NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
[Redacted] CENTRAL SCHOOL DISTRICT
In the Matter of the Application of
[Redacted]., a child with a Disability, by her parents, [Redacted]., [Redacted]., for a Due Process Impartial Hearing,
Petitioners,
-and-
[Redacted] Central Free Schools
Respondent.
FINDINGS OF FACT AND DECISION
Date of Birth: [Redacted]
NYS CASE Number: 553850
Dates of Hearing: October 12, 2021
October 20, 2021
October 28, 2021
November 3, 2021
November 9, 2021
November 17 2021
November 29, 2021
December 16, 2021
December 22, 2021
Record Close Date: February 14, 2022 Hearing Officer: Linda Agoston, Esq.
Linda Agoston
210 Clinton Ave., # 3E
Brooklyn, NY 11205
(718) 972-4655
ALL APPEARANCES VIA VIDEO OR TELECONFERENCE
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 12, 2021
[Redacted]
Advocate
Parents
[Redacted].
Parent
[Redacted]
Assistant Superintendent
District
[Redacted]
Special Education Teacher at [Redacted]
District
[Redacted]
Attorney
District
[Redacted]
Direct Teacher
District
[Redacted]
Special Education Teacher, Bilingual Educational Evaluator
District
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 20, 2021
[Redacted]
Advocate
Parents
[Redacted]
Assistant Superintendent
District
[Redacted]
Special Education Administrator
District
[Redacted]
Attorney
District
[Redacted]
Coordinator of Health Services
District
[Redacted]
Registered Nurse
District
[Redacted]
Speech & Language Pathologist
District
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 28, 2021
[Redacted]
Advocate
Parents
[Redacted]
Assistant Superintendent
District
[Redacted]
Attorney
District
[Redacted]
Coordinator of Health Services
District
[Redacted]
Speech & Language Pathologist
District
[Redacted]
Occupational Therapist
[Redacted]
Physical Therapist
District
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2021
[Redacted]
Advocate
Parents
[Redacted]
Assistant Superintendent
District
[Redacted]
Special Ed. Administrator
District
[Redacted]
Chairperson of the CSE
District
[Redacted]
Attorney
District
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 9, 2021
[Redacted]
Advocate
Parents
[Redacted]
Mother
[Redacted]
Assistant Superintendent
District
[Redacted]
Special Ed. Administrator
District
[Redacted]
Attorney
District
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 17, 2021
[Redacted]
Advocate
Parents
[Redacted]
BOCES Special Educator
Parents
[Redacted]
BOCES School Principal
Parents
[Redacted]
Licensed Practical Nurse
Parents
[Redacted]
Assistant Superintendent
District
[Redacted]
Special Ed. Administrator
District
[Redacted]
Attorney
District
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 29, 2021
[Redacted]
Advocate
Parents
[Redacted]
Speech &Language Pathologist
Parents
[Redacted]
Physical Therapist Assistant
Parents
[Redacted]
Substitute Physical Therapist
Parents
[Redacted]
M.D.
Parents
[Redacted]
Assistant Superintendent
District
[Redacted]
Attorney
District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 16, 2021
[Redacted]
Advocate
Parents
[Redacted]
Supervisor of Case Management & nonpublic school services
District
[Redacted]
Assistant Superintendent
District
[Redacted]
Attorney
District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 22, 2021
[Redacted]
Advocate
Parents
[Redacted]
Certified Nurse Practitioner
Parents
[Redacted]
Supervisor of Case Management & Nonpublic School Services
District
[Redacted]
Assistant Superintendent
District
[Redacted]
Attorney
District The matter of [Redacted] (hereinafter student [REDACTED]) came on for hearing before me on October 12, 2021. Hearings were held on October 12, 2021, October 20, 2021, October 28, 2021, November 3, 2021, November 9, 2021, November 17, 2021, November 29, 2021, December 16, 2021, and December 22, 2021. On July 9, 2021, I was appointed as the Hearing Officer (Exh. II). On July 30, 2021, I scheduled the Pre-hearing Conference ("PHC") for August 18, 2021 and confirmed that no pendency hearing was necessary as the pendency placement was recorded in the Agreement on Placement Pending the Outcome of the Due Process Proceeding dated July 30, 2021(Exh. III) and again, at the hearing (T.22). The hearing was convened at the request of the parents through an advocate by letter dated July 5, 2021 (Exh. I). On August 3, 2021, the District responded to the Due Process Complaint (Exh. IV). At the PHC on August 18, 2021, the parties moved to extend the compliance date (Exh. V). During the course of the hearing the parties moved to extend the compliance dates and I granted the requests for extensions of the compliance dates (Exhs. V-VIII; T.244;749;1822-1823). Another PHC was held on October 4, 2021, to test the video software technology and to confirm the hearing dates and the witnesses and evidence. During the PHC on October 4, 2021, and throughout the hearing the District objected to the inability of the parents' advocate to produce her evidence and list of witnesses at least five business days before the hearing on October 12, 2021, as required by Title 8 NYCRR § 200.5(j)(3) and continued to object to the parents' advocate' failures to timely obtain the evidence and list witnesses (T.10;13;251;294;486). The parents' advocate was allowed to present her evidence and list of witnesses as soon as she was able to obtain the evidence and secure the participation of the witnesses in light of the medical complexity of this case. Further, I note that OSEP allows a hearing officer total discretion when a party has not met the five-day rule and I find that exclusion of relevant evidence for a curable procedural non-compliance was not appropriate.
The hearing was requested by the parents of [REDACTED] to challenge the June 21, 2021 review and recommendation of the Committee on Special Education ("CSE") to classify [REDACTED], residing in the territorial jurisdiction of [Redacted] Central School District ("District"), and to challenge the Individualized Education Program ("IEP") for the 2021-2022 school year and to request the following relief: (1) an order finding that the District failed to provide a free and appropriate public education ("FAPE") during the 2021-2022 school year from September 5, 2021 through June 30, 2022 (T.617) and (2) an order to fund the placement at medically fragile special class ("MFSC") at the [Redacted] County Board of Cooperative Educational Services Division of Student Services, ("[Redacted]") and (3) an order for transportation in a mini-bus with a nurse. The Advocate withdrew (1) the request for an Interim Order on Pendency at [REDACTED] in a 12:1:4 MFSC class with related services of individual ("1:1") speech and language therapy ("SLT") 3 times per week for 30 minutes per session; 1:1 physical therapy ("PT") 4 times per week for 30 minutes per session and 1:1 occupational therapy ("OT") 3 times per week for 30 minutes per session and withdrew the request for 12-month or extended year educational services ("ESY") as [REDACTED] attended camp for the summer of 2021 (Exh. I at 2;T.23;616-617), and withdraw the request for special education transportation in a mini-wheelchair bus with the support of a nurse on the bus (T.28-31;616-618;1755). The parties agreed that if FAPE were provided for the 2021-2022 school year, I would cease my inquiry. However, the parties further agreed that if FAPE were not provided, then I would make findings of fact and conclusions of law as to whether to continue to order the District to fund [REDACTED]'s pendency placement at [REDACTED] for the conclusion of the 2021-2022 school year as part of the broad equable powers of a hearing officer (T.255;1755).
The District denied that it failed to provide special education transportation to accommodate [REDACTED] in a wheelchair with a nurse as the District provided the requested bus transportation in the pendency agreement and noted that [REDACTED] permitted the 1:1 [Redacted] nurse in the school and denied every allegation in the due process complaint (Exh. IV at 1;4). The District denied that it failed to provide a FAPE in the 2021-2022 school year in the least restrictive environment ("LRE") (T.17-19). The District asserted that while [REDACTED] was present in the District's waiting room, she was never allowed to be placed into the 12:1:4 MFSC during the 2020-2021 school year (T. 71). The District further asserted that while the parents' advocate filed a due process complaint for the 2020-2021 school year, the parents' advocate withdrew her December 9, 2020 due process complaint on June 24, 2021, and that shortly after filing her due process complaint, in December 2020, the District offered [REDACTED] a pendency placement in [REDACTED] to ensure that [REDACTED] received an educational program and related services during the 2020-2021 school year. The District maintained that even though the parents accepted the [REDACTED] placement they did not place [REDACTED] in [REDACTED] until April 2021 (Exh. IV at 2). The District presented its case on October 12, 2021, October 20, 2021, October 28, 2021, November 3, 2021. The parents presented their case on November 9, 2021, November 17, 2021, November 29, 2021 and December 22, 2021. The District presented its rebuttal case on December 16, 2021 and December 22, 2021. The District submitted its closing brief on February 3, 2022. The parents' advocate submitted her brief on February 7, 2022. The parties were directed to submit reply briefs on February 10, 2022, or a letter to decline to submit a reply brief and the District submitted its letter on February 10, 2022 to decline to submit a reply brief. The record close date was February 14, 2022, and the decision due date was February 28, 2022.
BACKGROUND
[REDACTED] is [REDACTED] years old and currently attending [REDACTED] per the pendency agreement (Exh. III). She was born on [REDACTED]. She currently resides with her [Redacted] in [REDACTED], NY within the jurisdiction of the District in [Redacted] ("[REDACTED]") outside the family home (Exh. 11 at 1;T.896-897). The parties stipulated that [REDACTED] was diagnosed with [Redacted]("[REDACTED]") syndrome a complex [Redacted] (T.993), as a form of [Redacted] that caused [REDACTED] to have [Redacted] and head-drop [Redacted]s (T. 210;880-881;1775) and that [REDACTED] required a MFSC placement as she required medical services, and was severely developmentally delayed, non-verbal and traveled by wheelchair.
For the 2020-2021 year to be implemented on July 2, 2020 to June 25, 2020, the IEP dated February 28, 2020, the District's CSE classified [REDACTED] as a Preschool Student with a Disability and recommended that she would be placed in a special class with a student to staff ratio of 8:1:2 for 5 hours daily with related services of 1:1 SLT 3 times per week for 30 minutes in the special class or therapy room; 1:1 OT 3 times per week for 30 minutes per session in the special class or therapy room; 1:1 PT 3 times per week for 30 minutes per session in the special class or therapy room (Exh. J at 2).
The IEP noted that [REDACTED]'s native language was [REDACTED] and special alerts section of the IEP indicated that [REDACTED] was [Redacted] ("[Redacted]") fed and wore bilateral [Redacted] (a type of [Redacted] orthotic (T.638;653) and required daily nursing. The parent reported that [REDACTED] made minimal gains in the past months and presented with significant delays across all developmental domains secondary to the diagnosis of [REDACTED] syndrome and the teams recommended extended school year services to prevent substantial regression during the months of July and August (Exh. J at 2).
Under the academic achievement, functional performance and learning characteristics section, the IEP indicated that [REDACTED]'s performance was significantly impacted by her frequent [Redacted]s and that [REDACTED] while wearing orthotics had begun to take steps while supported by a walker although she wore a [Redacted], she primarily ate thought her mouth, but received hydration through the [Redacted] and that she required full assistance with all daily living skills ("DLS") and was able to sit up as her diaper was changed (Exh. J at 4). The IEP indicated that the name of the preschool was [Redacted] ("[Redacted]") and that from July 2, 202 to August 13, 2020, that [REDACTED] would be placed in a special class with a student to staff ratio of 6:1:2 for 5 hours daily (Exh. J at 12).
For the 2020-2021 year to be implemented on September 9, 2020 to June 25, 2021, in the IEP dated February 28, 2020, the District’s CSE classified [REDACTED] with multiple disabilities and recommended that she be placed in a special class with a student to staff ratio of 12:1:4 for 6 hours and 15 minutes daily with related services of 1:1 SLT 3 times per week for 30 minutes in the special class or therapy room; 1:1 OT 3 times per week for 30 minutes per session in the special class or therapy room; 1:1 PT 4 times per week for 30 minutes per session in the special class or therapy room and support services of consultation with a skilled nurse 2 times daily in the special class for 15 minutes; an 1:1 aide as needed throughout the day in the special class; OT consultation provided within the classroom 3 times per week for 30 minutes; PT consultation provided within the classroom 4 times per week for 30 minutes; SLT consultation provided within the classroom 5 times per week (Exh. I at 18).
The IEP indicated that [REDACTED] was not eligible for ESY and needed special education transportation with nursing services, small bus, door to door transportation, a bus with an attendant and accommodation for a wheelchair (Exh. I at 9-10). Under the academic achievement, functional performance and learning characteristics section, the IEP indicated that [REDACTED]'s performance was significantly impacted by her frequent [Redacted]s and that [REDACTED] required significant assistance for play, eating and art and while wearing orthotics had begun to take steps (Exh. I at 2). The IEP further indicated that [REDACTED] had a [Redacted] and received minimal nutrition through it, as she primarily ate through her mouth. (Id.).
The IEP indicated parent concerns regarding [REDACTED]'s global cognitive and language delays that were secondary to her severe [Redacted] disorder and that [REDACTED] used non-verbal means of communication as well as verbal approximations to request (Exh. I at 3). The IEP indicated in the speech section that [REDACTED] had made progress focusing on the speaker with communicative intent and scanning and improved in eye contact when some on stays "hi" to her (Id.). The IEP indicated in the physical development section that [REDACTED] presented with significant global delays secondary to a diagnosis of [Redacted] and that her medication was constantly adjusted and that she received hydration through a [Redacted], wore [Redacted] and had 24-hours nursing care. (Exh. I at 4). The IEP indicated that [REDACTED]'s progress towards goals was slow and inconsistent and dependent on the intensity of her [Redacted] (Id.). The IEP indicated in the physical development needs that concerned the parents’ section that the parent reported that the [Redacted]s were frequent and not currently under control and will have [Redacted] during OT and PT sessions (Exh. I at 5).
By letter dated September 18, 2020, the Parent alerted to whomever it concerned that [REDACTED] was residing with her [Redacted] in [Redacted], NY and that the [Redacted]was "in full charge of [[REDACTED]]'s personal, medical, educational etc needs her parent-legal guardian" (Exh. 11 at 1). The Parent further noted the [Redacted] was "given authority to sign any &all consent forms with regard to any medical procedures, medical tests, anesthesia etc." and that the [Redacted] had "our permission to take [[REDACTED]] on any domestic international trip" (Exh. 11 at 2).
On September 22, 2020, a letter from [Redacted], MD, the [REDACTED]'s doctor, indicated that her medical team included her neurologist, gastroenterologist and pediatrician (Exh. 10 at 2). Dr. [Redacted] reported that [REDACTED] resided with her [Redacted] in [REDACTED], NY and that [REDACTED] was a special needs patient with a complex medical condition, which included global delays, a progressive [Redacted] disorder and was [Redacted] dependent (Exh. 10 at 1). Dr. [Redacted] recommended 1:1 nursing care from her home nursing staff because of her complex medical needs (Id.). Dr. [Redacted] indicated that the [Redacted] disorder was "well controlled" and that if [REDACTED] were in a new environment, then she would have an increase in her [Redacted]s (Id.). Dr. [Redacted] noted that [REDACTED] had a "[Redacted]"(Id.). Dr. [Redacted] listed the [Redacted] feeding requirement of 8 oz of water to be given at 10 am, 12 pm, and 2 pm (Id.). Dr. [Redacted] listed under meals that [REDACTED] should be feed from the side of her mouth at home at 7:00 am 3-4 oz. of cereal mixed with banana and apple sauce at 11:00 am, she should be fed a slice of bread with 2 mashed eggs and at 2 pm, she should be fed bread with cream ch[Redacted] blended with vegetables and noted medication was given at home (Exh. 10 at 2). Dr. [Redacted] noted that [REDACTED] did not require medication at school and was able to receive vaccinations as her [Redacted] were "relatively well controlled" (Id.).
On April 29, 2021, an Observation of [REDACTED] was conducted by the District's Health Coordinator, at 12:45 pm, in the classroom as [REDACTED] was being changed. She noted that after changing [REDACTED], the aide placed [REDACTED] on the floor as the children were participating in a music activity and at 1:05 pm, [REDACTED] was placed in her wheelchair, but the nurse returned from lunch and sat in a chair behind [REDACTED] approximately 3 feet away. She observed that [REDACTED] participated in a sensory activity using shaving cream and that the nurse wiped the cream from [REDACTED]'s face and looked at her phone for several minutes and remained in her chair for the remainder of the observation (Exh. 9 at 1).
On May 25, 2021, an Observation of [REDACTED] was conducted at 11:55 am by the District's Health Coordinator, when [REDACTED] was in her wheelchair and working with an aide and a different private 1:1 nurse was sitting directly behind her approximately 3 feet away and the aide changed [REDACTED] and placed her on a mat while the nurse sat in her chair until the nurse gave [REDACTED] a [Redacted] of water and then the nurse returned to her seat while the aide brought [REDACTED] to the changing area and the observation was concluded at 12:45 pm. The Coordinator reported that the medication orders were not located at [REDACTED] and that [REDACTED] was driven to school in a car without her nurse and waited in the health office at [REDACTED] for approximately 5 minutes waiting for her 1:1 nurse to arrive (Exh. 9 at 1).
On June 11, 2021, an OT Annual Review Report was conducted on [REDACTED] at the [REDACTED] 12:1:4 special class and the reporter noted that [REDACTED] had received skilled nursing, SLT, OT, PT as related services and received OT 3 times per week. The District OT evaluator noted that [REDACTED]'s private nurse and classroom teacher were present for the updated OT testing (Exh. 5 at 1). The OT evaluator observed that [REDACTED] was seated in a [Redacted] chair and was strapped into the pelvic harness and that the classroom teacher removed the tray from the chair so that [REDACTED] was able to sit at the table and once seated at the table that [REDACTED] began to have a [Redacted] and that the nurse immediately placed a towel in front of [REDACTED] on the table and that [REDACTED]'s head was down to the towel and "seemed to be smiling throughout her [Redacted]" (Exh. 5 at 1). The OT evaluator noted that [REDACTED] did not interact with toys and accepted hand over hand support to hold a marker and make marks on a page. (Exh. 5 at 2). The OT evaluator used the Learning Accomplishment Profile Diagnosis-3rd Edition ("LAPD-3") to access manipulation and writing and that [REDACTED] received a Z Score of -2.33 in both tests and that [REDACTED] was unable to independently turn pages of a board book or use both hand (Id.).
On June 11, 2021, a PT Annual Review Report was conducted on [REDACTED] at the [REDACTED] 12:1:4 special class by the District's PT provider who noted that [REDACTED] was diagnosed with [REDACTED] syndrome and had received skilled nursing, SLT, OT, PT as related services and received PT 4 times per week. The PT provider noted that [REDACTED]'s private nurse and classroom teacher were present for the updated PT testing when [REDACTED] was in a [Redacted] chair and strapped in using the pelvic harness and was happy and smiling while seated in the chair (Exh. 6 at 1). The PT evaluator noted that [REDACTED] was transferred from the [Redacted] chair to the mat on the floor and that [REDACTED] was unable to assist in any manner in the transfer and was able to roll over and that she preferred to roll over to her right side and when positioned in a quadruped position was able to lift her head for 30 seconds and according to her classroom teacher she had outgrown her orthotics so [REDACTED] was unable to be tested when she was standing (Id.)
On June 11, 2021, a Speech Language Triennial Evaluation was conducted on [REDACTED] at the [REDACTED] 12:1:4 special class by the District's Bilingual SLT pathologist, who noted that [REDACTED] was brought into the testing room in a [Redacted] chair with a tray and that [REDACTED] was non-verbal (Exh. 7 at 1). The Pathologist assessed [REDACTED]'s receptive language skills using the Receptive One-Word Picture Vocabulary Test-Fourth Edition ("ROWPVT-4) and informally using the LAPD-3 as well as information from her current teacher and speech therapist and informal observation as [REDACTED] was nonverbal and had no official communication system so not formal assessment of expressive language to given (Exh. 7 at 20. The Pathologist noted that per [REDACTED]'s teacher that [REDACTED] used a big Mac at times to communicate single messages such as "eat" or "give me" and that [REDACTED]'s eye gaze was primarily used for communication. The Pathologist used the ROWPVT-4 to see if [REDACTED] would page at the accurate picture and noted that [REDACTED] was unable to identify most words and was unable to demonstrate intentional gaze at other words, besides balloon, when requested (Exh. 7 at 2). The LAPD-3 indicated that [REDACTED] was able to demonstrate the ability to look at a single item, a car and was able to gaze at a toy and the teacher to obtain a toy (Exh. 7 at 3).
On June 14, 2021, a Bilingual Psychological Re-Evaluation was conducted on [REDACTED], when she was 5 years old by the District's Bilingual School Psychologist, who noted that [REDACTED] lived with her [Redacted], who had multiple [Redacted] who also lived with her (Exh. 3 at 1). The District School Psychologist reviewed [REDACTED]'s educational history and noted that [REDACTED] was placed in [REDACTED] in a self-contained class and received SLT, OT and PT and had a private nurse and presented with significant global delays secondary to a diagnosis of [Redacted] and that [REDACTED] received adjusted medication as her [Redacted] were not under control and that [REDACTED] received hydration via a [Redacted] and 24-hour nursing care (Exh. 3 at 2).
The School Psychologist observed that [REDACTED] was unable to interact with the special education evaluator and began to cry but seemed relaxed and happy when given a toy (Id.). The School Psychologist noted that at some point during the evaluation [REDACTED] started to stare into space and her teacher indicated that she was starting to have a [Redacted] and that her nurse told her that [REDACTED] giggled when she had a [Redacted] (Id.). The School Psychologist attempted to assess [REDACTED]'s cognitive functioning on the Stanford Binet-5 but was unsuccessful as [REDACTED] was unable to respond to simple directions such as "point to" and did not respond to verbally to questions or point to pictures receptively in the Verbal Scale or non-Verbal Scale.
