; simplification of language in directions; provision of cues; and extended time (2.0) (Dist. Ex. 2 at p. 2). The 2005-06 IEP included a statement that the child would not participate in general education programs, except for physical education, and that she required special instruction in an environment with a smaller student-to-teacher ratio in order to progress in achieving the learning standards (id.).  Respondents received a copy of the August 2005 IEP in early September 2005 (Dist. Ex. 1 at p. 3).  The August 2005 IEP referred to the mother's request for "extended day busing", but did not provide late bus service to the child (Dist. Exs. 1 at p. 3, 2 at pp. 4-10). 

          On October 14, 2005, the child's mother filed a due process complaint, asserting that during the August 2005 annual review, she had requested an IEP goal to improve her daughter's self-esteem and emotional health through the use of peer interaction in activities  (Dist. Ex. 1 at p. 3).  The child's mother indicated she had been informed that Mill Neck offered after school programs for 20 weeks during the school year, and she requested that petitioner provide her daughter with late bus service (id.). The mother alleged that the fact that petitioner was subject to a contingency budget was an improper basis for the denial of late busing for her daughter (id.).  She contended that, as a publicly placed student in a private out-of-district school, her daughter was entitled to any transportation necessary to participate in activities she otherwise would have been entitled to receive, had she attended an in-district school (Dist. Ex. 1 at p. 4).  The mother sought the addition of a goal to the child's IEP, stating that the child would "interact with peers in activities to improve self esteem and emotional health" with an objective which would enable the child to attend activities offered by Mill Neck that coincided with her interests (id.).  The mother requested that petitioner provide the child with late bus service on the days the child participated in after-school activities at Mill Neck, or in the alternative, that petitioner reimburse respondents for expenses they incurred for private transportation services to bring their daughter home on those days (id.).

         An impartial hearing convened on November 16, 2005 and concluded on November 23, 2005, after two days of hearings.  By decision dated February 23, 2006, the impartial hearing officer found that petitioner's decision to deny late bus service to the child was "inappropriate" (IHO Decision, p. 7).  The impartial hearing officer also rejected petitioner's argument that it had offered the child the same opportunity to participate in after-school activities as it offered other children concluding that the child's needs differed from the needs of most children in the district (id.).  He added that there was no testimony that the child could participate in after-school programs designed for deaf children in the district (id.).  As a consequence of placing the child at a school located outside of the district, the impartial hearing officer determined that at the conclusion of the after-school programs, the child was not in a position to walk home or avail herself of local alternatives, such as carpools (IHO Decision, pp. 7-8).  As such, he concluded that the child did not have meaningful access to extracurricular activities (IHO Decision, p. 8).

          The impartial hearing officer noted that, according to the record, the child's deafness caused her to have a difficult time socializing with others with whom she could not communicate (IHO Decision, p. 7).  In addition, the impartial hearing officer found that the after-school programs at issue were provided on the premises of Mill Neck and the child's teacher was one of the instructors in the after-school program.  He also referred to the testimony of the assistant superintendent for Mill Neck, who stated that the after-school program was a necessity for the child.  The impartial hearing officer also stated that although the record showed that all of the witnesses agreed that the child was a happy child and that she was receiving educational benefits in her regular day program, no one testified that the child would not benefit from participating in extracurricular activities (id.).

           The impartial hearing officer denied petitioner's application for dismissal of respondents' due process complaint based on the impartial hearing officer's lack of subject matter jurisdiction, citing respondents' claim that their daughter was denied a FAPE and denied an equal opportunity to participate in after-school programs as children without a disability (IHO Decision, p. 8).  The impartial hearing officer directed petitioner to reimburse respondents for all reasonable expenditures in providing the child with transportation home from Mill Neck for the 2005-06 school year.

            On appeal, petitioner asserts that: 1) the impartial hearing officer's decision should be annulled due to the impartial hearing officer's failure to make a determination as to the appropriateness of the child's IEP, or, in the alternative, the August 2005 IEP was appropriate based upon the impartial hearing officer's silence on this issue; 2) the IEP generated for the child at the August 2005 CSE meeting offered the child a FAPE; 3) respondents' request for additional social and emotional goals is unnecessary in order to offer the child a FAPE; 4) the child does not require late bus transportation services; 5) the impartial hearing officer impermissibly shifted the burden to petitioner in determining whether the child was entitled to late bus transportation as a non-IEP service; 6) respondents, as the party bringing the impartial hearing, had the burden of demonstrating the child's entitlement to non-IEP services; 7) respondents failed to submit any testimony that any of petitioner's extracurricular programs would be inappropriate for the child; 8) respondent further failed to submit any testimony that the denial of after-school transportation, which is uniform to all of petitioner's students, amounts to a denial of equal access for the child; and 9) the impartial hearing officer failed to apply the appropriate standard in ruling that "no one testified that [the child] would not benefit from participating in extracurricular activities" and that there was "no testimony that the student could participate in after school programs designed for deaf children".