The School Psychologist noted that [REDACTED] was unable to label some items in a picture book as she cried and when give blocks to stack, she threw the blocks on the floor (Exh. 3 at 4). The School Psychologist reported [REDACTED]'s adaptive functioning as assessed by her [REDACTED] teacher, who used the Adaptive Behavior Assessment System – Third Edition ("ABAS-3") a behavior rating scale that yielded a composite score and noted that [REDACTED] obtained a score of 52 in the Extremely Low range and as high as 0.1% of the students of the same age and her Communication score was 55 in the Extremely Low range as high as 0.1% of the students of the same age and her score in reading, writing and mathematics and she scored 57 in the Extremely Low range and she scored in the Social domain of Leisure and Social skills in the Extremely Low range as high as 0.2 % of students of the same age and her score in Self-Care skills was 49 in the Extremely Low range within the lowest 0.1 % of scores of students of the same age (Exh. 3 at 5). The School Psychologist noted that she was familiar with the language and culture of [REDACTED] and administered the evaluation in [REDACTED] and English and that [REDACTED] did not indicate a preference for [REDACTED] over English and responded equally to both languages.
On June 14, 2021, a Bilingual Educational Re-Evaluation was conducted on [REDACTED] at the age of 5 years and 11 months at the [REDACTED] 12:1:4 special class of 10 students and the evaluator noted that [REDACTED]'s parentally provided nurse was with [REDACTED] during the school day and that a 1:1 aide was recommended for safety and mobility. The District Bilingual Educational Evaluator was a NYS certified evaluator proficient in English and [REDACTED] who observed that [REDACTED] was brought to the testing room by her nurse in a large stroller and remained in the stroller during the testing session and that present in the testing room were the School Psychologist, the [REDACTED] classroom teacher and nurse and that [REDACTED] made intermittent eye contact and was able to tolerate some hand over hand contact by the examiner (Exh. 4 at 1).
The Bilingual Educational Evaluator noted that the "student's academic and behavior functioning did not benefit from translation of test items and direction throughout the evaluation" (Exh. 4 at 2). The LAPD-3 indicated that [REDACTED]'s cognitive matching and counting was below average and not at an 18-month developmental age as [REDACTED] was unable to place a circle, square, triangle and rectangle into a foam board or pick up a block and cup to match an item (Exh. 4 at 3).
On June 17, 2021, a Feeding Observation was conducted on [REDACTED] when she was attending [REDACTED] by the District's Speech and Language Pathologist, who noted that as per the last IEP, [REDACTED] did not tolerate liquids and was [Redacted] for hydration and presented with [REDACTED] (Exh. 8 at 1). The observer noted that [REDACTED] was able to vocalize to gain attention and made direct eye contact and was accompanied by her private nurse and her classroom teacher and was in good spirits and finished her snack in a reasonable amount of time (Id.). The observer performed an oral peripheral exam and indicated that [REDACTED] presented with facial symmetry within normal limits and was missing several teeth with wide spacing and was averse to facial touch and did not drool (Id.). The observer described a snack given to [REDACTED] by her nurse and her classroom teacher of cottage cheese mixed with pieces of bread and tomato and that [REDACTED] oriented to the spoon and looked at her food and opened actively for the spoon to be put into her mouth and attempted to close her lips around the spoon, but required the food to be scraped off into her mouth to get a successful mouthful. The observer indicated that it was reported to her that the [REDACTED] Speech and Language pathologist was working on getting an active chew using a chewy tube, but this skill was not emerged or established and recommended intervention to improve the quality and safety of her oral intake. (Exh. 8 at 2).
For the 2021-2022 year on June 21, 2021, the District's CSE classified [REDACTED] with multiple disabilities and recommended that on September 10, 2021, for 1st grade she be placed in a 12-month program in [REDACTED] in a special class with a 12:1:4 staffing ratio daily for 6 hours and 15 minutes in the class and receive related services of 1:1 SLT 3 times per week for 30 minutes per session in the special class or therapy room; 1:1 OT 2 times per week for 30 minutes per session in the special class or therapy room; 1:1 PT once per week for 30 minutes in the special class or therapy room; 1:1 skilled nursing services 3 times daily for 15 minutes in the classroom; 1:1 PT twice per week for 45 minutes per session (Exh. 2 at 10). The comments section indicated that the meeting was held virtually due to NYS and [REDACTED] COVID-19 regulations and the reason for the meeting was an annual review and reevaluation (Exh. 2 at 1) and that [REDACTED] presented with significant global development delays and was diagnosed with [REDACTED] syndrome and was recommended to attend the MFSC with a student to staff ratio of 12:1:4 and since April 2021, [REDACTED] was attending the MFSP 12:1:4 program at [REDACTED] as a pendency placement and her private nurse attended school with [REDACTED] daily (Exh. 2 at 2).
The IEP listed the test results of the ABAS-III and noted the composite scores as 0.1 or <0.1 percent, the LAPD-3 score for fine manipulation of -2.33 (Z-Score) and the score for fine motor writing of -2.33 (Z-score) and the ROWPV score for receptive vocabulary indicated a severe delay (Exh. 2 at 3-4).
The IEP noted [REDACTED]'s basic cognition and DLS per the educational evaluation in the present levels of [REDACTED] performance and learning characteristics (PLEPS) section that [REDACTED] did not engage with familiar toys and presented with whining or screeching noises to display displeasure when she did not want to continue with presented toys or materials (Exh. 2 at 4). Under the speech and language section, the IEP indicated that [REDACTED] was non-verbal and could not clearly demonstrate rejection when making a choice by looking at a picture and that [REDACTED] was currently working with the SLT provider to use her eye gaze with a devise to communicate (Exh. 2 at 4-5).
The IEP noted in PLEPS section that the ROWPVT-4 was attempted to assess her receptive skills, but she was only able to glance at a balloon when requested in a field of 4 items and she was unable to demonstrate intentional gaze at any other words. (Exh. 2 at 5). The study skills section of the IEP indicated that [REDACTED]'s then current [REDACTED] classroom teacher reviewed the goals and reported that [REDACTED] was able to vocalize when she was hungry or wanted to be repositioned and was aware of her peers and was able to look toward them (Id.). The student's strengths section indicated that [REDACTED] enjoyed being with her classmates and smiled and made eye contact with other people. The parent's concerns with [REDACTED]'s academic, development and functional needs indicated that [REDACTED] required small student to teacher ratio and needed to improve her non-verbal means of communication and needed to increase her skills to follow 1-step instructions, to respond to yes/no questions and match familiar items and pictures and the [Redacted] shared her concern that if SLT and feeding therapy were fused, then [REDACTED] would not be able to gain the skills needed to eat soft food (Id.).
The IEP listed management needs of songs and activities to learn information and prompting and sensory stimulation and needed to be fed in a quiet and dark area and required close supervision to safely navigate the school environment (Exh 2 at 7). The management needs further indicated classroom staff support to ensure that she had no toys front of her in case of a [Redacted] and to support her in her environment and 1:1 support to develop gross motor skills, to navigate her environment and assist at meals (Id.). The management needs indicated that [REDACTED] was dependent on all transfers to be positioned into the [Redacted] prone stander and would benefit from a gait trainer device to assist in pre-walking activities (Id.).
The IEP did not indicate that [REDACTED] required positive behavior interventions or a behavior intervention plan ("BIP") to address behaviors that impeded her learning or the learning of her classmates and that she required an assistive technological ("AT") device to assist in communication at school, but not at home (Exh. 2 at 8).
The IEP contained 13 goals: 2 study skills goals to follow 1-step instructions and to identify a named object by pointing to it 1 out of 2 times; 2 SLT goals to use non-verbal means of communication such as pictures to request or reject during therapy and to display comprehension of at least 5 pictures or icons presented to her; 2 social emotional goals to initiate solitary play when placed in close proximity of toys and to accurately answer "yes/no" questions in indicate a need or want; 5 motor goals to make a purposeful mark on a page; to incorporate both hands in a sensory motor activity with verbal and tactile cues to assist; to walk 30 feet using a [Redacted]; to lift each arm to full extension when on hands and knees for 5 repetitions; to grasp a 1 inch cube and place it in a basket and a single DLS goal to demonstrate emergence of up down motion on chewy tube to begin to establish a chewing pattern (Exh. 2 at 9).
The IEP indicated supports for school personnel on behalf [REDACTED] of an 1:1 aide daily for 6 hours and 15 minutes; feeding therapy consultation in the classroom once weekly for 30 minutes; team consultation weekly for 30 minutes; PT to [REDACTED] in the class to carry over into the classroom once weekly for 2 hours and 30 minutes and skills nursing services as needed daily; AT consultation to ensure that [REDACTED] had access to AT once weekly for 1 hour; OT consultation in the classroom weekly for 1 hour and SLT consultation in the classroom weekly for 3 hours and 45 minutes (Exh. 2 at 10-11).
The IEP indicated that [REDACTED] required ESY services or and ESY program (Exh. 2 at 11) and special education transportation of a small bus or vehicle, door to door transportation, bus attendant and accommodation for a wheelchair (Exh. 2 at 13).
The Prior Written Notice ("PWN") dated June 21, 2021, indicated that the CSE recommended the 12:1: 4 MFSC with skilled nursing services; SLT, OT, PT, feeding therapy consultation, AT consultation and a 1:1 aide daily for safely and management needs and ESY to prevent regression (Exh 1 at 1). The PWN indicated that the CSE refused the parents' request to allow [REDACTED]'s to continue in the [REDACTED] [REDACTED] 12:1:4 MFSC and maintained the 12:1:4 MFSC in [REDACTED]'s home district in [REDACTED] was the LRE and also refused to allow [REDACTED]'s [Redacted] nurse to accompany [REDACTED] daily in the 12:1:4 MFSC at [REDACTED] as there were nurses in [REDACTED] walking around the room providing skilled nursing services (Exh. 1 at 2-3).
On July 6, 2021, in her due process complaint, the parents' advocate wrote to the Chairperson to allege that the June 21, 2021, IEP was the same program as the February 28, 2020 IEP and was procedurally and substantively flawed and the resulting placement at the 12:1:4 MFSC at [REDACTED] in not appropriate (Exh. I at 3).
The parents' advocate asserted that the CSE never considered the parents' request to a continue the pendency placement at the [REDACTED] 12:1:4 MFSC from spring 2021 to date as the IEP recommended the same program that the parents rejected in the 2020-2021 school year and that [REDACTED] was "shoehorned" into the same rejected program (Id.). The parents' advocate argued that at the onset of the meeting the Chairperson stated this meeting was not to compare the pendency placement at [REDACTED], with the 12:1:4 MFSC at [REDACTED] and then the team changed the PT duration to 45 minutes per session with full knowledge that the [REDACTED] 12:1:4 MFSC was unable to schedule 45-minute sessions (Id.). The parents' advocate stated that the parents did not agree to the change in duration of the PT sessions for 30 minutes to 45 minutes and that the CSE ignored the [Redacted]'s concerns that 12:1:4 MFSC at ESS was not appropriate or safe for [REDACTED] and the parents' advocate noted that both the parent and the grandparent were present along with the [Redacted] and while [REDACTED] resided with the [Redacted], the [Redacted] was not a surrogate as the [Redacted] was [REDACTED] to take care of [REDACTED] (Exh. I at 4). The parents' advocate asserted that to deny for request for 1:1 nursing care through the [Redacted] nurse was not appropriate or safe for [REDACTED]. The parents' advocate alleged that 15 minutes of skilled nursing services in the classroom 3 times per day was not appropriate or safe as [REDACTED] was [Redacted] fed and experienced potentially life threatening [Redacted] and that a 1:1 aide who was not a medical professional would be dangerous to [REDACTED] (Exh. I at 5). The parents' advocate stated that while [REDACTED] had 3 nurses in the building and 1 nurse was present in the 2 classrooms for the 12:1:4 MFSC students that each class could contain up to 12 medically fragile students and that 1 nurse for 12 medically fragile students was dangerous for [REDACTED] who had severe frequent [Redacted] (Id.). The parents' advocate asserted that the related services mandate was changed without discussing the change with the parent, [Redacted] and [REDACTED]'s then-current classroom teacher and that the change was made without the input of [REDACTED]'s then-current related service providers and this change was another example of CSE "shoe horning" the IEP to reflect what was available at the recommended program at [REDACTED] instead of what was appropriate for [REDACTED] (Id.).
THE DISTRICT'S CASE
The District's case was presented in the testimony of the Special Education Teacher of the proposed MFSC at [REDACTED], the Bilingual Educational Evaluator, the Coordinator of Health Services, the NYS licensed registered nurse, the NYS licensed Speech and Language Pathologist, the Feeding Therapist, the NYS licensed Speech Language Pathologist, the NYS licensed Physical Therapist, the NYS licensed and registered OT provider, the Chairperson of CSE and the Supervisor of Case Management & Nonpublic School Services.
The District's attorney asserted that the District met its obligation to provide FAPE in the LRE for the 2021-2022 school year that the IEP addressed all of [REDACTED]'s educational, medical and management needs (T.19;21).
The District Teacher testified that he was a K to 12 generalist and licensed in Elementary Education, Theatre and Performing Arts as well as school building leader and school district leadership and certified by NYS to teach K to 12 in special education and was employed the District for 7 years as the special education teacher for the 12:1:4 MFSC and 20 years in the school center (T.35). He described the MFSC was called medically fragile because the students in the class had health issues that required nursing and other medical supports (T.36). He stated that all the students in his class required SLT, OT, PT, as well as nursing services and that the class used an integrated model with SLT and OT providers who push into the class (Id). He stated that he participated in the June 21, 2021, IEP (Exh. 2) meeting along with [REDACTED]'s parent, grandmother, [Redacted] and advocate and disagreed with allegation in the due process complaint (Exh. I at 6) that the District "shoehorned" [REDACTED] into his class (T.45). He stated that the MFSC program was individualized based on the IEP and the needs of the students and was in the LRE to provide for medically fragile children, who were diagnosed with multiple disabilities (T.45). He stated that there were 2 classrooms for students placed in to the MFSC with a classroom nurse in each class (T.46). He stated that there was a classroom nurse present in his class throughout the school day and there was a nurse in the building in case of emergencies and that the general school nurse's office was located 25 feet from his class and that the other classroom school nurse was located 3 feet from his class (T.47). He stated that the 2 classrooms for the MFSC children was located in the [REDACTED] on the 1st floor and 3 to 4 [REDACTED] special classes for [REDACTED] speaking students, and that while [REDACTED] was generalized in his population, his class was not a bilingual [REDACTED] class (T.52) and that his MFSC was approved by NYS Educational Department and that while he did not possess a master's degree in special education, he gained accreditation and tests to be certified as a special education teacher for K to 12 (T.54). He stated that there were mainstreaming opportunities for his students to include them in the school day in school assemblies and activities and in the monthly awards and in band and indicated the IEP indicated mainstreaming opportunities in school wide events (Exh. 2 at 12; T.48).
On cross he stated that the children were placed in his class based on age and that in his class the age range was 5 to 8 or K to 2nd grade and that the other MFSC contained 6th graders to since 11th graders (T.56) He stated that while he could have 12 students in his class there were only 6 students and these students were the same 6 students that were in his MFSC in the 2020-2021 school year and that only 3 students were ambulatory and that there were 6 different standers in his class based on how mobile the children were and that PT, OT, SLT were provided in his class in an integrated model (T.59). He stated that the entire building of the [REDACTED] was handicapped accessible and that the nurse in his class was responsible for only his class (T.60). He stated that there were 3 students in his class who had [Redacted] and 1 student was [Redacted] fed (Id.). He described the medical needs of the students in his class who have a range of [REDACTED], [REDACTED], and [REDACTED], or [REDACTED], [Redacted] and that because of their [Redacted] his students have variable needs and that because of the [Redacted] they have cognitive delays (T.61). He stated that when the nurse in his class was on break or at lunch, then the other nurse would cover for his class (T.64). He stated that he participated in 5 or 6 IEP meetings in the school year and that he participated in the June 21, 2021, IEP because [REDACTED] was supposed to be placed in his class for the 2020-2021 school year (T.78). He stated that the District assigned her to be in his class for the 2021-2022 school year and she was on his class roster based on her medical needs and her age (T.78;81).
When questioned about the requirements to teach special education he stated that that there was no requirement to obtain a master's degree in special education to be a certified special education teacher and that he had permanent license to teach special education grades K to 12 and that his class was K to 2nd grade and aged 5 to 8 years old and that [REDACTED] would fit into his class as a 6-year old student (T.87). After reviewing the June 21, 2021 IEP attendance page he noted that the [REDACTED] representatives participated in the IEP meeting and that the team came to the determination to place [REDACTED] in his class at end of the meeting (T.90). He stated that he recalled a discussion of whether [REDACTED] required a bilingual [REDACTED] class, but after reading the reports that indicated that [REDACTED] understood English and [REDACTED] and so a bilingual [REDACTED] placement was not necessary (T.92). When questioned about the playground and lunchroom during the 2021-2022 school year he recalled that his students ate in the classroom based on the feeding needs of the students and their need to concentrate with eating without distractions (T.96).
The Bilingual Educational Evaluator employed the District for 24 years and a holder of a certification as a special education teacher and a certified as a bilingual education evaluator with [REDACTED] as a second language and a permanent license as a special education teacher, testified that she held a master's degree in special education and had worked in the District as the special education teacher for 4 years in a self-contained class and then provided resource room services for 10 years and held her current position for the past 10 years (T.115). She stated that she conducted the educational evaluation that was part of the triennial evaluation on [REDACTED] on June 14, 2021, at [REDACTED] with the District's School Psychologist, who also conducted a psychological evaluation on [REDACTED] for an annual review (T.118). She describes [REDACTED] who presented with significant delays and the delays were secondary to the diagnosis of [REDACTED] syndrome (Id.). She described [REDACTED] syndrome as a [Redacted] condition that presented with atypical [Redacted] as a type of staring out into the space and that she observed [REDACTED] had an [Redacted] during her evaluation (T.122). She recalled that the evaluation was conducted over 45 minutes with 20 minutes of direct testing of [REDACTED] and 20 minutes of observing [REDACTED] and 5 minutes talking to the classroom teacher (T.124). She stated that the [REDACTED]'s [Redacted] nurse was with her during the entire evaluation and that prior to testing [REDACTED] she attempted to build a rapport as she asked [REDACTED]'s teacher to bring toys that [REDACTED] liked and described the toys typically give to a 6-month-old of tapping devices and lights and music (Id.). She stated that she spoke to [REDACTED] in English and [REDACTED] not to determine her primary language, but to determine if [REDACTED] could understand and follow directions in either language (T.125). She recalled that [REDACTED] did not respond in either English or [REDACTED] and that [REDACTED] was able to make eye contact and looked at a toy and moaned and the classroom teacher told her that they meant that [REDACTED] wanted that toy and so she spent time playing with [REDACTED] with the toy.
When questioned about the results of the LAPD- 3, she stated that she attempted 2 subtests of cognitive matching and cognitive counting (T.128). She recalled that the counting test required [REDACTED] to place blocks in a cup and the matching test required [REDACTED] to match pictures and she was unable to accomplish any tasks; however, [REDACTED] was able to make eye contact (T.129). She noted that [REDACTED] had an atypical absence [Redacted] that lasted for a few moments or seconds during her evaluation (Exh. 4 at 2); however, the nurse stayed in a seat behind [REDACTED] and did not move (T.131-132). She noted that based on her evaluation (Exh. 4 at 4) that [REDACTED] needed small teacher to student ratio, needed review and repetition of material multiple times to learn and retain information and learn to increase her ability to eye gaze to communicate and recommended that [REDACTED] learn to follow 1-step directions, choose a picture that matched the toy she wanted and should be encouraged to engage with interactive toys (T.136)
When questioned about the results of psychological evaluation (Exh. 3), the Education Evaluator stated that she observed that [REDACTED] had begun to whine and cry and threw items onto the floor, but recalled that School Psychologist was able to engage [REDACTED] in some interactive toys and that [REDACTED] was able to gaze at a preferred toy and once given the toy that [REDACTED] was able to cooperate with the School Psychologist (T.135). She stated that the School Psychologist conducted her evaluation the same way that she did as started with informal materials to develop a rapport and noted that [REDACTED] cooperated with the School Psychologist except to knock some blocks and cups off the table and recalled that [REDACTED] was able to engage in eye contact with the School Psychologist and that the School Psychologist attempted to assess her IQ with the S-B, and noted that [REDACTED] was unable to respond to the verbal section of the S-B and on the non-verbal section that [REDACTED] was unable to choose between a rubber duck and bird and was unable to find a ball hiding underneath a cup and was unable to fit foam shapes. She recalled that the [REDACTED] teacher completed the ABAS to assess [REDACTED]'s adaptive functioning and noted low or weak performance across all domains as [REDACTED] had difficulty taking responsibility for any action except making eye contact (T.160).
When questioned about her conversation with [REDACTED]'s [REDACTED] classroom teacher she recalled that the teacher explained to her [REDACTED] needs and that matched her observation of [REDACTED] as [REDACTED] smiled and giggled and sat nicely in her chair and was able to gaze at classmates and enjoyed sensory activities like kinetic sand and shaving cream and was happy to engage in interactive early learning toys for tactile interaction (T.128). She recalled that the classroom teacher told her that [REDACTED] would not mouth toys but would put her fingers in her mouth and was fed soft foods and required adult support for all her physical needs of toileting, mobility and dressing and that [REDACTED] was a pleasure to have in the class (T.138).
The Educational Evaluator recalled that she attended the IEP meeting on June 21, 2021, as the special education teacher and that the meeting was held on zoom with staff from [REDACTED] and that the school nurse was present as were [REDACTED]'s parents and home caregiver and the District's OT, PT and SLT therapists (T.140). She recalled that the meeting lasted about 2 hours per the notes she composed after the meeting (Exh. 14), and that the team reviewed her evaluation as well as the psychological evaluation and that at the conclusion of the meeting that the chair recommended the 12:1:4 MFSC with a 1:1 aide and related service and an ESY and that recommendation was previously recommended for the start of the 2020-2021 school year (T.143-144;Exh. 14 at 1).
The Educational Evaluator stated that no one advised her to continue to recommend the same program for the 2021-2022 school year as was recommended for the 2020-2021 school year (Id.). She recalled that the PT mandate was changed from the mandate in the 2020-2021 school year as 2 session for 45 minutes per session was recommended by the District's PT evaluator, who recommended the change based on her professional judgment as it took a lot of time to position [REDACTED] in different devices and so a longer PT session would be beneficial (T.145;Exh. 14 at 1). She recalled that the caregiver agreed that 45 minutes would be beneficial (T.146). She recalled that the [REDACTED] staff participated in the IEP meeting and that the [REDACTED] staff agreed with the recommendation (T.147). She stated that she agreed with the recommendation as the 12:1:4 MFSC in [REDACTED] was the LRE and that while the student ratio is 12 students the District never placed more than 8 students in the 12:1:4 class and that there was a full-time nurse in the class and opined that the District had the staff and equipment to meet [REDACTED]'s needs (T.148). She further opined that the fact that [REDACTED] was not a self-contained special education environment did not concern her as she believed that it would be good for [REDACTED] to interact within the general education environment and to have mainstreaming opportunities (T.148). She stated that she wrote the PLEPS (Exh. 2 at 4) and noted that she was unable to quantify the cognition scores based on the LAPD-3 because [REDACTED] performed below the level of an 18-month old and noted she performed 2 standard deviations below (T.153) and that based on the ABAS that [REDACTED] performed to the level of an [REDACTED] old (T.164). She opined that based on her evaluation and the psychological evaluation that [REDACTED] performed in the extremely low range and was a high needs student and agreed with the 12:1:4 MFSC and agreed with the recommended program with related services of PT, OT, SLT, skilled nursing services and feeding therapy and noted that the District's 12:1:4 MFSC was approved by NYS Education Department for students like [REDACTED] as she met the criteria of children with such medical needs that mandated a nurse in the class (T.162).
On cross the Educational Evaluator stated that based on the psychological evaluation that [REDACTED] scored overall in the extremely low range (T.169). She stated that she had worked for the Summit Park District as a classroom teacher for students of multiple disabilities in a self-contained class and that she researched infantile [Redacted]s prior to her evaluation but did not recall if she had ever evaluated students currently in the 12:1:4 MFSP in [REDACTED] (T.172). The Educational Evaluator acknowledged that the [REDACTED] OT and PT providers were not present and acknowledged that a medical doctor was not present at the June 21, 2021 IEP meeting, but recalled that the parent disagreed with the recommendation at the 12:1:4 MFSC at [REDACTED] because she was very happy with her daughter's placement at the 12:1:4 MFSC at [REDACTED] (T.183-184) as the parent wanted her daughter's private nurse to accompany [REDACTED] to school and the 12:1:4 MFSC at [REDACTED] would not allow [REDACTED]'s private nurse to accompany her to school (T.188).
The Coordinator of Health Services for the District testified that she was licensed in NYS in 1969 and then received a master's degree in Nursing and was a holder of CPR, medical-surgical and pediatric certifications (T.196). She stated that as a registered nurse that she was able to do all the necessary skilled nursing care, including assessment and administration of blood and that she was employed as a school nurse since 1985 and was employed by the District in her current position since 1993 (T.195;202). She explained that part of her duties was to evaluate the skilled nursing needs of students in order to ensure that all skilled nursing needs were met and also that she consulted with the nurses on staff and that she was involved in home instruction and special education transportation (T.197). She stated that she was familiar with the MFSC program in [REDACTED] and recalled that there were several students in the MFSC that required [Redacted] feedings and that she oversaw the District's nurses assigned to the MFSC at [REDACTED] (T.198). She recalled that she had participated in hundreds of CSE IEP meetings during her career at the District and that she made recommendations based on her observations of students and reviewing their medical records. (T.199;204). She stated that when she received medical documentation that a child might needed nursing services, she would always conduct an observation prior to the CSE meeting to provide feedback to the CSE team (T.305). She recalled that she observed [REDACTED] during the 2021-2022 school year as a school psychologist had requested that she review [REDACTED]'s medical information in preparation to [REDACTED]'s entrance into the District for the 2021-2022 school year (T.200).
When questioned as to her observation on April 29, 2021, the Health Coordinator stated that she observed [REDACTED] at [REDACTED] for about 60 minutes and that she had observed that there was a 1:1 nurse who sat about 3 feet behind [REDACTED] and that she observed that an aide interacted with [REDACTED] and that the aide took [REDACTED] behind a curtain to change her and that she noted no skilled nursing services performed by the nurse (T.204). She recalled that she that observed [REDACTED] at a different time and again observed that there was a 1:1 nurse who sat behind [REDACTED]; however, she observed that the 1:1 nurse did give [REDACTED] a [REDACTED] of water. (Id.) She clarified that a [Redacted] of water was a procedure to administer water or liquids into a [Redacted] by a large syringe and that [REDACTED] required a nurse to administer a [Redacted] of 8 ounces of water 3 times per day and that to administer a [Redacted] of 8 ounces of water was a procedure that lasted 2 minutes (T.206).
When questioned about [REDACTED]'s [Redacted] disorder, the Health Coordinator referred to the letter from [REDACTED]'s medical doctor, (Exh. 10) dated September 22, 2020, that indicated that [REDACTED] did not require medication in school (T.206). She explained that there were different types of [Redacted]s and that [REDACTED] experienced [Redacted] that made her head drop and had [Redacted]s like pill-rolling or [Redacted]s that involved [REDACTED] staring (T.208) and that it was possible for [REDACTED] to be having a [Redacted], but the [Redacted] was not discernible (T.209). She noted that Dr. [Redacted]'s letter described [REDACTED]'s complex medical condition, which included global delays, a progressive [Redacted] disorder and was [Redacted] dependent (Exh. 10 at 1) and agreed that [REDACTED] required special consideration in school to meet her needs but disagreed that [REDACTED] required 1:1 nursing from her home nursing staff (T.214;311). She stated that Dr. [Redacted]'s letter indicated that [REDACTED]'s [Redacted]s was under control and the nursing need was to enter the number of [Redacted]s in a iPad and opined that as long as there was a nurse in the classroom who was able to observe [REDACTED] that [REDACTED]'s medical needs would be met (T.308). She maintained that nurses were trained to care for many people at once and noted that while she observed [REDACTED] at [REDACTED] twice each time with a different nurse and that neither of nurses for [REDACTED] recorded the number of [Redacted] in an iPad or notepad and that despite Dr. [Redacted]'s indication that [REDACTED] needed private 1:1 nursing care she believed that the District's nursing staff was meet [REDACTED]'s medial needs in the school setting (T.215-216;309).
When questioned about [REDACTED] syndrome, the Health Coordinator stated that based on her research that [REDACTED] syndrome that [REDACTED] experience an absence [Redacted] or a petit mal [Redacted] and that there would not be a significant loss of consciousness as the [Redacted] was fleeting (T.210). She stated that she spoke to [REDACTED]'s [Redacted], who told her that she felt that [REDACTED]'s [Redacted]s was not life threatening (T.211;308). She explained that 1:1 skilled nursing service were required to administer a [Redacted] of water to [REDACTED] for 15 minutes 3 times per day as mandated by the June 21, 2021 (Exh. 2 at 10) and that 3 times of 15-minutes of skilled nursing services as well as the classroom nurse was sufficient to meet [REDACTED]'s medical needs (T.225). She stressed that the District had a Feeding Expert as part of the Speech and Language Department and that the Feeding Expert would be able to train an individual in the MFSC at [REDACTED] to feed soft food to [REDACTED] from the side of her month (T.220) and noted that normally nurses do not feed students, but did provide hydration through a [Redacted] (T.222) and opined that the nurse in the MFSC would be able to respond to and to record [REDACTED]'s [Redacted]s (T. 226-227). She stressed that the classroom nurse would have back-up nurses in cases of a [Redacted] emergency and that [REDACTED] would require medication for a [Redacted] that occurred longer than 10 minutes as there were 2 other nurses in the building if another student as well as [REDACTED] experienced a [Redacted] (T.228). She related that she participated in the June 21, 2021 IEP meeting and agreed with the recommendation of a nurse in the classroom as part of the MFSC program would be able to meet [REDACTED] medical needs safely and agreed that [REDACTED] receive special education transportation with a nurse on the bus and she agreed with the recommendation of a 1:1 aide to assist [REDACTED] at [REDACTED] (T.230-231;303). She further explained that if a 1:1 nurse was required for [REDACTED], then the District would provide a 1:1 nurse and would not allow [REDACTED]'s [Redacted] nurse (T.233).
On cross the Health Coordinator stated that she reviewed [REDACTED]'s medical information contained in the letter (Exh. 10) before her observation at [REDACTED] and that [REDACTED] was not allowed to go to the MFSC at [REDACTED] without her 1:1 nurse as that she was dropped to [REDACTED] without her nurse and was waiting in an office until her 1:1 nurse arrived to enter [REDACTED] (T.265;300-301). She recalled that she participated in an IEP meeting of another child besides [REDACTED] who was placed in the proposed 12:1:4 MFSC at [REDACTED] for the 2021-2022 school year (T.266). She stated after a conversion with the District's nurse that she was aware that another student received a [Redacted] of water in the proposed 12:1:4 MFSC (T.267). She stated that if a student was given written orders from a physician, then she along with the District's nurses would determine whether to place a child in the MFSC and that all the children in the MFSC were medically fragile (T.268) and that she considered the letter (Exh. 10) from Dr. [Redacted] dated September 22, 20220, sufficient to place [REDACTED] in the MFSC at [REDACTED] and no other medical information was required (T.282).
When questioned about the children in the proposed class, the Health Coordinator stated that the children in the proposed MFSC required [Redacted] feedings, [Redacted] feedings, had suctioning if there was excessive fluid or saliva and used a nebulizer and that at least 1 child had [Redacted] (T.271). She acknowledged that she participated in the June 21, 2021 IEP meeting for [REDACTED] and recommended that she be placed in the MFSC without knowing the medical records of the other children in the class (T.272-273). She stated that at her observation on June 14, 2021, she never met [REDACTED] (T.274). She. stated that she observed [REDACTED] twice to prepare for her participation in the June 21, 2021 CSE review (Exh. 2) and that she typically would observe a student twice (T.277).
When questioned about her observation (Exh. 9), the Health Coordinator stated that she recalled that she observed [REDACTED] on April 29, 2021, at 12:45 pm to 1:45 pm, and that she observed that the teacher's aide fed [REDACTED] a snack (T.280). She stated that she observed [REDACTED] on May 25, 2021, and noted that the nurse was seated behind [REDACTED] and that she spoke with the [REDACTED] classroom teacher (T.281). She stated that she was aware of the type of [Redacted]s that [REDACTED] experience included head dropping and pill-rolling (T.290). She stated that a feeding therapist participated in the June 21, 2021, IEP meeting (T.293) and acknowledged that while Dr. [Redacted] recommended 1:1 nursing to carefully monitor [Redacted], manage meals and [Redacted] feedings that no District staff member contacted Dr. [Redacted] about her recommendation (T.293).
On redirect the Health Coordinator explained that while she could not recall the CSE reviews for the 8 children in the MFSC 12:1:4 class for the 2021-2022 school year, prior to the reviews she had spoken to the nurses and based on her conversations she was informed that the nursing needs of the other children in the MFSC that with the staff of 4 aides and the 1:1 aide assigned to [REDACTED] with the nurse in the classroom she maintained that all [REDACTED]'s nursing needs would be met by the nurse as aides would be able to change diapers (T.313). She explained that she observed that a [REDACTED] aide had fed [REDACTED] during her observation and not the nurse as indicated in Dr. [Redacted]'s letter (Exh. 10 at 1) that ordered feedings by the nurse at 7 am, 11 am and 2 pm (T.321). She stated that she did not speak to [REDACTED]'s nurse when she observed that [REDACTED] had a [Redacted] and that she knew the [Redacted]s were not life threatening based on her conversation with the [Redacted], Dr. [Redacted]'s letter and the descriptions of the [REDACTED]'s [Redacted]s as petit mal and absence [Redacted]s (T.327;328). She stated that she recalled that the [REDACTED] Principal, who participated in the June 21, 2021, meeting, opined that [REDACTED] did not need a 1:1 nurse (T.230) and that there was no danger that [REDACTED]'s [Redacted] that was not visible to the lay person would cause damage to [REDACTED] (T.338). She stated that [REDACTED] did not have any interruption to her breathing while she had a [Redacted] or could fall and not be in a safe situation because the [Redacted]s were absence or petit mal (T.342). She stated that neither the parents nor the [Redacted] provided an updated medical document (T.346).
On re-cross the Health Coordinator acknowledged that a child's medical needs could change between September 2020 to June 2021 (T.339) and acknowledged that she had never worked with a student diagnosed with [REDACTED] (T.340). She stated that the [REDACTED] diagnosis could potentially result in life threatening [Redacted]s (T.346).
The NYS classroom nurse, licensed registered nurse employed by the District as the nurse in the MFSC in [REDACTED] for the past 18 months, testified that there were currently 6 children enrolled in [REDACTED]'s proposed MFSC for the 2020-2021 and 2021-2022 school years, but that the maximum number of children was capped at 8 students for the 12:1:4 MFSC class (T.351;358). She stated that she administered [Redacted] feeding and assessed [Redacted] activity in the class but maintained that in her 18 months in the MFSC there were no medical emergencies (T.352). She explained that when the children in the proposed MFSC require skilled nursing services there was a classroom nurse, but noted that teaching assistants and aides provided the feedings, changing diapers and daily care and noted that several children required feedings from the staff several times per day and that while some students need suctioning or a nebulizer no student needed medication (T.355;357). She stated that 4 of the 6 students had [Redacted] in the 2021-2022 school year on a daily basis that were either [Redacted] (T.356;361). She defined an absence [Redacted] as staring into space; however, there was medication of any student had a life threatening [Redacted] and maintained that there was medication if needed (T.365).
When questioned as the Dr. [Redacted]'s letter (Exh. 10 at 1), District classroom nurse stated that [REDACTED]'s medical needs were similar to the students in the 2021-2022 MFSC in terms of the need to monitor [Redacted] activity and the need for emergency medication, [Redacted], for a life threatening [Redacted] and that [Redacted]was provided by the parents (T.369;381). She explained that [REDACTED] letter indicated that [REDACTED] required 8 ounces of water via a pump or a [Redacted] and defined a [Redacted] as a syringe to inject the water into the [Redacted] (T.372). She stated that there were 3 nurses on staff at [REDACTED] and that the nurse for the 12:1:4 MFSC for older students was located across the hall a few steps away from her class on the 1st floor and the nurse's office was nearby (T.375). She noted that in the event of her absence that the supervising nurse would replace her in the classroom (T.378). She stated that while there were students in the MFSC who had [Redacted] none were life threatening and that while she had [Redacted] medication available, it was never needed (T.382). She explained that [REDACTED] syndrome had low incidents of mortality and presented with various types of [Redacted]s, but that the [REDACTED] experienced [Redacted] or [Redacted] or [Redacted] and she opined that if [REDACTED] were placed in the MFSC, then she would become familiar with [REDACTED]'s [Redacted] and that she would be able to provide a [Redacted] of water 3 times per day through her [Redacted] as noted on the IEP (Exh. 2 at 10) and did not recall if [REDACTED] was brought to the MFSC in September 2020 for the 2020-2021 school year (T.386).
On cross the District's classroom nurse stated that on occasion that she needed to go into the MFSC for older students to give another opinion for a student's rash (T.391) and that the nurse in the other MFSC came into her class (T.393). She stated that she had never experienced a case where a student had uncontrollable [Redacted]s that required additional staff (T.400). She stated that the children in her class for the 2021-2022 school year did not go to the playground as presently only 1 child was able to walk, but that a few times per week the children were taken outside prior to dismissal and that she would not accompany the children outside or while the children go to the gym and maintained that except of a short lunch break that she was in the class and noted that the nurse from the other MFSC covered her in her class during her lunch break (T.402). She maintained that even in the rare occasion that she was away from the class for a bathroom break or lunch and there were 4 other 1:1 aides and a classroom teacher and 2 other nurses so in no case would any student have a [Redacted] that lasted over 10 minutes without her knowledge (T.405-488). She stated that she believed that the 7th student was scheduled to join the proposed class and that child also received [Redacted] feedings twice per day (T.411).
On redirect District's classroom nurse stated that the IEP (Exh. 2 at 10) mandated a feeding therapy consultation weekly in addition to a PT consultation and skilled nursing services available in the class as needed daily and that predictable nursing services including [Redacted] feedings, recording [Redacted] and in the event of an emergency administering [Redacted] (T.415).
The District's NYS licensed Speech and Language Pathologist and Feeding Therapist, employed by the District for 16 years, testified that she held a NYS permanent license as a teacher of the speech and hearing handicapped and part of her responsibility was to consult with staff to address the feeding needs of students (T.424-426). She stated that she was involved with the 12:4:1 MFSC at [REDACTED] and conducted an observation (Exh. 8) of [REDACTED] as part of the annual review on June 21, 2021 (T.427). She stated that her observation on June 17, 2021, lasted 40 minutes and noted throughout the evaluation that she was happy and that she reviewed Dr. [Redacted] letter regarding [REDACTED]'s needs. She recalled that there was a new nurse with [REDACTED] who was feeding [REDACTED] and as [REDACTED] was disturbing the class the [REDACTED] teacher took over feeding [REDACTED] a snack (T.433). She stated that [REDACTED] was ready and eager to eat and that [REDACTED] attempted to close her mouth over the food, and attempted to suck the food off the spoon, but noted that [REDACTED] needed assistance to get a successful mouthful (T.456). She stressed that the classroom teacher took over from the new nurse to feed [REDACTED] a snack as the classroom teacher was more familiar with [REDACTED] (T.437).
The District's Speech Pathologist and Feeding Therapist opined that based on her observation that [REDACTED] had the potential to improve the quality of her ability to safely eat and that [REDACTED] should be observed during a feeding and must feeding if she experienced a [Redacted] (T.440). She stated that [REDACTED] did not lateralize food in her mouth nor chew on food and opined that based on her observation that student needed a feeding goal (T.444). She stated that she would work with [REDACTED] on the feeding goal was in the IEP (Exh. 2 at 9) located in the DLS section so that [REDACTED] would demonstrate emergence of up and down motion on chewy tube (T.446). She explained she would provide the weekly feeding consultation support for 30 minutes (Exh. 2 at 10) in the IEP to work with the aides so they could safely feed [REDACTED] food as all hydration was through the [Redacted] (T.447-449). She explained the feeding therapy would be provided during the 3 weekly SLT sessions for 30 minutes per session (T.450) and that she would work with the SLT provider and work with the aide to ensure that [REDACTED] would meet the goal (T.452). She recalled that she participated in the June 21, 2021 IEP meeting and recalled that the parent, grandparent and [Redacted] questioned the various goals and she explained that in addition to 3 weekly SLT that [REDACTED] would receive 3.5 hours per week of integrated SLT session in the class as part of the 12:1:4 MFSC program (T.454). She explained that the feeding therapy consultation weekly was to ensure that any staff member (like a 1:1 aide) understood the protocol for a child with potential multiple [Redacted]s and that she would follow through each week to sure that the person feeding [REDACTED] would position the spoon correctly and to ensure that the person feeding [REDACTED] was aware of her feeding issues.
On cross Speech Pathologist and Feeding Therapist stated that she had not met [REDACTED] prior to her observation and while she was employed by the District that she worked for other districts and that she was in [REDACTED] at least 3 times per week to provide direct feeding therapy to student (T.465) and that should the feeding therapy would be integrated into the 3 sessions of weekly SLT and that if [REDACTED] was working on a communication device she would integrate the food in a functional manner (T.466). She stated that there was an expressive goal and a reception goals, but no labeled SLT goal for feeding (T.460), and noted that only a speech pathologist would work on a feeding goal. She agreed that chewing on a chewy tube was also sensory and that she wrote the feeding goal to develop her ability to eat for DLS and that it was not an OT or PT goal (T.470-471). She acknowledged that she did not write any further feeding goals and that she did not speak with the [REDACTED] SLT provider during her observation (T.475) and that no [REDACTED] SLT provider was present for the meeting (T.479).
The District's NYS licensed Speech Language Pathologist, employed by the District since 2005, and a holder of certifications of a bilingual extension for [REDACTED] and to teach the speech and hearing handicapped (T.501), testified that she conducted the SLT Triennial Evaluation on June 11, 2021, (Exh. 7) of [REDACTED] while she was at [REDACTED], the pendency placement (T.504). She recalled that she was taken to a room at [REDACTED] and [REDACTED] and her nurse and the [REDACTED]'s school psychologist were present (T.506). She related that she spoke to [REDACTED]'s [REDACTED] SLT provider after the evaluation and that she evaluated [REDACTED]'s non-verbal comprehension by showing her objects and then asking [REDACTED] to hand the items to her. She recalled that [REDACTED] was unable to use her hands in a functional way and concluded that [REDACTED] was unable to do most of the tasks on the LAP-D and noted that [REDACTED]'s then current SLT provider was working on using [REDACTED]'s eye gaze to communicate to teach her to gaze at a compute devise (T.510;512). She noted that she communicated in English and [REDACTED], but that [REDACTED] did not respond in either language (T. 511).