           Respondents assert that: 1) petitioner's CSE denied respondents' request for a continuation of the August 18, 2005 CSE meeting, and improperly determined that the child did not require a goal, objective, or services to address her peer interaction and emotional health; 2) petitioner's CSE refused to examine the child's individual needs with respect to respondents' request for her participation in after-school activities at Mill Neck and unilaterally denied her late bus transportation because of budgetary constraints and transportation policy; 3) in order for the child to be provided with a FAPE, her educational program must include her participation in Mill Neck's after-school program; 4) the provision of transportation is a related service, necessary for the child to benefit from her special education; 5) because the child's placement is at an out-of-district location, the denial of a "late pick up" effectively precluded the child from participating in the after-school program, and denied her the equal opportunity afforded to district students who were provided with late transportation by the petitioner.

            A purpose behind the IDEA (20 U.S.C. §§ 1400 - 1482)¹ is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Schaffer, 126 S. Ct. 528).  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 board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]).

           A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its 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 [1982]).  While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]).  A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).  In evaluating the substantive program developed by the CSE, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the student to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002] [quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998][citation and internal quotation omitted]).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]).  The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; seeGrim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak, 142 F.3d at 132). The student's recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

         The Regulations of the Commissioner of Education provide that a CSE must consider the communication needs of the student, and in the case of a student who is deaf or hard of hearing, consider the student's language and communication needs, opportunities for direct communications with peers and professional personnel in the student’s language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the student’s language and communication mode (8 NYCRR 200.4[d][3][iv]).

           The IDEA defines "related services" as including such transportation as may be required to assist a child with a disability to benefit from special education (20 U.S.C. § 1401[22]).  Transportation includes transport to and from school, and between schools; as well as travel in and around school buildings; and specialized equipment if required to provide specialized transportation (34 C.F.R. § 300.24 [b][15]). 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).  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]).

          Federal and state regulations require a board of education to "… take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities" (34 CFR 300.306 [a]; see 8 NYCRR 200.2 [b][1]).

          I concur with petitioner's assertion that the impartial hearing officer erred in not making a determination whether the IEP for the 2005-06 school year offered the child a FAPE.  I also concur with petitioner's assertion that petitioner did offer a FAPE to the child for the 2005-06 school year.

          The record shows that petitioner's CSE discussed the issue of after-school activities at the August 18, 2005 CSE meeting (Nov. 16, 2005 Tr. pp. 30, 40-41, 44, 48; Dist. Ex. 2 at pp. 4-5).  During the impartial hearing, the CSE Chairperson testified that the August 2005 CSE did not suggest or document a need for an extended school day (Nov. 16, 2005 Tr. pp. 40-41).  She stated that respondents requested extracurricular activities that were "not part of" the academic, psychological, or social-emotional evaluations and were not IEP driven (id.).  The CSE Chairperson testified that the Mill Neck representative stated that that the extracurricular activities were not based on goals and objectives (Nov. 16, 2005 Tr. pp. 41-42).

          Petitioner's school psychologist, who has been a member of the child's CSE team since 2001, testified that the child's program was adequate to meet her needs (Nov. 23, 2005 Tr. pp. 14, 15).  The school psychologist opined that, based on her meetings with and observations of the child, respondent's daughter had made progress in social and speech skills (Nov. 23, 2005 Tr. p. 16).  She concluded that it was important for all children to participate in social activities, whether after school or on weekends, in order to foster social relationships and skills, learn new skills and increase self-confidence (Nov. 23, 2005 Tr. p. 32).  Petitioner's school psychologist opined that these social activities did not have to be located at the school site (id.).

          Mill Neck's assistant superintendent testified that Mill Neck recommends "late bus for 5:00 p.m. pickup (extended school activities)" for children of the child's age and functioning level (Nov. 23, 2005 Tr. p. 70).  She explained that Mill Neck always makes this recommendation with the hope and expectation that the child will be able to participate in school activities (Nov. 23, 2005 Tr. p. 71).  The assistant superintendent stated that she had concerns about respondent's daughter, stemming from the child's prior placement (id.), continual changes in her life (Nov. 23, 2005 Tr. p. 83) and isolation (id.).  She testified that Mill Neck wanted the child to feel welcome and comfortable and that participation in extended school activities would be an excellent way for her to become involved in the entire school experience (Nov. 23, 2005 Tr. pp. 71, 83).  Although the assistant superintendent stated that "it is just an extension of the school day, and for her it is a necessity" (Nov. 23, 2005 Tr. p. 83), she also testified that Mill Neck would not be inappropriate without the after-school component (Nov. 23, 2005 Tr. p. 91).  The child would still be able to "participate in" Mill Neck without having an extended day program (Nov. 23, 2005 Tr. p. 92).  The assistant superintendent stated that without the after- school component the Mill Neck program would probably not be as fulfilling and enriched a program, but would "still meet the letter of the law" (Nov. 23, 2005 Tr. pp. 91-92).