When questioned about her input in the June 21, 2021 IEP, the District's Speech Language Pathologist stated that she recommended 1:1 SLT 3 times per week for 30 minutes (Exh. 2 at 9) and recommended support for the classroom staff of integrated SLT in the classroom 3 times per week for 3.5 hours (Exh. 2 at 11) and recommended an AT consultation on the IEP to help [REDACTED] access communication based on a device and opined that she would have worked with [REDACTED] to look at pictures to improve her eye gaze and then maintained that [REDACTED] would be able to communicate by her eye gaze on a device (T.516;520). She explained that the recommendation of integrated SLT in the classroom would incorporate the 1:1 SLT and help [REDACTED] generalize her SLT skills (T.528). She stressed that the feeding therapy skills would be given to [REDACTED] in the 1:1 SLT session by the integrated feeding therapy consultation (Exh. 2 at 10) with the classroom staff (T.529) and that the SLT consultation would integrate 1:1 SLT vocabulary and skills with the classroom staff to help the teacher and aides help [REDACTED] access her communication by eye gaze and by providing the staff with printed material or teaching the staff to communicate with [REDACTED] in a particular way (T.537-539;621). She reviewed the SLT goal to use a non-verbal means of communication with 80% accuracy and opined that [REDACTED] would be able to meet that goal by the end of the year and she worked in the MFSC and observed non-verbal students similar to [REDACTED] progress in their ability to communicate by a non-verbal means and improving comprehension by looking at pictures (T.544). She opined that the feeding therapist would work on the feeding goal to develop chewing skills and that it was placed in the DLS section of the IEP as it was a DLS and that the feeding therapist would consult with the classroom staff, or the person assigned to feed [REDACTED] (T.546). She stated that she did not knew that the team would recommend a placement in the MFSC for the 2021-2022 school year until the end of the June 21, 2021 IEP meeting (T.620) and that the as needed daily skilled nursing services was only for [REDACTED] (T.622).
When questioned as to the benefit of speaking with the [REDACTED] SLT provider after the evaluation, the District's Speech Language Pathologist stated that it was beneficial to know that the [REDACTED] SLT provider was working on eye gaze to communicate with [REDACTED] (T.554) and she explained that there were eye gaze communication devices to use in SLT to help [REDACTED] train her eye to communicate (T.557). She recalled that for the 45 minutes of evaluation that [REDACTED]'s nurse did not interact with [REDACTED] (T.560).
On cross the District's Speech Language Pathologist acknowledged that she was not aware if [REDACTED] experienced an absence [Redacted] during her evaluation except to note that [REDACTED] engage with her and her nurse did indicate that [REDACTED] was having a [Redacted] (T.563). She recalled that the [REDACTED] SLT provider told her that [REDACTED] was making progress (T.565) and was told that [REDACTED] was using the Big Mac, an AT device to communicate with eye gaze (T.569) and acknowledged that no goal mentioned the use of a Big Mac (T.570). She further acknowledged that the goal of chewing on a tube was in the DLS section of the IEP and could not explain why a feeding therapist would use chewing on a tube to increase her feeding skills (T.571). She explained that the SLT consultation would benefit the entire class, but the feeding therapy would benefit only [REDACTED] as the classroom support would be incorporated with the classroom staff (T.573) and the AT consultation once weekly for 1 hour in the classroom (Exh. 2 at 10) would only benefit [REDACTED] (T.574).
The District's NYS licensed Physical Therapist, employed by the District since for 10 years, testified that she had treated and evaluated students with disabilities for the past 20 years (T.628). She stated that attended approximately 50 IEP meetings for the District in the past 10 years and that she had evaluated [REDACTED] on June 11, 2021 (Exh. 6) when [REDACTED] was at [REDACTED] and recalled that the evaluation took place at in private room and that she was escorted to the room by [REDACTED]'s then-current teacher and a [REDACTED] school psychologist and [REDACTED] with her private nurse and noted that the District's SLT provider, and the District's OT provider, were also present and that [REDACTED]'s private nurse addressed the group to explain that [REDACTED] had [Redacted]s (T.646). She recalled that [REDACTED] was seated in a [Redacted] chair and was strapped into a harness and that she started to sing to [REDACTED] to calm her and that the Districts' providers left the room (T.631;649). She recalled that she transferred [REDACTED] from the chair to the mat on the floor to start the evaluation and that she checked for range of motion ("ROM") for about 10-15 minutes and recalled that the classroom teacher told her that [REDACTED] had outgrown her orthotics so she was unable to test her in a standing position (T.633-634). She stated that she assessed [REDACTED] through the PDMS-2, a standardized test for locomotion, ball activities and stationary abilities (T.635;649). She stated that she did not speak to the [REDACTED] PT provider but did speak to the [REDACTED] classroom teacher and opined that [REDACTED] did not experience any [Redacted]s as she sang to [REDACTED] throughout the evaluation to calm her in both English and [REDACTED] (T.638). She recalled that [REDACTED] was happy and smiling throughout the evaluation and did not believe that [REDACTED] understood any command asked of her (T.641). She stated that [REDACTED]'s ROM was not smooth as she lifted her arm as she felt a slight cogwheel but noted that sitting in a wheelchair would cause stiffness (T.644).
When questioned as to the result of the PDMS-2 scores (Exh. 6 at 2) and her participation in the June 21, 2021 IEP meeting, the District PT provider stated that the raw score of 15 for locomotion was 2 standard deviations below the mean and such a low score indicated that [REDACTED] required a large amount of PT and so she recommended 1:1 PT 2 times for 45 minutes and 1:1 PT once for 30 minutes (Exh. 2 at 1) as [REDACTED] was so severely disabled and opined that 45 minutes of PT was optimal as the end result of PT was to get [REDACTED] into a stander and a walker (T.652). She stated that putting a child into equipment took a long period of time and that 45 minutes of PT would be sufficient time to work on standing and walking and that 30 minutes of PT would be to strengthen her ROM (Exh. 2 at 9-10;T.653). She recalled that she was told that [REDACTED] had received 1:1 PT 4 times per week for 30 minutes per session at [REDACTED] and explained the reason for the change in PT mandate to the IEP team and her reasons to change the mandate and noted that she explained that 1:1 PT (2 x 45; 1 x 30) versus 1:1 (4x30) was successful with children with similar physical deficits as [REDACTED] (T.654) and stressed that her recommendation was based on her experience as a PT provider and no other reason (T.659). She recalled that the parent, [Redacted] and grandparent were present at the IEP and did not raise any objection to the change in PT mandate (T.663).
When questioned as to the PT goals and PT mandate, the District PT provider stated that she wrote the goals with the aim that [REDACTED] would work on walking and opined that the 2 goals to walk 30 feet using a walker and to tolerate the stander for up to 2 hours a day were appropriate based on her clinical experience and noted that the criteria and measurement of progress based on her evaluation (T.666). She stated that in addition to the 1:1 PT sessions that [REDACTED] was recommended to receive PT in the classroom as carryover support (T.667). She explained that the MFSC classroom staff had to understand her PT needs and stated that the IEP mistakenly noted that PT consultation was for 2.5 hours and that the IEP should have mandated PT consultation for 30 minutes (T.669) and that based on her knowledge of the PT room at [REDACTED] for the MFSC there were standers, walkers, mats, balls and swings and she opined that with the PT sessions and PT goals that the MFSC at [REDACTED] would be able to meet [REDACTED]'s PT needs (T.692-693).
On cross the PT provider stated that during her evaluation that she was not able to observe [REDACTED] walk around [REDACTED] due to COVID restrictions (T.671). She acknowledged that she was unaware of the MOVE program at [REDACTED] and that she only spoke to [REDACTED]'s private nurse and her [REDACTED] classroom teacher and the [REDACTED] school psychologist (T.673). She acknowledged that it was not advisable to place [REDACTED] in a stander until she received the new orthotics to fit her as she had outgrown her orthotics (T.674;690). She stated that [REDACTED]'s muscle tone was normal and that she experiences a small amount of [Redacted] (T.689) and was not aware if [REDACTED] had a curved spine as she did not undress her (T.677). She stated that to place [REDACTED] in a standing was a gradual process to acclimate her for 2 minutes and then 5 minutes and then 7 minutes to finally 15 minutes (T.680-682). She explained that she divided her PT session into 3 or 4 parts: ROM, strengthening, sitting and working on standing if there were orthotics (T.684). She recalled that she asked if she could speak to the [REDACTED] PT provider and was told that she could not as the PT was not available (T.685-686).
The District's NYS licensed and registered OT provider, employed by the District for 10 years and providing OT services to children since 2006, testified that she worked with a full range of students from typically developed to severely disabled and described her duties was to supervise the OT aides as well as conduct to initial evaluations and also provided OT sessions to individual students (T.700). She stated that she evaluated [REDACTED] while she was placed in [REDACTED] as part of the annual review (T.701) on June 11, 2021 (Exh. 11) and noted that her report contained an error in the date of birth (T.703).
The District's OT provider stated that she was accompanied by the District's OT and SLT providers and recalled that the due to COVID that they were not together as she evaluated [REDACTED] (T.705). She recalled that [REDACTED] started to whine as she began to evaluate her and so she asked the [REDACTED] classroom teacher and private nurse who accompanied [REDACTED] into the room if [REDACTED] was exhausted or needed a break after the OT provider and the SLT provider had evaluated [REDACTED] and was told that [REDACTED] whined when she was hungry or needed a diaper change (T.706). She stated that her evaluation lasted 30 minutes and that during the evaluation [REDACTED] started to smile and her classroom teacher said that she was having a [Redacted] and her nurse placed a towel on the table in front of her and then the [Redacted] stopped (T. 708). She stated that the [Redacted] lasted a few seconds and that she did not recall if the nurse recorded the [Redacted] (T.710). She explained that she used the LAPD-3 to evaluate [REDACTED]'s ability to place cubes into a bucket and that [REDACTED] was unable to reach for the cube so she gave her "hand over hand" support to move the cube and her teacher said that it was only recently that [REDACTED] allowed "hand over hand" support (T.713). She noted that the last section of the LAPD-3 presented a "cause and effect" toy to [REDACTED] and that [REDACTED] was able to bring her whole hand to try to open the toy, but [REDACTED] was not able press the button so the toy popped up (T.716). She stated that she then checked [REDACTED]'s ROM on her upper body and noted full ROM (T.717). She stated that the Z scores in manipulation and writing (Exh. 5 at 2) reflected that fact that [REDACTED] did not receive any points for any activities as compared to children her age (T.718). She recalled that she spoke to [REDACTED]'s [REDACTED] OT provider but did not receive any further information about [REDACTED]'s OT abilities (T.720).
When questioned as to her participation in the June 21, 2021 IEP meeting, the District's OT provider stated that she discussed her evaluation and recommendation of 1:1 OT twice per week for 30 minutes to work on her individual needs and then a session of integrated OT in the classroom once weekly for 60 minutes (Exh. 2 at 9;11). She described the OT equipment in the classroom for the MFSC included lights, vibration, noises, blocks and cubes, large beads, a dowel, books, crafts materials, slant boards and noted that there was equipment in the OT room such as swings, trampolines, bolsters and wedges so [REDACTED] could work with the classroom staff (T.529). She explained that recommending OT as an integrated service in the classroom based on the high OT needs of the children in the MFSC was based on research (T.731). She stated that she developed the motor skills goals to purposefully make a mark on the page because her evaluation revealed that [REDACTED] was unable to grasp the marker and she intended that over the year that [REDACTED] would make a purposeful mark on a page 5 times over 6 weeks as recorded by observation (T.733) and the next goal to incorporate both hands into sensory motor activities with verbal and visual cues was written because [REDACTED] was only able to bring her left hand forward and she needed to use both hands together (T.734) and then the next goal to grasp a cube and place it in a bucket was written because [REDACTED] was unable to grasp and release on demand (T.735). She stated that she did not recall if any team member disagreed with the goals (T.736;776;771). She explained that 1:1 OT twice per week for 30 and an integrated OT once per week for 60 minutes was so that [REDACTED] would not miss time in the classroom and so the classroom staff could follow through OT goals during a fine motor activity or sensory motor activity conducted in the class (T.773). She explained that [REDACTED]'s 1:1 aide and classroom teacher could work with the OT provider in the classroom during the integrated OT session to interact with [REDACTED] in the best possible way (T.775). She stressed that the integrated OT session would allow [REDACTED] to generalize what she was learning in the 1:1 OT session and to promote her independence (T.778) even when the integrated OT session was taught to the whole class (T.782).
On cross the District's OT provider stated that she had experience with children who had a [Redacted], and that she had observed [REDACTED] experiencing a [Redacted], but that she did not contact any medical staff regarding [REDACTED]'s [Redacted]s or the [REDACTED] diagnosis (T.752-753). She stated that she did speak to [REDACTED]'s [REDACTED] OT provider after her evaluation who told her that [REDACTED] OT was mainly push-in and that [REDACTED] received 3 OT sessions per week and acknowledged that she did not evaluate [REDACTED] for a sensory processing disorder as she needed to observe [REDACTED] interact with her environment (T.757). She was unable to answer how [REDACTED] was affected by being evaluated for OT, SLT and PT consecutively nor could she answer how having a [Redacted] in the middle of her OT evaluation affected [REDACTED] (T.758). She stressed that she asked the [REDACTED] teacher if she felt [REDACTED] could tolerate 3 evaluations on a single day and was told it was fine (T.759;770). She recalled that [REDACTED] prior 1:1 OT mandate was 3 times per week for 30 minute per session (T.763) and explained that she changed the 1:1 OT mandate to 2 times per week for 30 minutes per session in the OT room or the classroom and a push-in session into the classroom once per week for 60 minutes to support [REDACTED] in terms of the staff in the classroom as the OT provider might present an activity that incorporates both hands to show the classroom teacher and classroom staff (4 aides in addition to the 1:1 aide for [REDACTED]) how to incorporate OT from the therapy room to the classroom (T.766) and that the recommendation was based on [REDACTED]'s needs (T.764).
The District's Chairperson of CSE for the past 16 years, testified that she was certified as a speech therapist and as a teacher for the hearing impaired, and was certified as a special education teacher and administration (T.806). She stated that she was a parent of a very disabled child who had epilepsy and held a master's degree in special education and a master's degree in speech therapy and had received a training in a program to be a traumatic brain injury consultant (T.806). She stated that she was the Chairperson for the June 21, 2021 IEP meeting and recalled that the parents' advocate, the grandparent, the parent, the [Redacted], who was a person paid by the parents to take care of [REDACTED], participated and that the meeting lasted over 2 hours (T.809). She stressed that the 4 individuals representing [REDACTED] were given the opportunity to ask questions and raise concerns (Id.). She listed the District's participants that included the MFSC classroom teacher, the School Psychologist, the Case Management Representative, the Coordinator of Health Services, the SLT provider, the Feeding Therapist, the OT provider, the PT provider, the Supervisor who was the liaison to Case Management and the District's attorney and noted that the [REDACTED] staff participated by the principal, the [REDACTED] psychologist, and the [REDACTED] classroom teacher for [REDACTED] (Exh. 2 at 1; T.811-813). She stated that her job was listen to all the participants and to come to an agreement about [REDACTED]'s placement and program at the end of the meeting (T.814). She noted the factors considered included safety needs, physical needs, educational skills, adaptive living skills, communication skills and gross/fine motor skills and stressed that safety concerns were paramount as [REDACTED] was [Redacted] fed and was dependent on nurses to feed her and that the team considered [REDACTED]'s then-current placement at [REDACTED] and considered the MFSC as [REDACTED] and considered the ambiance of the class, the sensory diet as well as exposure to typically developed children as well as the shortened bus ride (T.816). She explained that LRE was law and stressed that even for a severely disabled child such as [REDACTED] had the right to experience the mainstream of life (T. 818). She recalled that the decision to place [REDACTED] in the MFSC at [REDACTED] was difficult because the parent, grandparent and [Redacted] aggressively advocated that [REDACTED] continue to attend the [REDACTED] placement for the 2021-2022 school year as they felt the MFSC was not safe (Exh. 13 at 2; T.819;871). She stressed that the decision to recommend the MFSC at [REDACTED] was appropriate in light of the related service and integrated services and was the LRE (T.821). She noted that [REDACTED] was placed in [REDACTED] in April 2021 and had been there for only 3 months at the time of the IEP meeting and that the team listened to the [REDACTED] staff to understand [REDACTED]'s needs (T.823), but opined that in the best interest of the child ("BIC") that [REDACTED] be placed in the LRE as the bus ride was shorter and with her [Redacted] issues a shorter bus rider was safer and stressed that the ability to receive all her medical, educational and physical needs in her community in addition to mainstreaming opportunities to model typical behavior was the BIC (T.873-874). She stated that not only was a shorter bus ride a consideration for LRE, but that [REDACTED] benefited from seeing typically developed children in her home zone and that typically developed children pushed into the MFSC at [REDACTED] (T.939) and the class attended school wide assembles and that children in the MFSC in wheelchairs and walkers were welcome to participate in school wide activities such as a parade for Halloween (T.940;947). She opined that no child was ever unsafe in the MFSC at [REDACTED] (T.943) and that only program with a nurse in the classroom was the MFSC at [REDACTED] as the [REDACTED] MFSC did not mandate a nurse in the classroom (T.944). She explained that the MFSC program at [REDACTED] had a nurse in the program, nearby the classroom, but not in the classroom (T.945).
When questioned about the PWN (Exh. 1) and the IEP (Exh. 2), the Chairperson explained that she first asked the parent and family for their input and then the school psychologist presented the overview of the assessments and then the [REDACTED] staff talked about how [REDACTED] was doing and recalled that the parent wanted a [REDACTED] program even though [REDACTED] and the MFSC were not bilingual [REDACTED] programs (T.824). She then recalled that the SLT, OT, PT providers all discussed their recommendations for the related services and the feeding therapist provided input and the PT provider discussed the need for PT sessions for 45 minutes and [REDACTED]'s adaptive living skills were discussed as were her low communication, fine / gross motor skills. The Chairperson stressed that the parents were given the opportunity to ask questions (T.826). She stated that she developed the PWN and IEP after the meeting and described the 12:1:4 MFSC in EEC as a NYS-approved program and noted that the District limited the class size to 8 children and currently there were 6 students in the class (T.829). She opined that [REDACTED]'s needs would be met by the classroom nurse and noted that the District did not allow [REDACTED]'s private nurse to attend the class and stressed that in case of an emergency that there was another nurse in the 2nd MFSC located next door and another nurse in the building (T.830). She stated that the members reviewed the psychological evaluation (Exh. 3), the educational evaluation (Exh. 4), the OT report (Exh. 5), the PT report (Exh. 6), the SLT evaluation (Exh. 7), the Feeding Observation (Exh. 8), the Nursing Observation (Exh.9) and medical letter (Exh. 10) and at no time did [REDACTED]'s family or [Redacted] or advocate indicate that they wanted to submit additional information (T.831-834).
The Chairperson explained the difference between nursing care and a 1:1 nurse and noted that the [REDACTED] principal indicated that while [REDACTED]'s 1:1 private nurse was permitted in the class, they would not have placed a nurse in the classroom as part of the [REDACTED] MFSC 12:1:4 class as there was a nurse on call all day (T.838-840). She described the sensory diet setting in the 12:1:4 MFSC in [REDACTED] included soft colors, lavender, soft pillows, soft music and soft fabrics that the children touch (T.845). She explained that [Redacted] disorder included [Redacted], or [Redacted] or [Redacted] or [Redacted]s and noted that all the staff in the 12:1:4 MFSC were trained in what to do for [Redacted]s including grand mal and that [REDACTED]'s [Redacted]s were absent or petit mal and that the [REDACTED] staff indicated that [REDACTED] required direct 1:1 nursing services for the [Redacted] administration 3 times per day and opined that [REDACTED] did not need 1:1 nurse to be safe (T.847;876). She stated that life threatening [Redacted]s were static epilepsy and that there was no medical information that indicated that [REDACTED]'s [Redacted] were life threatening (T.850). She opined that the nurse in the 12:1:4 MFSC would ensure that [REDACTED] was safe and that the [REDACTED] principal stated more than once during the meeting that [REDACTED] could have her needs met without her 1:1 nurse (T.864) and she opined that the same nurse in the 12:1:4 MFSC class provided consistency for [REDACTED] (T.875).
When questioned about the change in PT duration, the Chairperson stated that at first the [Redacted] was in favor of 2 sessions of PT for 45 minutes and 1 session of PT for 30 minutes and that after the [REDACTED] staff indicated that PT was only provided for 30 minutes, the family requested 4 session of PT for 30 minutes per session (T.854-856). She stated that as the Chairperson of the IEP meeting, she would never "shoehorn" related services into an IEP to fit what was available at the school rather than what the PT provider recommended (T.859-860).
When questioned as to the classroom consultation versus 1:1 related services, the Chairperson stated that the SLT provider would come into the classroom once per week for a language-enriched program for 3 hours and 45 minutes and the OT would come into the classroom once per week for 60 minutes to support the school personnel on behalf of the students and explained that the integration of services differed from individual services as the services were to enrich the group of students in the class as well as addressing the student's specific needs (T.866). She noted that the PT, OT and SLT providers pushed into the class to explain how they addressed [REDACTED]'s needs and provide support for the classroom staff on behalf of [REDACTED] (T.867), specifically the SLT provider could explain to the classroom staff how [REDACTED]'s communicated by her eye gaze (T.868). She stressed that [REDACTED]'s 1:1 aide would be working with the PT, OT and SLT providers during the consultations to work on helping [REDACTED] with fine motor skills or sensory skills throughout the day (T.868).
On cross the Chairperson acknowledged that she never met [REDACTED] and that except for the letter (Exh. 10), she had no other documentation relating to [REDACTED]'s diagnosis at the CSE meeting and that the Health Coordinator based her understanding of [Redacted]s based on her observation of [REDACTED](T.883-884). She stated that Dr. [Redacted]'s letter (Exh. 10) provided the information the CSE needed to make a decision and no further updated medical information was necessary (T.890). She explained that she was unaware why the CSE listed the [Redacted] as the guardian (T.901). She stated that she was not questioning the motives of the parent, grandparent or [Redacted] in their desire to keep [REDACTED] in [REDACTED] as that they considered [REDACTED] to be best for [REDACTED] (T.902), noted that the parent's team were not concerned with the longer bus ride to [REDACTED], but were concerned about the lack of a nurse on the school bus (T.905-906). She stated that the parent expressed her reluctance to place her daughter at MFSC in [REDACTED] and stressed that the CSE did listen to the parent's concerns as the start of the IEP and did listen to the [REDACTED] staff as they described [REDACTED] and did consider a [REDACTED] placement; however, she maintained that the [REDACTED] staff the team believed [REDACTED]'s [Redacted] nurse had little involvement with [REDACTED] because the [REDACTED] principal stated that [REDACTED] did not need a 1:1 nurse as the teacher assistants did the toileting (T.916). She explained that as the [REDACTED] principal considered the [REDACTED] staff in the class sufficient to meet [REDACTED]'s needs she was not aware that even if the IEP mandated a 1:1 paraprofessional that [REDACTED] would provide a 1:1 aide as it was [REDACTED]'s decision. She stated that she was unable to answer whether [REDACTED] would be able to implement the IEP that mandated a 1:1 aide if they did not feel a 1:1 aide was needed for [REDACTED] (T.916-919).
When questioned about mainstreaming the Chairperson stated that the students in the MFSC in [REDACTED] ate lunch in the classroom and that noted that the students were in the separate wing of the building (T.924). She stated that she had personal experience as a parent with a son who experienced clusters of [Redacted]s and opined that [REDACTED]'s [Redacted]s were not a major cause of concern (T.925-926).
On redirect, the Chairperson stated that Dr. [Redacted]'s letter (Exh. 10 at 1) indicated that [REDACTED]'s [Redacted] disorder was well controlled and that no one had indicated that her [Redacted]s were life threatening at the IEP meeting (T.930). She explained that [REDACTED]'s [Redacted] disorder required skilled nursing services for [Redacted] feeding as she could not drink water on her own and opined that Dr. [Redacted]'s recommendation for 1:1 nursing service in school with her home nursing staff was a recommendation that the CSE considered but was not considered a mandate (T.933). She recalled the District's Health Coordinator had conveyed that the [Redacted] that indicated that [REDACTED] [Redacted] were worse at home than at school (T.935). She explained the various specialized placements that the CSE considered for student included the MFSC and the bilingual [REDACTED] special class and [REDACTED]; however, as [REDACTED] was not verbal and her needs were too great to be met in a bilingual special class and her needs could be met in the MFSC in [REDACTED], then a more restrictive placement was not needed (T.937).
The Supervisor of Case Management & Nonpublic School Services testified that she was employed with the District since 1993 in various capacities and that she worked as a school psychologist and administrator at both the building level and district level and was a licensed medical health professional (T.1606). She stated she participated in the CSE meeting for [REDACTED] because she was placed at [REDACTED] for pendency and that she spoke with the parent several times regarding her daughter's attendance at [REDACTED] and her attendance at a summer camp and about the District's placement (T.1608). She stated that she recalled a discussion with the parent about her daughter's need for a nurse on the school bus and noted that the parent was desperate to ensure that her daughter remain on the bus even without her nurse (T.1690). She stated that there was an issue with [REDACTED]'s [Redacted] nurse who, unvaccinated, did not want to ride the school bus with [REDACTED] (Id).
The Supervisor stated the parent told her that if needed that [REDACTED] should be able to take the bus with her [Redacted] nurse and e-mailed her on October 20, 2021, (Exh. 16), to state that she gave her permission to allow her daughter to go to school without her nurse if needed (T.1611); however, the parent quickly rescinded her permission to allow her daughter to take the bus without her nurse (T.1619) on the same date that she sent the e-mail (T.1699).
The Supervisor stated that prior to the June 21, 2021 IEP meeting that [REDACTED]'s team had completed an annual progress for [REDACTED] (Exh. F) dated May 13, 2021, and that the report was e-mailed to her, but that their e-mail was sent to her spam box and that she did not upload the report into the software, IEP Direct, until on or about November 2022 (T. 1616;1627). She stated that she was unaware during the June 21, 2021 IEP that a [REDACTED] annual progress report existed for [REDACTED], but noted that the then-current [REDACTED] classroom teacher and the [REDACTED] principal participated in the meeting to provide the team with the current information of [REDACTED] as [REDACTED] was never in the District (T.1618).
The Supervisor stated that the [REDACTED] classroom teacher was the primary author of the report and opined that all the information contained the annual report (Exh. F) was contained in the June 21,2021 IEP (Exh. 2) because the [REDACTED] teacher provided such specific and detailed information regarding [REDACTED]'s academic achievement and functional performance (T.1621). She crossed referenced the data contained in the June 21, 2021 IEP (Exh. 2 at 6-7) and the report (Exh. F at 6) and noted the basic cognitive abilities/DLS were similar and cross referenced the IEP goals (Exh. 2 at 8-9) and [REDACTED] goals (Exh. F at 7) and noted their similarity (T.1627-1633).
The Supervisor stated that she had a conversation with the [REDACTED] principal memorialized in an e-mail chain between herself and the principal (Exh. 15) dated August 2, 2021, indicated that she attached the June 21, 2021 IEP when [REDACTED] returned to [REDACTED] on September 10, 2021 (Exh. 15 at 3) and the e-mail dated August 3, 2021, indicated that the goals from the 2019-2020 IEP were going to be used in [REDACTED] as the pendency placement was not contested (Exh. 15 at 1-2;T.1638-1640).
The Supervisor stated that she did not speak to the [REDACTED] principal until August 2, 2021, despite the fact that the 2021-2022 school year started in July 2021 because the parent told her that [REDACTED] would attend a special education sleep away camp for the summer of 2021 (T.1641). She explained that she had to coordinate with the [REDACTED] principal to ensure that he had the June 21, 2021 IEP for [REDACTED] for the start the 2021-2022 at [REDACTED] per the pendency agreement because it was her understanding the parent was not contesting the goals of the June 21, 2021 IEP. She stated that she attended the June 21, 2021 IEP meeting and took notes (Exh. 12) of the meeting (T.1643).
The Supervisor stated that she was aware that the parent's position to keep [REDACTED] at [REDACTED] for the 2021-2022 school year at the start of the meeting because the parent's advocate attended the meeting, but opined that the decision to place [REDACTED] at the MFSC at [REDACTED] was not pre-determined (T.1644;1691).
The Supervisor stated that she organized each person's participation at the June 21, 2021 IEP meeting in her notes (Exh. 12) and that the [REDACTED] principal participated 6 times and the classroom teacher provided a large amount of information regarding [REDACTED] (Exh. 12 at 1; T.1652;1688-1689). She recalled a discussion of [REDACTED]'s needs and that [REDACTED] had outgrown her ankle foot orthotics ("AFO") and that she could not be placed in a stander without new AFO (Exh. 12 at 1). she recalled that District's PT provider felt that 2 sessions of 45 minutes per session would be beneficial for [REDACTED] (T.1655).
The Supervisor stated that she recalled that the [REDACTED] principal stated that he did not feel that [REDACTED] required a nurse in the classroom or a nurse on the bus (Exh at 12 at 2) and noted that the June 21, 2021 IEP mandated a nurse in the classroom (T.1657) and that [REDACTED] did not have a 1:1 aide in the MFSC at [REDACTED], but the June 21, 2021 IEP mandated a 1:1 aide for [REDACTED] (T.1660). She stressed that while it would be important to hear from [REDACTED]'s [REDACTED] PT provider prior to changing the mandate from 30 minutes to 45 minutes as part of the multi-disciplinary team, the District's PT provider was able to change PT duration (T.1652).
The Supervisor stated that at no time during the June 21, 2021 IEP meeting did the [REDACTED] staff disagree with the recommendations of the program recommended by the CSE (T.1729). She opined that there was a nurse on the small bus as mandated on the IEP as no other parent of a student who was on the bus complained that no nurse was present (T. 1730).
On cross the Supervisor stated that she spoke to the transportation department and the parent to learn that [REDACTED] did not take the bus to [REDACTED] twice because there was an issue with her nurse as the nurse felt safer in her own car rather than on the bus (T.1699). She stated that she was present at the June 21, 2021 IEP meeting because pendency was involved so she participated and that [REDACTED] principal participated as [REDACTED] was attending [REDACTED] along 46 other District students (T. 1710) and that she drafted the notes of the attend[Redacted] who spoke (Exh. 12) during the meeting as it was a contested meeting (T.1711).
The Supervisor stated that she spoke with Chairperson prior to the meeting about [REDACTED]'s needs and together they reviewed the reports except the [REDACTED] annual report (Exh. F) dated May 2021 that she did not receive prior to the IEP meeting (T.1712) and acknowledged that all the reports were from District staff but stressed that all the information contained in the IEP (Exh. 2) was also contained in the annual report (Exh. F) as the [REDACTED] classroom teacher was present, but the [REDACTED] PT and OT providers were not present (T.1714).
When questioned about the IEP goals, the Supervisor stated that based on the progress on the report (Exh. F at 6) that the [REDACTED] goals were older goals that [REDACTED] was working on and that [REDACTED] achieved goal 4 to use verbal approximations and goal 5 to use non-verbal communication to indicate requests for a desired item (Exh. F at 6-7) and noted that there were 6 licensed special education teachers present for the IEP meeting including the MFSC at [REDACTED] teacher as the District must always consider the LRE when deciding on a program (T.1720).
The Supervisor stated that she realized that the [REDACTED] annual report (Exh. F) was in her spam mail until the fall of 2021, and that she reviewed the report to ensure that the June 21, 2021 mirrored all the information contained in the report so there were no reason to hold another CSE meeting (T.1722). She opined that [REDACTED] MFSC was an excellent program, but the CSE was looking for the LRE for [REDACTED] and that none of District programs besides the MFSC had a nurse in the class as part of the program (T.1735).
The Supervisor stated that while she was aware of the parent objected of the MFSC in [REDACTED] and that the team considered the parent's objections, but that the team had to consider the LRE and as the parent never tried the MFSC in [REDACTED] and the fact that the MFSC had a nurse programmatic in the class was the LRE as opposed to [REDACTED]'s nurse in the [REDACTED] MFSC (T.1741). She opined that the CSE team did consider the [REDACTED], but the Health Coordinator told the CSE that [REDACTED]'s private nurse left the classroom twice during her 2 observations and also that [REDACTED]'s private nurse sat behind [REDACTED] (Exh. 12 at 2) and opined that that team was concerned that the nurse sat behind [REDACTED] and was concerned that the private nurse would not see [REDACTED] experience a [Redacted] (T.1744) and that the Health Coordinator stated that she did not feel that [REDACTED] needed a 1:1 nurse (T.1747).
THE PARENTS' CASE
The parents' case was presented in the testimony of the parent, the [REDACTED] Special Education Teacher, the [REDACTED] School Principal, [REDACTED]'s Licensed Practical Nurse ("LPN"), the [REDACTED] Speech and language Pathologist, the [REDACTED] Physical Therapist Assistant, the [REDACTED] Occupational Therapist Assistant, [REDACTED]'s doctor, [Redacted], MD and [REDACTED]'s Certified Nurse Practitioner.
The parents' advocate asserted that [REDACTED] was diagnosed with [REDACTED] syndrome, a complex [Redacted] disorder and had multiple [Redacted]s each day and night and required all hydration through her [Redacted] and received IV treatments for her [Redacted]s that while short were increasing in frequency and that [REDACTED] has had a nurse paid by [Redacted] for 24 hours per day for 7 days per week since infancy (T.1015). The parents' advocate further asserted that the parent, grandparent and [Redacted] participated in the June 21, 2021 IEP meeting and disagreed with the recommendation for safety reasons and that the decision to recommend the 14:1:4 MFSC at [REDACTED] was pre-determined and that the District participants did not consider the input from the parent, grandparent, [Redacted] or the [REDACTED] staff (T.1024). The parents' advocate asserted that the [REDACTED] program was appropriate despite no mainstreaming opportunities and that [REDACTED] progressed at [REDACTED] and that the June 21, 2021 IEP was not reasonably calculated to meet [REDACTED]'s very unique specialized needs including her medical needs and failed to provide FAPE (T.1030-1031).
The parent testified that her daughter was born on [REDACTED], with normal development, but at 10 weeks she noticed that [REDACTED] was throwing her head back and arching her back and so she took her daughter to [Redacted] Hospital and that her daughter remained at the hospital in and out for about a week from age 2 months to 6 months and recalled that the hospital staff injected her daughter with cortisone as well as other 20 medications to treat her [Redacted]. She recalled that the hospital staff diagnosed [REDACTED] with infantile spasm and that at the age of 6 months her daughter received nutrition through a [Redacted] and that her daughter was discharged from the hospital with a 1:1 nurse and 4 different machines to feed her (T.1037-1039) and that her daughter received 1:1 nursing services for 24 hours per day and 7 days per week ("24/7") since the age of 6 months to date (T.1041). She stated that diagnosed [REDACTED] with a [Redacted] disorder to age 1 or 2 and that because her daughter required 24/7 care that she placed her daughter with the [Redacted] since the age of 3.5 (T.1062) but stressed that she and not the [Redacted], was involved in every decision regarding her daughter (T.1042). The parent stated that her daughter attended a pre-school, from age 2.5 until age 4 and then she attended [REDACTED] at the age of 5 with her 1:1 nurse (T.1048) and then her daughter aged out of [REDACTED] (T.1053). She recalled that she attended the preschool IEP meeting at the District (Exhs. I & J) when her daughter aged out and that she was open to placements in [REDACTED] or in [Redacted], [Redacted] and that the [Redacted] had a child who attended [REDACTED] (T.1050). She recalled that in September 2020, the [Redacted] nurse, took her daughter to [REDACTED] for 5 minutes and that the nurse was told that her daughter was only able to attend [REDACTED] without her [Redacted] nurse (T.1056;1060). She recalled that she told the [Redacted] nurse not to allow [REDACTED] to attend [REDACTED] without her and to bring [REDACTED] back to her [Redacted]'s home and that she remained at the [Redacted]'s home until she placed her daughter at [REDACTED] (T.1057).
The parent stressed that the District was aware that her daughter was at [Redacted]'s home from September 2020, until April 2021, when she placed her at [REDACTED] because she told the staff that she did not feel comfortable to let her daughter attend [REDACTED] without her [Redacted] nurse and recalled that she was told that the District protocol would not allow her daughter to attend with her [Redacted] nurse (T.1058). She stated that her advocate explained that her daughter could be placed at [REDACTED] as a pendency placement and that [REDACTED] allowed her daughter attend [REDACTED] with her [Redacted] nurse and opined that the program was very safe for her daughter (T.1060).
The parent stated that every year her daughter was assessed with an EEG, a procedure that monitored the brain for 24 to 48 hour to record her [Redacted] and stressed that her daughter experienced different types of [Redacted] from [Redacted] to [Redacted]and small [Redacted] that last for 3 sessions and recalled that if her daughter had a [Redacted] lasted more than 5 to 6 minutes, then she needed medication and that her daughter was on a trial medication of IV treatments to decrease her [Redacted]s (T.1066). She opined that she shared her daughter's medical information with the District at the time of the June 21, 2021 IEP meeting and that there for several nurses to provide care for her daughter 24/7 and that it was appropriate for the nurse to sit behind her daughter to watch her head to observe if there was a [Redacted] (T.1070). She related that the [REDACTED] that there was foam placed on her daughter's desk if case she fell before the nurse could catch her head (T.1071).
The parent stated that she never was provided with the PWN, (Exh. 1) or the IEP (Exh. 2), the Bilingual Psychological Evaluation (Exh. 3) or the Bilingual Educational Evaluation (Exh. 4), or the Occupational Therapy Report (Exh. 5) or the Physical Therapy Report (Exh. 6) or the Bilingual Speech Language Evaluation (Exh. 7) from the District and that no District staff member discussed the evaluations with her (T.1072-1073). She recalled that prior to the June 21, 2021 IEP meeting that she received telephone calls from District staff and that she refused to consider the [REDACTED] an option (T.1074). She recalled that she participated in the June 21, 2021 IEP meeting and that the District related service providers recommended the MFSC at [REDACTED] and recommended that [REDACTED] receive PT for 45 minutes per session rather than 30 minutes and that [REDACTED] was not able to provide PT for more than 30 minutes. She opined that the District staff was unfamiliar her daughter who experienced multiple [Redacted]s the day (T.1076). She stated that the IEP meeting lasted 3 hours and opined that the CSE team did not consider [REDACTED] and that her daughter was at risk of choking or suffocation at the MFSC at [REDACTED] and stressed that she would keep her daughter home rather than place her at the MFSC at [REDACTED] because there was no way that a single nurse in the class could care for 12 children or even 8 children (T.1080).
She opined that her daughter progressed at [REDACTED] as she was able to stand in a stander for a minute and was able to grab items and that she was unable to accomplish these skills prior to attending [REDACTED] (T.1082). The parent stressed that [REDACTED] would allow [REDACTED] to attend their MFSC with her 1:1 [Redacted] nurse (T.1083;1185).
On cross the parent stated that she participated in the February 28, 2020 IEP meetings as her daughter aged out of HACS for the summer of 2020 and the 2020-201 school year (Exhs. I-J), and that she stated that she wanted to find a safe place for her daughter and that she researched a Jewish school, [Redacted] and [Redacted] in [Redacted] (T.1094) but did not visit [REDACTED] because she was not offered a chance to visit unlike the [REDACTED] staff who offered her an opportunity to visit the program (T.1095). She stated that there was no way to visit [REDACTED] when the pandemic started in March 2020 (T.1099). She stated that after her daughter was placed in [REDACTED] as a pendency program there was no reason to visit [REDACTED] during the 2020-2021 or 2021-2022 school years (T.1100). She reiterated that she would keep her daughter home without services rather than place her at the District as it was not safe as she required her 1:1 private nurse with her at all times (T.1101;1122). She stated that if she did not prevail in this matter, she appeals, and her daughter will attend [REDACTED] on pendency because she was happy with [REDACTED] as her daughter progressed (T.1105). She stated that she would never consider visiting the MFSC at [REDACTED] because her daughter's 1:1 nurse was not allowed in the MFSC and that it was not possible for 1 classroom nurse to attend to 12 or 8 children in the class and would keep her daughter at home without special education or related services (T.1108;1113). She stressed that every school she considered in other districts allowed her daughter's 1:1 nurse into the class except [REDACTED] (T.1109). She stated that she participated in the February 28, 2020 IEP meetings and received the IEPs (Exhs. I & J) and recalled that the team recommended a 1:1 aide to accompany her daughter in class in addition to the nurse but maintained that an aide was not medically trained and would not be able to resuscitate her daughter if needed (T.1111) or administer medication or feed her through her [Redacted] (T.1112).
When questioned whether the parent spoke to other parents whose children attended [REDACTED], the parent stated that the child of the [Redacted] attended [REDACTED] and that the advocate provided her with the name of a parent whose child attended [REDACTED] and maintained that the only issue was that her daughter must have her 1:1 private nurse and that when she requested that her daughter be provided a [REDACTED] bilingual education it was not because her daughter understood [REDACTED] or English, but that she wanted her daughter to have a familiar language in the class (T.1116). She stated that she recalled that after the February 28, 2020 IEP meeting, the Chairperson offered an 1:1 [REDACTED] speaking aide to accompany her in the class; however she was not aware that her daughter's 1:1 nurse would be unable to accompany her to [REDACTED] until September 2020 (T.1118;1120). She stated that she recalled that the chair of the September 21, 2021 IEP meeting offered to provide a 1:1 private nurse in the class to address her safely concerns; however, the parent stressed that [REDACTED] was not the place for her daughter (T.1124). She stated that if the District recommended a 1:1 nurse to be with daughter in the MFSC in [REDACTED], she would not consider [REDACTED] because [REDACTED] was great for her daughter and opined that her daughter progressed at [REDACTED] (T.1124;1131). She stated that after her daughter's nurse called her in September to tell that she was not allowed in the [REDACTED], she told the nurse to bring her daughter home and that she recalled that she spoke to the District Assistant Superintendent and was aware that the Health Coordinator had multiple conversations with her daughter's [Redacted] after September 2021, regarding the nursing issue and agreed that her daughter lived full-time with the [Redacted], but that it was not appropriate for the District staff to communicate with [Redacted] instead of the parent about her daughter's daily needs (T.1136). She stated she never visited the MFSC at [REDACTED] because it was not appropriate (T1137) and that she was aware that there was a nurse in the MFSC at [REDACTED] as part of the program (T.1140) but considered 1 for 14 children or 8 children in the class to be insufficient to safely care her daughter (T.1141). She stated that while the MFSC at [REDACTED] have a classroom nurse, [REDACTED] allowed her daughter's 1:1 [Redacted] nurse to attend her in class and that was the only thing that was important to her (T.1143).