          During the impartial hearing, the child's mother described her daughter's social history as including such characteristics as getting along well with others, being helpful, and rarely becoming angry (Nov. 23, 2005 Tr. p. 58).  She stated that her daughter continued to be a very well behaved, respectful and accommodating girl (id.).  The child's mother testified that she agreed with the social development statements on the IEP describing her daughter's levels of abilities and needs (Nov. 23, 2005 Tr. pp. 54-55; Dist. Ex. 2 at p. 3).  She stated that her daughter was very happy at Mill Neck (Nov. 23, 2005 Tr. p. 58).

          The child's academic, social, physical, and management needs as stated on the August 2005 IEP (Dist. Ex. 2 at pp. 3-4) directly reflect the evaluations conducted at Mill Neck (Dist. Exs. 4, 5, 6).  Goals and objectives appropriately address the child's needs and reflect Mill Neck's recommendations for reading, writing, math (Dist. Ex. 2 at pp. 3-5; 4 at pp. 8-9), and communication (Dist. Ex. 6). Descriptions of the child's social needs in the August 2005 IEP (Dist. Ex. 2) are consistent with information in reports of evaluations conducted by Mill Neck staff, and are also consistent with testimony by petitioner's school psychologist (Nov. 23, 2005 Tr. pp. 13-14), and the Mill Neck assistant superintendent (Nov. 23, 2005 Tr. pp. 91-92).  I find that the IEP which resulted from the August 18, 2005 CSE meeting appropriately afforded the child educational benefit.  I also find that the IEP was appropriate to met her needs without the child participating in the Mill Neck extracurricular activities and that therefore, late transportation was not required as a related service.  I note that the petitioner would have been required to provide or reimburse respondents for the late day transportation costs had the IEP reflected, or the record demonstrated, that participation in extracurricular activities at Mill Neck was a necessary component of the child's substantive program.  The record also shows that petitioner acknowledged that it would have to provide late day transportation if the child's special education needs, as identified on an IEP, required such transportation (Nov. 16, 2005 Tr. p. 132).

         Also, I find that the child was not denied an equal opportunity for participation in nonacademic and extracurricular services.  Respondents' daughter received transportation to Mill Neck in the morning and transportation back home from Mill Neck at the end of the regular school day.  The record shows that respondent's child was the only student from petitioner's district attending Mill Neck during the 2005-06 school year (Nov. 16, 2005 Tr. p. 103).  The record reveals that petitioner eliminated extracurricular late bus service District-wide (Nov. 16, 2005 Tr. pp. 59-60, 84, 103, 131; Dist. Ex. 2 at pp. 4-5).  Additionally, district sponsored after-school activities were also eliminated at the elementary school level for all students (Nov. 16, 2005 Tr. p. 121).  Had respondents' child been attending public school within the district, she would have had the same opportunities as her non-disabled peers to access district sponsored after-school programs.  She, along with her disabled and non-disabled peers, would have had no opportunity to participate in district sponsored nonacademic and extracurricular services because the after-school activities were eliminated for all district students at the elementary school level.  The impartial hearing officer relied on a prior SRO decision, Application of a Child with a Disability, Appeal No. 93-23, in support of his conclusion that respondents' daughter was denied an equal opportunity to participate in after-school activities.  However, Application of a Child with a Disability, Appeal No.93-23 is factually distinguishable from the instant case.  In that decision, unlike the determination herein, an SRO found that the evidence did not demonstrate that the child's social development needs were being met or that the child's educational program was appropriate. Also, the SRO determined that in terms of meaningful access to extracurricular activities, there "[was] a significant difference between the child's situation and that of other children" because the child could not be returned to the district's high school in time to participate in after-school activities and because at the end of the extracurricular activities at the private school, the child was not in a similar position as other students to access transportation home. In the instant case, as previously discussed, there was no significant difference between respondents' daughter's situation and that of other district elementary school children; no child had access to district sponsored after-school programs because no district sponsored after-school activities existed at petitioner's elementary schools.³

          I have considered petitioner's and respondents' remaining contentions and I find no need to address them in light of my determination herein.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the impartial hearing officer's decision is hereby annulled to the extent that it awarded late bus transportation costs for the 2005-06 school year to respondents.