When questioned about her daughter's EEGs (Exhs. B-C) the parent stated that she was told that her daughter had lots of [Redacted]s and that her daughter would not be allowed to leave the hospital without her 1:1 nurse (T.1144) and stressed that her daughter had [Redacted]s constantly (T.1146) and noted when her daughter was in unfamiliar surroundings she would become nervous and would start [Redacted] and that her daughter took 3 different medications to control her [Redacted] (T.1148).
When questioned about the fact that [REDACTED] would receive nursing services to administer the [Redacted] of water, the parent stated that she was not interested in hearing anything in the June 21, 2021 IEP meeting except 1:1 nursing services and that 1 nurse was for 8 to 12 children did not interest her (T.1149). She recalled that there was a discussion in the June 21, 2021 IEP meeting that [REDACTED] had very few [Redacted] in [REDACTED], but that she had her nurse with her at [REDACTED] so she was safe (T.1151). She stated that she was unaware that her daughter's nurse was not recording the [Redacted]s in class, but noted that the number of [Redacted]s should be recorded in a log (T.1152), but that she had not observed the logbook (T.1155). She stated that she did not recall if the [Redacted] mentioned her discussions with the Health Coordinator (T.1156) because she did not consider [REDACTED] in the BIC for her daughter (T.1156). She stated that she never received the evaluations (Exhs. 3-7) until advocate sent them to her during the hearing (T. 1163). She stated she was not aware that [REDACTED]'s nurse and [REDACTED] classroom teacher indicated to the District related service providers that [REDACTED] was able to tolerate 3 evaluations in a single day (T.1164).
When questioned about the amount of [Redacted] nurses, the parent stated that several nurses are needed for 24/7 care and that the agency would send replacement nurses if a nurse sick (T.1168) and that her daughter would not have a nurse for a shift once or twice (T.1170). She stated that she authorized the [Redacted] to be the recipient of all evaluations conducted by the District and to mail the evaluations to the [Redacted]'s address (T.1172-1172;1175;1179). She stated that she did not provide the District with her address because it was important that the District communicate with the [Redacted] because the [Redacted] was involved in the day-to-day activity with [REDACTED] (T.1176).
When questioned on whether she was open to [REDACTED], the parent stated that she only cared that her daughter received a bilingual [REDACTED] education during the February 28, 2020 IEP meeting, and then COVID closed the school until September 2021 when she because aware that her daughter's 1:1 nurse was not allowed to enter [REDACTED], but as her daughter was progressing in [REDACTED] and she was happy with [REDACTED] (T.1182) and that she never brought her daughter to [REDACTED] for a visit (T.1183). She stated that after [Redacted], she considered religious-based schools at [Redacted] and [Redacted], but that neither school were appropriate for medically fragile children (T.1188), but that she only visited [REDACTED] prior to placing her daughter there (T.1190) and that her daughter attended [Redacted] with her nurse for the summer of 2021 (T.1192).
The [REDACTED] Special Education Teacher, a licensed and certified teacher for medical fragile students, ages 5 to 21 and employed by [REDACTED] since 1999, testified that [REDACTED] started in MFSC in class in April 2021 in a class with 9 other students, including [REDACTED] (2 who participated virtually and 7 in person) in a class that was a hybrid of remote and in person (T.1212). She stated that [REDACTED] was similar to the medically fragile students in her class for the 2020-2021 school year as some of the students were [Redacted] fed and were accompanied to class with their private nurse (T.1214). She stated that for the 2021-2022 school year that [REDACTED] was placed in her class with 9 (1 virtual and 8 in person) and that there were 2 nurses in the class as 2 children shared a nurse and [REDACTED] had a nurse (T.1215) and that there were 6 children besides [REDACTED] who had [Redacted] and received daily a [Redacted] of water from their nurses as needed (T.1216;2072-2073). She stated that she had 4 paraprofessionals or teaching assistants (TAs) in addition to the 2 nurses in the class for the 2021-2022 school year and that all the children received related therapy of PT, OT SLT and vision and hearing therapy by providers who pushed into the class (T.1217) and that while the staff to student ratio was 12:1:4, there were only 8 in-person students (T.1222). She stated that [REDACTED]'s daily schedule (Exh. H) indicated that [REDACTED] had OT 3 times per week and PT 4 times per week in addition to the daily morning circle, instructional play, positioning, swimming and specials of art and story (T.1220;1224;1231). She opined that [REDACTED] progressed in the 2020-2021 school year because in April 2021, in she needed full prompts to follow 1-step directions, but by the end of the year she only needed partial prompts (T.1225). She stated that [REDACTED] created an annual report of [REDACTED]'s program for the 2021-2022 school year (Exh. F) dated May 13, 2021, to work in conjunction with the District to develop goals in the IEP meeting for the 2021-2022 school year (T.1226).
The [REDACTED] classroom teacher opined that [REDACTED] progressed in the 2021-2022 school year from September 2021 to November 2021 in her physical development as she progressed in her core development and was able to leave the more secure chair as she no longer needed the harness to strap over her chest and shoulders and no longer needed a strap to keep her hips in place (T.1227). She opined that [REDACTED] made great progress with communication and was able to follow directions by her eye gaze and was now able to enjoy play time and interacting with her peers (T.1228). She stated that [REDACTED] now was able look at a preferred toy and took at a staff member to indicate that she wanted the toy (Id.). She stated that [REDACTED] benefited from the MOVE program (Exh. G) as she was able to tolerate a less restrictive chair (T.1270) and was beginning to walk and to use the toilet (T.1277).
When questioned about her participation in the June 21, 2021 IEP meeting, the [REDACTED] teacher stated that the [REDACTED] goals contained in the Annual Report (Exh. F), but she did not recall the discussion of placement (T.1229) or if any District member asked her for her opinion regarding the appropriateness of the [REDACTED] program (T.1230).
On cross the [REDACTED] classroom teacher stated that she was teaching at [REDACTED] for 12 years and that [REDACTED] was not located in [REDACTED] (T.1234). She stated that there were no mainstreaming opportunities in [REDACTED] (T.1235). She stated that when [REDACTED]'s nurse was not in the classroom, if she was in the bathroom, the [REDACTED] nurse assigned to 2 other children in her class was able to help out with any other student if necessary (T.1237). She stated that [REDACTED]'s [Redacted] nurse always came with [REDACTED] and that [REDACTED] experience a variety of [Redacted]s and when she had a head drop [Redacted] than whoever was closest would put a towel in front of her (T.1239). She stated that [REDACTED] received nursing services of water 3 times a day and noted that 1 of the 4 TAs changed [REDACTED]'s diapers and that [REDACTED] did not have a 1:1 aide in her class and that the TAs were able to place a towel in front of [REDACTED] or feed her (T.1240).
When questioned as to whether [REDACTED]'s [Redacted] nurse recorded the [Redacted], the [REDACTED] teacher stated that from April 2021 to June 2021, there were many different nurses, but from September 2021 to date there were consistent nurses and that sometimes a nurse would record a [Redacted] in a notebook (T.1241). She stated that she was alerted that [REDACTED] was about to seize as she would laugh or start to stare into space (T.1242).
When questioned about her participation in the June 21, 2021 IEP meeting, the [REDACTED] teacher stated that the [REDACTED] principal was also present and that she had an opportunity to speak at the meeting as did the principal and that the cover page of a 12:1:4 MFSC with related services of PT, OT SLT and nursing services was similar to the [REDACTED] 12:1:4 MFSC (T.1247). She recalled that there was a discussion regarding PT and that the District PT provider recommended that [REDACTED] receive PT for 45 minutes and not 30 minutes and opined that it was not a benefit for [REDACTED] as she experienced fatigues after 25 minutes (T.1253). She stated that she did not recall that the [REDACTED] principal told the team that [REDACTED] did not require a 1:1 nurse (T.1256). She explained that she was only familiar with the [REDACTED] 12:1:4 MFSC and had no basis to compare any other MFSC, but opined that the [REDACTED] MFSC was appropriate for [REDACTED] because there was a therapeutic pool and that she was MOVE certified trainer (T.1260) and there were MOVE certified OT and PT providers who while not [REDACTED]'s providers push into her class to give their input (T.1265) and that MOVE provided a certificate after 3 days of training (T.1268).
The [REDACTED] School principal, a licensed teacher for students with disabilities and certified as a school building leader and school district leader and employed by [REDACTED] in his position for the past 6 years, testified that that [REDACTED] was a center-based program for students with developmental disabilities for students aged 5 to 21, technically a public school, but was an agency that provided educational programming for 320 students in 39 classroom (T.1282-1288). He stated that [REDACTED] was accepted in his school in April 2021 and opined that she was similar to other students in the class (T.1289). He stated that he participated in the June 21, 2021 IEP meeting (Exh. 2) with the [REDACTED] classroom teacher and the [REDACTED] school psychologist and recalled a discussion regarding changing the length of the PT session from 30 minutes to 45 minutes, but he recalled that he told the District that [REDACTED] could only provide PT for 30 minutes per session, but stressed that there was no time lost between preparing the child for the PT session as the classroom team would position the child to be ready for PT prior to the start of PT (T.1294). He stated that he did not recall if the team had the [REDACTED] report (Exh. F) at the meeting but recalled that he sent the report to the District staff (T.1296;1298). He recalled that the District staff discussed their program and why they felt the District's program was appropriate and he recalled that the parents disagreed with the District's program (T.1297). He stated that he could not recall any discussion of the [REDACTED] as an option for [REDACTED], but opined that he considered [REDACTED] an appropriate placement for [REDACTED] based on his observation of [REDACTED] and the reports that noted that she exhibited huge growth to be able to sit upright and to go from requiring an activity chair to the ability to sit in a compass chair (T.1301;1303).
On cross the [REDACTED] principal stated that the CSE was able to recommend a [REDACTED] placement if appropriate or their own District placement if appropriate (T.1307). He stated that [REDACTED] did not attend [REDACTED] without her nurse and that she was absent for some days (T.1310). He stated that the June 21, 2021 IEP meeting for about 2 hours and recalled that the parents asked questions and that he and his staff provided with very little input except to note that the Supervisor provided him with the 2019-2020 IEP that they currently followed (T.1314-1315). He stated that he did not feel that he or his staff were given time to speak about [REDACTED] at [REDACTED] at the June 21, 2021 IEP meeting (T.1318). He stated that he did not recall that he stated at the IEP meeting that [REDACTED] did not required a 1:1 nurse (T.1320;1322). He further stated that he did not recall being asked any questions about the appropriateness of the related services mandate for feeding therapy, SLT, OT, PT except he recalled that he told the team that [REDACTED] only provided 30 minutes PT as indicated in the PWN (Exh. 1 at 2; T.1324). He stated that he did not recall a conversation with the Health Coordinator during the CSE meeting regarding the District's program eliminating the need for [REDACTED]'s 1:1 nurse because there was a classroom nurse and [REDACTED] would have a 1:1 aide (Exh.1 at 3;T.1326). He stated that he did not recall a conversation of mainstreaming at the meeting (T.1328).
[REDACTED]'s nurse, a NYS licensed practical nurse ("LPN") presently employed by [REDACTED], testified that she worked with [REDACTED] for 3 days per week for 12 hours per week for 36 hours per week (T.1331;1373;1395). She stated that she worked with [REDACTED] since she lived with her first [Redacted] and then with the current [Redacted] for the past 2.5 years and that she was with [REDACTED] in preschool (T.1333). She recalled that she accompanied [REDACTED] to the [REDACTED] in 2020 but was stopped at the door by a guard and the District's school nurse came outside to talk to ask her to leave [REDACTED] with her and that she called the [Redacted], who told her to bring [REDACTED] home (T.1334). She stated that she was able to accompany [REDACTED] to [REDACTED] in spring of 2020 and opined that over the years that [REDACTED]'s [Redacted] worsened because she observed more [Redacted] in her 12-hour shift (T.1335;1349). She stated that [REDACTED]'s [Redacted] so fast that she could slam her head down on the tray of her stander or desk before she could get a pillow under [REDACTED] (T.1336). She stated that [REDACTED] had 6 or 7 [Redacted] per episode and several episodes per day and that some of the [Redacted] were life threatening and she had to check her breathing and so she puts on a pulse-ox to ensure that the pulse did not drop below 90 or she would take [REDACTED] to the hospital (T.1343). She stated that when she left the classroom there was another nurse to spot her watching [REDACTED] and that the [REDACTED] classroom teacher and the 4 aides were trained to be alert for [Redacted] if she had to leave the classroom for a break (T.1344). She stated that she took notes in a logbook of the time and duration of the [Redacted]s and also administered medication through a [Redacted] and fed her and noted that [REDACTED] was unable to swallow any liquids (T.1353). She opined that it was not safe to leave [REDACTED] in a classroom with a nurse who was responsible for up to 8 children because any of the children could have [Redacted] at any time and then who would watch [REDACTED] (T.1359).
On cross [REDACTED]'s nurse stated that she was with [REDACTED] at the [Redacted]'s house for 2.5 years and was mostly in contact with [Redacted] rather than the parent because she was with [REDACTED] in her house (T.1360) and that when she was unwell then the Agency would send a substitute nurse (T.1361). She acknowledges that [REDACTED] hurt herself at school, but that there were aides in the class who watched her and 4 nurses in the [REDACTED] office (T.1363). She stated that she spoke to a former District aide about the MFSC in [REDACTED] and opined that a single nurse responsible for 8 children in a classroom did not sound safe to her (T.1367). She stated that she provided medication to [REDACTED] at home and that she carried [Redacted] for emergencies (T.1371). She explained that she and the other nurses record [REDACTED]'s [Redacted]s in large 3-ring binder that remained in her bedroom, but that she recorded [REDACTED]'s [Redacted] at school and then recorded them in the binder when she returned to the [Redacted]'s home (T.1372), but that there was limited space on the page to note [REDACTED]'s many [Redacted]s (T.1373). She stated that as an LPN she needed to be supervised by a registered nurse from [REDACTED] Agency and at [REDACTED] there were registered nurse to ask questions (T.1375). She stated that the classroom aides were trained to place a towel in front of [REDACTED] if necessary and were able to change her diaper, but due to her swallowing issues she fed [REDACTED] (T.1378) and that she only ate pureed food (T.1398). She acknowledged that a trained person would be able to feed [REDACTED] so that she does not choke (T.1400;1402). She stated that she contacted on occasion the parent or grandparent when there was an upcoming medical appointment, but she spoke with the [Redacted] everyday (T.1383). She stated that the skilled nursing services she provided were to watch [REDACTED] to catch her if she had a [Redacted] or place a towel in front of her and to provide her a [Redacted] of water and to feed her (T.1413). She stated that [REDACTED] had [Redacted]s on the bus because it was a 45-minute trip (T.1417).
The [REDACTED] Speech and Language pathologist, a certified and licensed special education teacher as well as a Speech and Language pathologist, employed by [REDACTED] for 4 years, testified that she started working with [REDACTED] since spring of 2021 (T.1434-1435). She stated that [REDACTED] was non-verbal, but was able to laugh, cry and vocalize and look at the person speaking (T.1436). She stated that she was working on the current IEP (Exh. 2) and worked with [REDACTED] on speech and language as well as feeding and opined that [REDACTED] progressed in her ability to use her eye gaze to make choices. She stated that she did not participate in the June 21, 2021 IEP meeting, but that she submitted a SLT report as part of the [REDACTED] annual report (Exh. F) dated May 13, 2021 and recalled that she drafted the Communications section and the DLS section (T.1440-1443). She stated that she had observed that [REDACTED] often experience [Redacted]s on a weekly basis, but that she never observed [REDACTED] injure herself during a [Redacted] (T.1441). She explained that [REDACTED] was able to communicate by eye glaze as she would hold up 2 pictures: a picture of food and a picture of a toy and that [REDACTED] was able to indicate that she was hungry by looking that the picture of food (T.1447). She opined that [REDACTED] functioned like the other students in the [REDACTED] class and only socialized by looking at her classmates (T.1450). She explained that sometimes [REDACTED] [Redacted] while she was being fed and that she stopped feeding [REDACTED] and removed the food and put a towel in front of her in case her head fell (T.1452). She stated that she never observed [REDACTED] choke on food during a [Redacted] and that [REDACTED] only ate soft foods but opined that it was possible for [REDACTED] to choke on food during a [Redacted] (T.1453-1454).
On cross the [REDACTED] Speech Pathologist stated that she was not familiar with the District's MFSC in [REDACTED] and noted that she was not familiar with the IEP (Exh. 2) date June 21, 2021, but after reviewing the SLT goals she opined that they were adequate and that the goal to demonstrate the emergence of an up and down motion on a chewy tube was an adequate feeding goal (T.1459). She stated that she observed [REDACTED]'s nurse providing [REDACTED] [Redacted] feedings and that there were 1:1 aides in the [REDACTED] class, but she was not sure if [REDACTED] had a designated 1:1 aide (T.1463).
The [REDACTED] licensed PT assistant (PTA), testified that she was presently employed by [REDACTED] since 2018 and that as a PTA, who completed a 2-year associate program and was supervised by a licensed physical therapist (T.1470;1483;1494). She stated that she began to provide PT to [REDACTED] in April 2021 and was currently her PT provider 4 times per week for 30 minutes per session in the classroom (T.1471). She stated that she started the session with stretching and then progressed to weight bearing and then standing in a [Redacted] and that recently [REDACTED] started to work on taking steps reciprocally (T.1472). She described that [REDACTED] loved the pool and that she worked on [REDACTED] by kicking with weights in the pool (T.1472). She opined that 30 minutes of PT was appropriate for [REDACTED] because she would lose interest or fatigue after 30 minutes (T.1474). She stated that she observed [REDACTED]'s [Redacted]s were first head drops and that she was never injured during a [Redacted] as she always a person next to her to put a soft towel in front of her head (T.1475). She described the MOVE program at [REDACTED] as Movement Opportunity Via Education that was intended to move the child throughout the day so that students experience different positions throughout their education by doing activities in standers or by sitting in a [Redacted] chair and to stretch out on the floor on a mat or to play with toys while standing (T.1476). She described a pea pod as a positioning tool, like a bean bag, and was elevated so that she was able to bring [REDACTED] to a table to sit up and be part of a group and used the pea pod to relieve pressure (T.1477). She stressed that the staff, the teacher, aides and [REDACTED]'s nurse were trained in how to place [REDACTED] in a stander and explained the PT area in the classroom had low bench to do stretches and that there was a gym with stairs, bus stairs and rocking boards to work on balance and foam mats (T.1478). She stated that there was a hallway dedicated to sensory needs and the wall had toys mounted that encouraged touching, spinning, squeezing and that a team of related service providers developed the toys to work on fine and gross motor skills and that there was a sensory playground with a jungle gym that was wheelchair accessible and a bridge with railings and steps with adaptive swings and a teeter-totter that allowed a child to fall onto a soft mat (T.1481). She opined that [REDACTED] was similar to the other children in her class as other children were beginning to learn to walk and use a [Redacted] (T.1482). She described [REDACTED]'s progress from September 2021 to date was her ability to move from an [Redacted] chair with laterals on all sides to a [Redacted] chair with just a seat belt for safety (T.1484) and that she progressed in her ability to use a reciprocal gait trainer (T.1486) and opined that [REDACTED] had the developmental ability of a 10-month-old child (T. 1487). She further opined that [REDACTED] was not able to tolerate a PT session for 45 minutes because had a difficult time enduring 30 minutes (T.1497) and that no one from the District's CSE contacted her for her opinion on when a 45-minute PT session was appropriate (T.1499).
On cross the [REDACTED] PTA stated that she had never worked for the District nor visited the MFSC at [REDACTED] (T.1488). She opined that the playground was appropriate for medically fragile students such as [REDACTED] and that she observed that [REDACTED] made progress under the IEP (T.1490). She explained that she observed [Redacted]s during her sessions and that she did not observe [REDACTED]'s nurse provide any medical procures except to provide a safe space and make notes and observe [REDACTED]'s breathing (T.1491). She stated that when [REDACTED] had a strong [Redacted], then her [Redacted] and she [Redacted]. She stated that at that time [REDACTED] would be taken out of the [Redacted] by the classroom staff or [REDACTED]'s nurse (T.1492). She explained that she provided PT to [REDACTED] 4 times per week for 30 minutes and that the MOVE strategy built into the program throughout the day was a bonus for [REDACTED] (T.1493).
The [REDACTED] licensed and certified OT assistant, ("OTA"), a person who completed 2 years of schooling to obtain an Associate's degree as an OT assistant and was supervised by a licensed and certified OT provider and was employed by [REDACTED] since 2019, testified that she had worked with [REDACTED] since September 2021 to date (T.1502). She stated that she was working with [REDACTED]'s hands twice per week to strengthen her fine motor skills and explained that [REDACTED] was very tactile defensive and did not like to be touched and that she worked with [REDACTED] in the classroom with toys and squishy things and a water mat and she opined that [REDACTED] made gradual progress and that noted that she had not observed [REDACTED] experience a single [Redacted] since September 2021 (T.1504).
On cross the [REDACTED] OTA stated that she did not recall that [REDACTED]'s nurse provided emergency treatment to [REDACTED] when she had a [Redacted] by taking her blood pressure or blood oxygen level or take notes but did observe that the nurse or an aide would place a towel in front of [REDACTED] (T.1506-1507).
[Redacted], M.D. and employed by [Redacted] Health Center for the past 9.5 years, testified that she was [REDACTED]'s doctor at least once a year since 2019 for wellness visits and when she was sick (T.1525). She described [REDACTED] syndrome as a severe progressive [Redacted] disorder, in which [REDACTED] had active [Redacted] throughout the day and that [REDACTED] also had global developmental delay in her speech, motor skills and cognition (T.1518). She further described the [REDACTED] Syndrome was different than other disorders in some sufferers of [Redacted] experienced stability between [Redacted], but [REDACTED] was actively seizing several times throughout the day and that this disorder prevented her from being able to develop normally (T.1522). She stated that the reason the disorder was progressive was not because the [Redacted]s were progressively worse, but because the [Redacted] progressively inhibited [REDACTED] from developing properly (T.1523) and that regardless of whether the [Redacted]s increased from 2019 to 2020 as her baseline was severe (T.1556).
After reviewing her letter of February 22, 2020, (Exh. 10), Dr. [Redacted] stated that [REDACTED] had a wide variety of [Redacted] and with head drops, stiffness, hand stretching, pill rolling that were all abnormal movements and that [REDACTED]'s [Redacted] should be recorded to monitor the side effects of her new medication to control the [Redacted]s (T.1529). She opined that [REDACTED] required 1:1 nursing because she needed a medical professional to monitor her because she was medically fragile (T.1530). She further opined that a teacher's assistant or a paraprofessional could not replace a nurse because they were not medically trained to care for her to ensure her safety (T.1531). Dr. [Redacted] stated that 80 [Redacted] as noted in the EEG dated February 5, 2019, to February 6, 2019, indicated that [REDACTED] was medically fragile and required monitoring throughout the day (T.1532).
On cross Dr. [Redacted] opined that [REDACTED] required her own nurse as she required 1:1 nursing support throughout the school day and that a single nurse responsible for 8 children would not be sufficient nursing care (T.1541). She stated that she was experienced with special education services for medical fragile students because she had spoken with educators in MFSCs and did not recall if she spoke with a staff member of the MFSC in [REDACTED] and that she did not visit the MFSC in [REDACTED] (T.1546). Dr. [Redacted] stated that the parent requested a letter (Exh. 10) because the parent wanted her daughter to attend student with her own 1:1 nurse and she wanted the [Redacted] to have specific instructions on how to care for [REDACTED] (T.1548;1565) and that the main reason that [REDACTED] required 1:1 nursing services was her concern for [REDACTED]'s [Redacted]s because the [Redacted] were subtle such as eye twitching, shoulder shrugging or laughing (T.1550) and if [REDACTED] choked while eating, she needed someone medically trained to remove the food from her mouth (T.1551). She opined that she would not be comfortable if a nurse trained an 1:1 licensed teacher's aide or a speech pathologist or special education teacher to place a pillow or a soft towel in front of [REDACTED] when she had a [Redacted] so that her head would not drop onto a hard surface (T.1552). She stressed that at date [REDACTED] needed her own 1:1 nurse and there was no reason to remove her 1:1 nurse (T.1559) to ensure that during [Redacted] that [REDACTED] did not choke on food and did not hurt herself and needed to monitor the length and duration of [Redacted]s (T.1561) and that [REDACTED] required a medically trained nurse rather than a trained individual (T.1568).
[REDACTED]'s NYS licensed and certified nurse practitioner and employed by [REDACTED] Center for over 10 years, testified that she was able to prescribe medications and interpret EEGs and that she had known [REDACTED] since May 2016 (T.1774). She stated that [REDACTED] syndrome caused severe impairment to an individual as the [Redacted] were difficult to control (T.1775). She reviewed the September 7, 2020, to September 9, 2020, EEG (Exh. B) and stated that the EEG was very active with 85 [Redacted] form September 7, 2020, to September 8, 2020, and 89 [Redacted] from September 8, 2020 to September 9, 2020 (Exh. B at 2) with frequent [Redacted] and [Redacted] and an abundance of [Redacted] discharges that were separate from [Redacted] and opined that given the amount of medication that [REDACTED] was on that she was very medically refractory to medication (T.1776). She stated that [REDACTED] was currently on 3 anti [Redacted] medications and explained that [Redacted] were where the body stiffened and that [Redacted] did not cause the body to stiffen (T.1779) and an [Redacted] was a brief stare and that [Redacted] were dangerous as the person could fall and had the potential to choke (T.1782). She stated that [REDACTED] had [Redacted] as a baby that developed into [REDACTED] syndrome over time and that [REDACTED] had [Redacted] or low tone and [Redacted] or [Redacted] (T.1878). She stated that she agreed with Dr. [Redacted]'s recommendation (Exh. 10 at 2) that [REDACTED] required 1:1 nursing and opined that it would not be safe for [REDACTED] to share a nurse with another student in a MFSC (T.1797). She stated that she treated [REDACTED] from 2016 to date and opined that [REDACTED] had a progressive [Redacted] disorder and that she received 3 anti-[Redacted] medications and an intravenously given [Redacted] once a month to control the [Redacted] (T.1800;1804). She stated that [REDACTED] had neither [Redacted] nor [Redacted] as these terms were outdated, but that [REDACTED] did not experience [Redacted] or a [Redacted] but did experience [Redacted] and [Redacted] that fell under the generalized pattern of a [Redacted] (T.1804).
On cross the nurse practitioner stated that [REDACTED] required full care in her activities of daily living and that she needed more intensive care if she had a [Redacted] and choked in a room with 8 other medical fragile children and opined that a 1:1 nurse was qualified to care for [REDACTED] and a 1:1 aide was not qualified (T.1809). She stated that [REDACTED] could become cyanotic and choke on her own saliva (T.1810) and based on her 5 years of caring for [REDACTED] that she required 1:1 nursing care 24/7 (T.1819).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Under the Individuals with Disabilities in Education Act ("IDEA"), New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student, but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that 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, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child 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. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful, i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).
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. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. 34 C.F.R. § 300.320(a)(1), (a)(4); 8 NYCRR 200.4(d)(2)(i), (iii), (v). The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. In Application of the New York City Dept. of Educ., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performances; 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student], establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)." The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education.N.Y. Educ. Law §4404[1][c].
The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education"(Walczakv. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).
The Parents asserted that the June 21, 2021 IEP was procedurally and substantively defective (Exh. I at 4) and requested an Order to fund the placement at the MFSC at the [REDACTED] with related services of 1:1 SLT 3 times per week for 30 minutes per session; 1:1 PT 4 times per week for 30 minutes per session and 1:1 OT 3 times per week for 30 minutes per session (Exh. I at 6).
The District asserted that the June 21, 2021 IEP developed for the 2021-2022 school year a highly individualized special education program that appropriately addressed her academic, communication, feeding, physical, DLS and medical needs in the least restrictive environment ("LRE") (Exh. IX at 3).
Claims concerning the scope of the review:
The District moved to dismiss the due process complaint, denied the allegations and sought to deny the relief. The District asserted that the scope of review was limited to issues raised in the due process complaint. I note that the SRO held in Application of the Bd. of Educ., Appeal No. 11-134: "It is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party [Redacted] (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]; see M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, *12-*13 [S.D.N.Y. Dec. 16, 2011]; C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722,*13 [S.D.N.Y. Sept. 22, 2011]; R.B. v. Dep't of Educ. of City of New York, 2011WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011]; W.M. v. Lakeland Cent. Sch. Dist., 2011 WL 1044269, *8 [S.D.N.Y. Mar. 10, 2011]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *8 [S.D.N.Y. Aug. 27, 2010]; Application of the Bd. of Educ., Appeal No. 11-111; Application of a Student with a Disability, Appeal No. 11-100; Application of a Student with as Disability, Appeal No. 11-008; Application of a Student with a Disability, Appeal No. 11-042; Application of the Bd. of Educ., Appeal No. 11-038)." The District asserted that the parents argued at that the hearing, but failed to allege in their complaint, among other things, that the CSE engaged in predetermination (Exh. IX at 26), and that only issue to be determined was [REDACTED]'s placement for the 2021-2022 school year (Exh. IX at 4). I find that the word "shoehorned" and the word "shoe horning" was asserted in the due process complaint (Exh. I at 3, 5) and I find that "shoehorned" or "shoe horning" as asserted in the due process complaint (Exh. I at 3,5) is essentially predetermination.
The District maintained that this case was a FAPE case and not a tuition reimbursement case/direct funding case for the parents' unilateral placement at [REDACTED] in the spring of 2021. The District asserted in the Pendency Agreement (Exh. III at 1) that while the District agreed to place [REDACTED] at [REDACTED] under pendency that per Concerned Parents and Citizens v NYC Bd. of Educ., 629 F.2 751 (2d Cir., 1980), the District was not required to maintain the then current educational placement during the pendency of this proceeding as it only required the same general type of educational program and it was up to the District to decide how to provide the general type of education program as long as it was "'substantially and materially the same' as the student's program was from prior year" (Exh. III at 1-2;T.100;108). The District asserted that the request for funding to continue the pendency placement at [REDACTED] was outside my jurisdiction and that I even if I found that FAPE was not provided I could not consider the parents' request to continue [REDACTED]'s placement at [REDACTED] for the 2021-2022 school year and I could not consider the 3-pronged test of the Burlington/Carter and I could not consider the appropriateness of [REDACTED] (T.102-103;259).
The District asserted that I must decide whether [REDACTED] received a FAPE and to determine that the IEP was appropriate by the standard "as confirmed by the Supreme Court in the Endrew F. decision, an IEP should be deemed appropriate if it is reasonably calculated to enable the student to make progress that is appropriate in light of her disability" (Exh. IX at 6) and maintained that the June 21, 2021 IEP was appropriate in the LRE (Exh. IX at 7-27).
The parent's advocate asserted that she must put on her case as whether that the parents' burden to show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]).
The parties agreed that I must make findings of fact and conclusions of law as to whether the District provided FAPE in the LRE for [REDACTED] in the June 21, 2021 program and placement, and that I must make findings of fact and conclusions of law regarding funding [REDACTED]'s current placement at [REDACTED] for the conclusion of the 2021-2022 school year as part of my equable powers (T.255;1755-1759).
Claim concerning that the June 21, 2021 IEP was substantively defective as [REDACTED] required 1:1 nursing care at all times and not a 1:1 aide with a nurse in the MFSC at [REDACTED] program:
There was no dispute that [REDACTED] was medically fragile requiring health services or nursing services as a related service in order to receive a FAPE.
The parents' advocate maintained that [REDACTED] required full-time nursing care through the District or through [Redacted] and that the MSCS at [REDACTED] and to not allow [REDACTED]'s [Redacted] nurse to be with her in school was not appropriate or safe for [REDACTED] (Exh. X at 6). The parents' advocate alleged that 15 minutes of skilled nursing services in the classroom 3 times per day was not appropriate or safe as [REDACTED] who had potentially life-threatening [Redacted] and that providing an 1:1 aide who was not a medical professional would be dangerous to [REDACTED] without a fulltime 1:1 nurse and that a classroom nurse in a class for up to 12 medically fragile children was especially dangerous (Id.).
The District's attorney asserted that there was no indication that the District omitted any necessary services from the June 21, 2021 IEP regarding the student's medical concerns as the "CSE had access to Dr. [Redacted]’s order, its own evaluations, and input from the [Redacted] team and Parents to identify the Student’s medical and nursing needs. This included two observations of the Student conducted by the District’s Coordinator of Health Services" (Exh. IX at 17). I find that the District failed to address [REDACTED]'s medical issues as outlined by Dr. [Redacted]'s letter. I find that skilled nursing services 2 times daily in the special class for 15 minutes (for administration of a [Redacted] of water) and a 1:1 aide as needed throughout the day in the 12:1:4 MFSC with a class nurse (Exh. 2 at 1) was fewer nursing services than Dr. [Redacted] directed (Exh. 10). I credit Dr. [Redacted]'s testimony and find [REDACTED] syndrome was a severe progressive [Redacted] disorder, in which [REDACTED] had active [Redacted] throughout the day and that [REDACTED] also had global developmental delays in her speech, motor skills and cognition (T.1518) and that [REDACTED] syndrome was different than other disorders in that some sufferers of [Redacted] experienced stability between [Redacted], but [REDACTED] was actively seizing several times throughout the day and this disorder prevented her from being able to develop normally (T.1522). I further credit her testimony and find that regardless of whether the [Redacted]s increased from 2019 to 2020, [REDACTED]'s baseline was severe (T.1556). I credit her testimony and find [REDACTED] required 1:1 nursing service because she needed a medical professional to monitor her because she was medically fragile (T.1530). I credit her testimony and find that a teacher's assistant or a paraprofessional could not replace a nurse because they were not medically trained to care for her to ensure her safety (T.1531).
The District's attorney asserted the "Student's [Redacted] nurse agreed that non-medical classroom staff can be trained to address the Student's needs, including feeding the student, placing a towel down when needed, changing the Student, and identifying when the Student has a [Redacted]. Tr. 1344-1345; 1412-1413; 1375-1379; 1398-1400" (Exh. IX at 17). I find that the lack of medical treatment observed by the District's nurse and the testimony regarding the lack of observed medical treatment did not evidence that a paraprofessional or special education teacher could provide emergency medical treatment when needed. I credit the testimony of District's nurse who described different types of [Redacted] and that observed that [REDACTED] experienced [Redacted] that made her head drop and [Redacted] like [Redacted] or [Redacted] that involved [REDACTED] staring (T.208). The District's attorney asserted that the "embedded full-day nursing services for the eight students in the class, and a 1:1 aide for the Student to attend to her non-nursing daily living and other needs. Tr. 226; 231-233; 313-314" and that there were "skilled nursing services available in the classroom at all times and three times daily for the Student's [Redacted] feedings. Ex. D-2 at 10; Tr. 351-352; 355. The PWN notes that the [REDACTED] program has a nurse devoted to the medically fragile class and three nurses available within the building. Ex. D-1 at 2-3" (Exh. IX at 15). The District attorney argued that "classroom nurse would supervise and train all of the classroom staff to identify and address the Student’s [Redacted]. Tr. Tr. 215; 237-238. This includes the placement of a towel should the Student experience a head drop [Redacted]. Tr. 844-848; 1239; 1453-1454; 1506"(Exh. IX at 17). The District's attorney asserted that the "Supreme Court revisited the question of school health and nursing services in Cedar Rapids Community School District v. Garrett F., 526 U.S. 66, 119 S.Ct. 992 (1999). In that case, the student ambulated using a wheelchair, was dependent upon a ventilator, and required catheterization, suctioning of his tracheotomy tube, ventilator maintenance, and emergency assistance at times in school. The Supreme Court re-affirmed the guiding principle that supportive services required for a student to attend school that can be provided by a nurse or qualified layperson are required under the IDEA. " (Exh. IX at19-20).
I am not persuaded that the District's existing health personnel of a classroom nurse, 2 nurses nearby as well as a trained special education teacher and a trained 1:1 aide were sufficient supportive services to meet [REDACTED]'s medical needs to replace the [REDACTED]'s private [Redacted] nurse. I do not find that classroom nurse in the class of 8 medically fragile children with a trained special education teacher and a trained 1:1 was sufficient nursing services in the event that [REDACTED] had a [Redacted] that was not noticeable. I find that failure to provide 1:1 nursing service by a nurse who was able to recognize that [REDACTED] was experiencing a [Redacted] without any visible signs of a [Redacted] and acting to prevent choking or a blow to the head could have possible fatal consequences. I credit the testimony of [REDACTED]'s nurse practitioner who interpreted EEGs (Exhs. B-C) who stated that she had treated [REDACTED] since May 2016, and that [REDACTED] had neither [Redacted] nor [Redacted] as these terms were outdated, but did experience [Redacted] and [Redacted] that fell under the generalized pattern of a [Redacted] (T.1804) and stated that [REDACTED] required full care in her activities of daily living and that she needed more intensive care if she had a [Redacted] and choked in a room with 8 other medical fragile children and opined that an 1:1 nurse was qualified to care for [REDACTED] and an 1:1 aide was not qualified (T.1809). I further credit her testimony and find that [REDACTED] could become cyanotic and choke on her own saliva (T.1810) and I credit her opinion testimony that based on her 5 years of caring for [REDACTED] that she required 1:1 nursing care 24/7 (T.1819).
Therefore, I find the District failed to establish that a FAPE was provided to [REDACTED] during the 2021-2022 school year as I find that [REDACTED] required a 1:1 nurse in the MFSC at [REDACTED].
The parents claim that the June 21, 2021 IEP procedurally defective and alleged that there were numerous procedural errors during the IEP process that caused a denial of FAPE for the student. A procedural violation can rise to the level of substantive harm if it (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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].
Procedural Claim of the refusal to consider the current [REDACTED] placement and the denial of parental participation The parents' advocate asserted that the CSE never considered the parents' request to a continue to fund the current placement at the [REDACTED] 12:1:4 MFSC from spring 2021 to date as the IEP recommended the same program that the parents rejected in the 2020-2021 school year. The parents' advocate argued that [REDACTED] was "shoehorned" into the same rejected IEP program for the 2020-2021 school year (Exh. I at 3). The parents' advocate argued that at onset of the meeting the Chairperson stated this meeting was not to compare the pendency placement at [REDACTED], with the 12:1:4 MFSC at [REDACTED] and was not appropriate or safe for [REDACTED] (Exh. I at 4).
I find that the District was required to notify the parent under 8 N.Y.C.R.R. § 200.5[a], as to why the District refused to consider the pendency placement in the PWN except to note that [REDACTED] was the LRE and home district offered a program to meet [REDACTED]'s educational, social, physical management and safety needs (Exh. 1 at 3).
The procedural violation alleged was that the decision to refuse to consider the current [REDACTED] placement and the allegation that this decision was made before the CSE meeting as described as "shoe-horning" and was an instance of predetermination and predetermination was, as the parents' advocate asserted, a denial of a FAPE (Exh. X a 11-16).
The parents' advocate asserted that the parent, grandparent and [Redacted] strongly disagreed with the [REDACTED] in district placement and asked the team to consider continuing the placement at [REDACTED], but the team refused to consider their request and that the parents were denied meaningful participation in the IEP and placement (Exh. I at 5-6).
The District stated that "Parent and her team were significant contributors to the meeting. Tr. 1078; 1747-1748. The individual notes taken by various CSE members demonstrate that the Parent’s input was solicited, and she participated during the meeting. Exs. D-12, D-13; D-14; Tr. 869-872; 1633-1648"(Exh. IX at 26).
The parents' advocate asserted that "the IDEA effectively requires that school-based team members enter an IEP meeting with an open mind. It’s OK for team members to have opinions. But they need to be ready and willing to listen to and consider what the parent has to say about the child’s needs" (Exh. X at 13).
In Application of a Student with a Disability, Appeal No. 21-216, the SRO held: "While the parents did not agree with the CSE's ultimate recommendations, disagreement with a proposed IEP does not amount to a denial of meaningful participation (see T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 [S.D.N.Y. July 30, 2015]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, 'even if the [district] ultimately decides not to follow the parents' suggestions'])."
I find the District witnesses recorded in the meeting notes that the CSE was open to the pendency placement as requested by the parents (T.183-184; T.816;907; Exhs. 12 at 2; 13 at 2). I find that the June 21, 2021 CSE team was aware of the parent's request to keep [REDACTED] at [REDACTED] for the 2021-2022 school year at the start of the meeting because the parent and her advocate raised safety concerns regarding the placing [REDACTED] at the MFSC at [REDACTED] without her [Redacted] nurse (T.1644).
The District's attorney asserted that the MFSC at [REDACTED] as "approved by the New York State Education Department, was developed by the District to educate its medically fragile students within the least restrictive setting. Tr. 37-39; 454-455. Although the classroom is a 12:1+4, there are never more than eight students in the class. Tr. 37; 148-149; 162-163; 828. The classroom includes a full-time nurse dedicated to the class, a full-time certified special education teacher, three aides, and a teaching assistant. Tr. 32-39" (Exh. IX at 9). I credit the District's witnesses' testimony and find that they believed that the MFSC at [REDACTED] was superior to MFSC at [REDACTED] because while both MFSC programs were NYS approved programs for medical fragile students, the MFSC at [REDACTED] was the LRE, in her home zone and by law the MFSC at [REDACTED] must be the recommended program (Exh.1 at 2;T.19;21;45;78-81;148;816;821;939;1720).
I do not credit the testimony that the team considered the parent or the parent's advocate's request to continue the placement at [REDACTED] at any time during the June 21, 2021 IEP meeting. I further find that the District's witnesses believed that [REDACTED]'s nursing needs would be met by the classroom nurse in the MFSC at [REDACTED] and that [REDACTED] was safe. I credit the testimony of the District's nurse who participated in the June 21, 2021 IEP meeting and agreed with the group to recommend a nurse in the classroom and opined that the program would be able to meet [REDACTED] medical needs safely. I credit the District's nurse who agreed with the recommendation of a 1:1 aide to assist [REDACTED] at [REDACTED] (T.230-231;303). I do not find that the CSE team considered continuing to fund the current placement at [REDACTED] during the June 21, 2021 IEP meeting.
I find that there was inconsistent testimony regarding the participation of the [REDACTED] staff. I find the District Supervisor stated that at no time during the June 21, 2021 IEP meeting did the [REDACTED] staff disagree with the CSE recommendations (T.1729). I find that the testimony of the [REDACTED] staff established that the [REDACTED] staff were not in agreement with the recommendations of the program recommended by the CSE. I credit the testimony of the [REDACTED] special education teacher, who participated in the June 21, 2021 IEP meeting and who did not recall that the [REDACTED] principal told the team that [REDACTED] did not require an 1:1 nurse (T.1256). I find this testimony contradicted the PWN (1 at 3) that indicated that the [REDACTED] principal agreed that [REDACTED] did not need her own individual nurse. I credit the testimony of the [REDACTED] principal who participated in the June 21, 2021 IEP meeting and stated that the District staff discussed their program and why they felt the District's program was appropriate and that he recalled that the parent disagreed and that he did not recall any discussion of the [REDACTED] program and that there was no consideration of the parent's objection to the District's program (T.1297;1299;1301) and that he could not recall any discussion of the [REDACTED] as an option for [REDACTED], but opined that he considered [REDACTED] an appropriate placement for [REDACTED] based on his observation of [REDACTED] and the reports (T.1303). I further find the record indicated that the [REDACTED] principal agreed with the change in PT to 45 minutes (Exh. 1 at 1; T.862), yet the [REDACTED] principal did not agree as he considered 30 minutes of PT appropriate (T.1294). I further credit the [REDACTED]'s principal's testimony and find that while he and his staff participated for 2.5 hours in the June 21, 2021 IEP meeting, the [REDACTED] staff had "very little" opportunity to ask or raise questions (T.1314).
I find the decision to place [REDACTED] in the District's program and not to consider the [REDACTED] placement was made prior to the June 21, 2012 CSE meeting and was made without input from the parent and [REDACTED] staff. I find the procedural violation alleged in this case met the criteria for determining when procedural inadequacies constitute a deprivation of a FAPE as the predetermined decision to place [REDACTED] in the District’s program "impeded [REDACTED]'s right to FAPE". I also find the predetermined decision to not consider [REDACTED]'s pendency program "significantly impeded the parents' opportunity to participate in the decision making process" because the parent was not included in the decision that was made prior to the June 21, 2021 IEP meeting.
Procedural Claim regarding the change in the PT mandate:
The parents' advocate asserted that the change in the PT mandate was to foreclose [REDACTED] as a possible placement as it would be unable to schedule 45-minute session (Exh. I at 4).
The parents' advocate argued that the team changed the PT duration to 45 minutes per session with full knowledge that the [REDACTED] 12:1:4 MFSC was unable to schedule 45-minute PT sessions (Id.). The parents' advocate stated that the parents did not agree to the change in duration of the PT sessions for 30 minutes to 45 minutes (Id.).
The District asserted that during that the CSE considered "full reevaluations conducted by the District and input from the Parents and the Student’s then-current providers at [Redacted], placed the Student in the District’s 12:1+4 medically fragile special class at [REDACTED]. Exs. D-1; D-2" (Exh. IX at 4).
Testimony adduced at the hearing established that CSE reviewed and relied on the OT Annual Review report (Exh. 5) and the PT Annual Review report (Exh. 6). I find that the June 21, 2021 CSE reviewed and utilized them. The District asserted that their "physical therapist recommended two 45-minute and one 30-minute weekly physical therapy sessions for the Student. Ex. D-2 at 9-10; Tr. 145-147; 652" (Exh. IX at 13) and that the 120 minutes of weekly PT matched the four 30 minutes session at [REDACTED] (Id). In addition, the District argued that "an additional two hours and thirty minutes of physical therapy support [is] integrated into the Student’s classroom each week. Ex. D-2 at 10; Tr. 668; 856-869" (Id.)
I find that related services must meet [REDACTED]'s unique needs and be reasonably calculated to enable her to make progress appropriate in light of the child's circumstances. ("see Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S., 2017 WL 1066260, at *11-*12 [Mar. 22, 2017] [holding that the IDEA 'requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances'" (Exh IX at 15). I find that the addition of PT integrated into the class was not mandated for [REDACTED] but was intended to benefit the class and cannot be added to the amount of PT that CSE recommended for [REDACTED]. I further find that the change in PT was made without consulting [REDACTED]'s then-current PT [REDACTED] providers. I find the change in PT duration from 30 minutes to 45 minutes was noted in the PWN as the District's PT recommended PT 2 times per week for 45 minutes to be more effective and that [REDACTED] could make more progress during longer session (Exh 1 at 2). I credit the testimony of the District PT and find that when she evaluated [REDACTED] and wrote her PT Annual Review Report that she did not speak to [REDACTED]'s then-current [REDACTED] PT provider and that she recommended the change based on her professional judgment as it took a lot of time to position [REDACTED] in different devices and so she thought that a longer PT session would be beneficial (T.145;Exh. 14 at 1).
I find that the IEP indicated the supports of 1) access to 1 hour gait trainer, 2) access to an adapted stander once daily for 2 hours and 3) access to adaptive seating once daily (Exh. 2 at 10). I find these recommendations were inconsistent with [REDACTED]'s current physical abilities to stand and her current inability to withstand more than 30 minutes of PT.
I credit the testimony of the District Supervisor, who stated that it would be important to hear from [REDACTED]'s [REDACTED] PT provider prior to changing the mandate from 30 minutes to 45 minutes as part of the multi-disciplinary team and that the District's PT provider was able to change PT duration (T.1652). I find this change was made without input of the anyone who had personal knowledge of the ability of [REDACTED] to tolerate 45 minutes of PT.
I credit the testimony of the [REDACTED] special education teacher who participated in the June 21, 2021 IEP meeting and recalled that there was a discussion regarding PT and that the District PT provider recommended that [REDACTED] receive PT for 45 minutes and not 30 minutes, and opined that it would not benefit [REDACTED] as she experienced fatigue after 25 minutes (T.1253). I credit the testimony of the [REDACTED] principal who participated in the June 21, 2021 IEP meeting and informed the team that [REDACTED] received 30 minutes, but that time did not included the time it took to place [REDACTED] in position as only PT provided to [REDACTED] was counted in the 30 minutes (T.1294). I credit the testimony of the then-current PT [REDACTED] provider who opined that 30 minutes of PT was appropriate for [REDACTED] because she would lose interest or fatigue after 30 minutes (T.1474). I further credit her testimony and that [REDACTED] was not able to tolerate a PT session for 45 minutes because she had a difficult time enduring 30 minutes (T.1497) and I credit her testimony that no one from the District's CSE contacted her for her opinion on whether a 45-minute PT session was appropriate (T.1499).
I credit the testimony of the parent and find that input from the parent and [REDACTED] special education teacher, and [REDACTED] principal who participated in the June 21, 2021 IEP was irrelevant to the decision to change the PT mandate from 30 minutes to 45 minutes. While [REDACTED]'s related service providers were not mandated members of the IEP team I find that there was no input from [REDACTED]'s then-current PT provider who was knowledgeable about [REDACTED]'s inability to tolerate PT sessions longer than 30 minutes.
I credit the testimony and evidence and find that the decision to change the PT duration from 30 minutes to 45 minutes did not match [REDACTED]'s functional level of a 10-month-old (T. 1487) in terms of her physical ability or her developmental level of an 18-months (Exh. 2 at 4). I find that [REDACTED] performed 2 standard deviations below her age level (T.153) and that based on the ABAS that [REDACTED] performed to the level of an [Redacted] (T.164).
I find the decision to change the PT mandate was made after a single evaluation assessing [REDACTED]'s ROM and utilizing the PDMS-2 (Exh. 6 at 2). I find that the PT evaluation was conducted on [REDACTED], who was not able to be assessed while standing as she had outgrown her ankle orthotics (Exh. 12 at 1). I find that the CSE had insufficient information to establish that [REDACTED] would be able to tolerate 45 minutes of PT. I find the change in duration of PT from 30 minutes to 45 minutes did not meet [REDACTED]'s unique needs and did not provide FAPE.
Claims concerning the lack of appropriate goals and the lack of a feeding goal:
The parents' advocate argued that the June 21, 2021 IEP was based on available District programs and not based [REDACTED]'s specific needs and that the IEP's goals were insufficient, vague and lacked benchmarks and that there was no feeding goal and that the IEP goals did not address [REDACTED]'s inability to lateralize food in her mouth or chew on food and did not note that [REDACTED] might have a [Redacted] during mealtime (Exh. I at 5).
I find that CSE did not consider the parent's input in developing the IEP goals nor did the CSE involve the parent in the development of the goals by the chain of e-mails (Exh. 15), dated August 2, 2021 between the [REDACTED] principal the District's Supervisor who indicated that the parent did not contest the goals. I find that the parent did contest the goals in her July 5, 2021 due process complaint (Exh. I at 5). The parents' advocate argued that [REDACTED] "presents with [Redacted]to swallow food. She does not lateralize food in her mouth nor chew on food. Many times, [[REDACTED]] has [Redacted] during mealtime. This is not addressed in the IEP" (Exh. X at 6). I agree. I find testimony adduced at the hearing established that [REDACTED] had sensory issues as well as feeding issues (Exhs. 9 at 2;2 at 7;T.470-471). I find that the DLS goal to chew on a chewy tube did not adequately address [REDACTED]'s feeding issues or her sensory issues.
Based on the foregoing, I find that the District failed to demonstrate that [REDACTED]'s IEP and program were appropriate for the 2021-2022 school year.
Equitable considerations:
The District asserted that "if it is determined that the Student needs a 1:1 nurse – a determination to which the District strongly objects – it does not follow that it should be ordered that she attend [[REDACTED]] with her [Redacted] nurse. Instead, the proper relief would be to order that the District provide a 1:1 nurse for the Student in the placement that represents the LRE" (Exh. IX at 23).
District's 1:1 nurse for [REDACTED] vs. [REDACTED]'s [Redacted] 1:1 nurse
It is the District's position that my authority is limited to merely ordering a 1:1 nurse for [REDACTED] in the District's 12:1:4 MFSC as it is the LRE and its program is similar to the [REDACTED] 12:1:4 as both are self-contained NYS approved programs for medically fragile children (Exh. IX at 30). I disagree and concur with the District that I have broad equitable powers to fashion a remedy (Exh. IX at 29). I further find that as part of my equitable powers that if I determine that [REDACTED] required a 1:1 nurse, then I could order the District to provide a 1:1 nurse or I could order the District to allow [REDACTED]'s 1:1 private [Redacted] nurse to attend the MFSC at [REDACTED] for the conclusion of the 2021-2022 school year.
There was no dispute that the longer bus ride was problematic for [REDACTED] who could have [Redacted]s on the bus. The e-mail chain from the parent and the Supervisor indicated the problems with [REDACTED]'s [Redacted] nurse's reluctance to ride on the bus (Exh. 16). I find that testimony and evidence adduced at the hearing established that [REDACTED] missed school days at [REDACTED] due to the bus ride and issues with [REDACTED]'s nurse, who was not on the bus (T.188;233;1699;Exh. 9 at 1). I credit the testimony and find that [REDACTED] experienced [Redacted]s on the bus (T.1690). I find that [REDACTED] required 1:1 nursing care in school and on the bus and I find a bus ride for 45 minutes twice a day is arduous for a general education child, and even more so for a medically fragile child.
The advantage of the District's MFSC is that [REDACTED] would not have to endure a long bus ride. I find that the District acknowledged that it could provide a 1:1 nurse for [REDACTED], but would not allow [REDACTED]'s [Redacted] nurse in the school (T. 233). I find that the testimony and evidence established that the parent wished her daughter's [Redacted] nurse to accompany her daughter to school as recommended by her daughter's doctor (Exh. 10 at 1) and I find that her daughter has had private nursing care 24/7 since the age of 6 months (T.1037-1039). I find that it would be helpful and meaningful to have the [Redacted] nurse who was familiar with [REDACTED] to bring her to school and then to bring her home. I find that the parent did not seek funding for the private [Redacted] nurse. I find the evidence and testimony presented regarding [REDACTED]'s medical conditions and need for the 24/7 private [Redacted] nursing services persuasive. I find that [REDACTED] was entitled to attend the MFSC at [REDACTED] with her [Redacted] nurse. I find that the [Redacted] nurse worked in 12-hour shifts (T.1335;1349) and I find that [REDACTED] required 1:1 nursing service to go to school as well as to go home as [REDACTED] required nursing services 24 hours per day and 7 days per week. I further find that it would be beneficial to [REDACTED] not to interrupt her 1:1 nursing care. I find that it would be logistically impossible to split the 12-hour shift to ensure continuous nursing care in the event of school holidays and school vacations. I find the uncertainty of continuous coverage with a 1:1 school nurse at school and a 1:1 [Redacted] nurse before and after the school day was a reason the parent requested [REDACTED]'s [Redacted] nurse accompany [REDACTED] at school. I believe that [REDACTED] benefited from her [Redacted] nurse for continuity of services to maintain nursing services at home and at school. I find that testimony adduced at the hearing established that it was only protocol that prevented [REDACTED]'s [Redacted] nurse from entering with [REDACTED] into the MFSC at [REDACTED] (T. 1058). I find that the District provided no reason except protocol to deny [REDACTED]'s [Redacted] nurse into the building.
Therefore, if the District does not wish to permit the [REDACTED]'s [Redacted] nurse to accompany her to the MFSC at [REDACTED], I order the District to fund the MFSC at [REDACTED].
I note that the District asserted that the Burlington/Carter test is not applicable; and I need not address that issue; however, I note that the parents met their burden that [REDACTED] is appropriate for the reasons discussed below.
The record is replete with examples of [REDACTED]'s developmental delays and I find that the benefits of mainstreaming with typically developed peers is minimal for [REDACTED] who communicated by eye glaze and had limited interactions with her peers except to look at her peers. I credit testimony of the special education teacher in the MFSC in [REDACTED] who stated that there were mainstreaming opportunities for MFSC students to include them in the school day and in school assemblies and activities and in the monthly awards and in band and I find that the IEP indicated mainstreaming opportunities were available in school wide events (T.48;148; Exh. 2 at 12). The IEP indicated that [REDACTED] would not participate in the general education program and would not be mainstreamed for lunch, recess or specials, but would be mainstreamed for school wide events to the fullest extent possible (Exh. 2 at 12).
I find that had [REDACTED] had little awareness of being with her peers. I find that the consideration of her inclusion with non-disabled peers in the limited time for assemblies and parades or when a general education student pushed into the class would have limited impact on [REDACTED]. See G.B. and L.B. Tuxedo Union Free School District, 60 IDELR 2 (2d Cri. 2012, unpublished). I find [REDACTED] did not learn by watching her disabled peers and modeling their positive behaviors.
I find that the parents' advocate asserted that [REDACTED] was appropriate and highly specialized educational and therapeutic setting even if it contained only special education students (Exh. X at 19-20). I agree. The parents' advocate asserted that the [REDACTED] program utilized movement throughout the building to address the needs of children in wheelchairs (Exhs. X at 20;G). I credit the testimony and find that the culture of movement embedded within the [REDACTED] program with the therapeutic pool to develop muscles and MOVE certified OT and PT providers as well as a movement wall for children to engage in sensory experiences while moving along the wall while touching soft and squishy objects addressed [REDACTED]'s physical needs (T. 1260;1481). I find the MOVE culture of the [REDACTED] in the outside gym, designed for playing while in a wheelchair benefited [REDACTED]'s physical disability and I find that [REDACTED] provided supports specially designed for students like [REDACTED] with mobility issues to achieve more independence. I credit the testimony and find that [REDACTED] improved the development of her core and was able to leave the more restrictive chair (T.1227). I further credit the testimony and evidence and find that [REDACTED] was not overly restrictive as a special education school and I find that it met [REDACTED]'s unique needs.
Accordingly, I find that [REDACTED] was able to address [REDACTED]'s academic, social/emotional and physical needs.
Lastly, it is the District's position the parent never considered the District's placement. I find that there is case law regarding tuition reimbursement that is analogous. The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent's subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)
Order
Therefore, it is hereby ordered that the District allow [REDACTED]'s 1:1 [Redacted] private nurse to accompany [REDACTED] to the MFSC in [REDACTED] and to provide related services of individual ("1:1") speech and language therapy 3 times per week for 30 minutes per session; 1:1 physical therapy 4 times per week for 30 minutes per session and 1:1 occupational therapy 3 times per week for 30 minutes per session for the 2021-2022 school year or to provide funding for the placement at [REDACTED] with a 1:1 full-time nurse, and provide related services of 1:1 speech and language therapy 3 times per week for 30 minutes per session; 1:1 physical therapy 4 times per week for 30 minutes per session and 1:1 occupational therapy 3 times per week for 30 minutes per session for the 2021-2022 school year.
Dated: 2/27/22
__________/s/___________________
LINDA AGOSTON, ESQ.
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.
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 12, 2021
1 Prior Written Notice, 6/21/21, 4 pp. District
2. Individualized Education Program, 6/21/21, 13 pp. District
3 Bilingual psychological reevaluation, 6/14/21,7 pp. District
4 Bilingual educational reevaluation, 6/ 14/21, 4 pp. District
5 Occupational therapy annual review report, 6/11/21, 2 pp. District
6 Physical therapy annual review report, 6/11/21, 2 pp. District
7 Bilingual speech & language triennial evaluation, 6/11/21, 3 pp. District
8 Feeding observation, 6/17/21, 2 pp. District
9 Nursing observation, 4/29/21 & 5/25/21, 1 p. District
10 [Redacted] Health Center letter by Dr. [Redacted], 9/23/20, 5 pp. District
11 Parents authorization to the caregiver of the Student, 9/18/20, 1 p. District
12 (ID) CSE meeting Notes of Supervisor, 6/21/21, 3 pp. (ID only) District
13 CSE meeting notes of CSE chairperson, 6/21/21, 4 pp. District
14 CSE meeting notes of special education teacher, 6/21/21 4 pp. District
I Due Process complaint, 7/5/21, 7 pp. IHO
II Appointment Letter, 7/9/21, 1p. IHO
III Agreement on Placement Pending the Outcome of the Due Process
Proceeding, 7/30/21, 3 pp. IHO
IV District's Response to Due Process Complaint, 8/3/21, 6 pp. IHO
V Decision on Extension,8/18/21, 1 p. IHO
VI Decision on Extension,10/12/21, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 29, 2022
A (ID) Letter from [Redacted], NP Boston Children's
Health Physicians, 10/20/21 1p. (ID only) Parents
B (ID) EEG Video Monitoring, 9/7/20-9/9/20, 4 pp. (ID only) Parents
C (ID) Video 4 Monitoring, 2/5/19-2/6/19, 3 pp. (ID only) Parents
D Dr. [Redacted] Letter, 4/11/21 p. Parents
E Immunization Medical Exception Form, 4/11/21, 1 p. Parents
F [Redacted] Annual Report, 5/13/21 9 pp. Parents
G [Redacted] the Mission of MOVE program, undated, 1 p. Parents
H [Redacted] Class Schedule, 2021-2022, 1 p. Parents
I IEP, 2/28/20, 10 p. Parents
J Preschool IEP, 2/28/20. 14 pp. Parents
K [Redacted] Progress Report 12/7/20-1/29/21, 1 p. Parents
VII Decision on Extension,11/29/21, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 16, 2021
15 Set of E-mails between [Redacted] and [Redacted],
10/20/21, 1 p. District
16 E-mail from [Redacted] to [Redacted], 10/20/21,1 p. District
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 22, 2021
1 Prior Written Notice, 6/21/21, 4 pp. District
2. Individualized Education Program, 6/21/21, 13 pp. District
3 Bilingual psychological reevaluation, 6/14/21,7 pp. District
4 Bilingual educational reevaluation, 6/ 14/21, 4 pp. District
5 Occupational therapy annual review report, 6/11/21, 2 pp. District
6 Physical therapy annual review report, 6/11/21, 2 pp. District
7 Bilingual speech & language triennial evaluation, 6/11/21, 3 pp. District
8 Feeding observation, 6/17/21, 2 pp. District
9 Nursing observation, 4/29/21 & 5/25/21, 1 p. District
10 [Redacted] Health Center letter by Dr. [Redacted], 9/23/20, 5 pp. District
11 Parents authorization to the caregiver of the Student, 9/18/20, 1 p. District
12 CSE meeting Notes of Supervisor, 6/21/21, 3 pp. District
13 CSE meeting notes of CSE chairperson, 6/21/21, 4 pp. District
14 CSE meeting notes of special education teacher, 6/21/21 4 pp. District
15 Set of E-mails between [Redacted] and [Redacted],
10/20/21, 1 p. District
16 E-mail from [Redacted] to [Redacted], 10/20/21, 1 p. District
A Withdrawn Parents
B EEG Video Monitoring, 9/7/20-9/9/20, 4 pp. Parents
C Video 4 Monitoring, 2/5/19-2/6/19, 3 pp. Parents
D Dr. [Redacted] Letter, 4/11/21 p. Parents
E Immunization Medical Exception Form, 4/11/21, 1 p. Parents
F [Redacted] Annual Report, 5/13/21 9 pp. Parents
G [Redacted] the Mission of MOVE program, undated, 1 p. Parents
H [Redacted] Class Schedule, 2021-2022, 1 p. Parents
I IEP, 2/28/20, 10 p. Parents
J Preschool IEP, 2/28/20. 14 pp. Parents
K [Redacted] Progress Report 12/7/20-1/29/21, 1 p. Parents
I Due Process complaint, 7/5/21, 7 pp. IHO
II Appointment Letter, 7/9/21, 1p. IHO
III Agreement on Placement Pending the Outcome of the Due Process
Proceeding, 7/30/21, 3 pp. IHO
IV District's Response to Due Process Complaint, 8/3/21, 6 pp. IHO
V Decision on Extension,8/18/21, 1 p. IHO
VI Decision on Extension,10/12/21, 1 p. IHO
VII Decision on Extension,10/12/21, 1 p. IHO
VIII Decision on Extension,12/22/21, 1 p. IHO
Post Hearing Submissions
XI District's Closing Statement, 2/4/22, 32 pp. IHO
X Parents' Closing Statement, 2/7/22, 20 pp. IHO
XI District's Reply, 2/10/22, 4 pp. IHO
XII Subpoena, various dates, 5 pp. IHO