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CASE NUMBER: 570579 - NYC: 224843
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: March 2, 2022
Date(s) of Hearing: October 11 2022
November 9, 2022
December 12, 2022
Actual Record Closed Date: January 26, 2023
Date of Decision: January 31, 2023
Date of Distribution if Different than Decision Date: n/a Hearing Officer: Rachel Gibbons, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 11, 2022
For the Student:
[REDACTED] Attorney (Via videoconference platform)
For the Department of Education:
[REDACTED] District representative (Via videoconference platform)
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 9, 2022
For the Student:
[REDACTED] Attorney (Via videoconference platform)
Parent Parent (Via videoconference platform)
[REDACTED] Principal (Via videoconference platform)
For the Department of Education:
[REDACTED] District representative (Via videoconference platform)
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 12, 2022
For the Student:
[REDACTED] Attorney (Via videoconference platform)
For the Department of Education:
[REDACTED] District representative (Via videoconference platform)
[REDACTED] Teacher Assigned (Via videoconference platform)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed against the New York City Department of Education (“DOE” or “District”) on or about March 2, 2022. (P-Ex. A) 2. The DPC alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-2022 school year. (P-Ex. A). The District asserted, inter alia, that the Student was provided with a FAPE for the 2021-2022 school year. (IHO-Ex. II). This IHO was appointed on May 24, 2022. On June 7, 2022 a prehearing conference was held. Status conferences were held on July 6, 2022, August [2], 2022 and September 6, 2022. The date of compliance was extended several times to allow for settlement discussions, due to the availability of parties and witnesses, and to receive post hearing briefs.
A closed hearing on the merits was held on October 11, 2022, November 9, 2022 and December 12, 2022. Parent was represented by [REDACTED]. The Parent presented two witnesses who submitted testimonial affidavits and testified at hearing: the Parent herself and [REDACTED], the principal (“Principal”) of the [REDACTED] (“NPS”), the Student’s unilateral placement for 2021-2022. The Parent entered into evidence 17 exhibits. (P-Exs. A-Q). 3 The DOE was represented by district representative [REDACTED] who presented one witness at hearing, [REDACTED], the teacher assigned A from the CSE (“Teacher Assigned”). The DOE entered into evidence two exhibits. (D-Exs. 1-2). Closing briefs were submitted on January 13, 2023. An IEP, requested by this IHO, was produced on January 18, 2023. (IHO-Ex. III). Corrections were made to the transcript on January 26, 2023. The record was closed on January 26, 2023. The final date of compliance is February [3], 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND [4]
The Student is [REDACTED] years old and has a special education classification of [REDACTED] pursuant to treatment for [REDACTED]. She presents with difficulties in reading, writing, processing and short-term memory. In addition, the Student has Type 1 Diabetes and is insulin dependent. In February 2021, the District developed an Individualized Education Services Program (“IESP”) to be implemented for the next 12 months. In August 2021 the Parent requested a CSE meeting and a public placement for the Student for the 2021-2022 school year. CSE meetings were held in August 2021 and again in October 2021. The Parent enrolled the Student at the NPS in September 2021. An IEP was developed on October 14, 2021. On November 16, 2021, in a ten-day notice, the Parent informed the District that she disagreed with the October 2021 IEP and the recommended school location, and would seek public funding for the Student’s enrollment at the NPS for the 2021-2022 school year.
ISSUES
The DPC alleged that the DOE failed to provide a FAPE for the Student for the 2021-2022 school by failing to provide a substantively appropriate and procedurally valid IEP and placement for the 2021-2022 school year.[5] (P-Ex. A pp. 1). The Parent alleged, inter alia, that the CSE failed to conduct and consider sufficient evaluations; to obtain sufficient clinical data to support its recommendations; to provide prior written notice in accordance with the IDEA and state law; to recommend a 1:1 paraprofessional; and to provide the parent with the opportunity for meaningful participation in the IEP process. The Parent also asserted that the CSE review team was not validly constituted, the recommendations were predetermined, the IEP would not enable the Student to improve academically, the IEP did not provide for enough individualized instruction; and the recommended school location (“Recommended School”) was inappropriate. (P-Ex. A) The Parent provided documentary evidence and witness testimony to support her claims. (IHO-Ex. I).
The Parent requests as relief a determination that the DOE denied the Student a FAPE for the 2021-2022 school year; reimbursement and/or direct funding of the Student’s tuition at the NPS and for the cost of a 1:1 health paraprofessional for the 2021-2022 school year; funding for door-to-door special education transportation; and any additional relief the IHO determines is appropriate. The District asserts that all of the procedural and substantive claims are without merit and did not result in a deprivation of FAPE. (IHO-Ex. II). The DOE provided documentary evidence and witness testimony to support its assertions. (Id.)
FINDINGS OF FACT
1. The Student is [REDACTED] years old and has a special education classification of [REDACTED]. (P-Ex. A p. 1; D-Ex. 1 p. 1). In 2017 she [REDACTED] which resulted in cognitive and memory impairment. (P-Ex. N p. 1 ¶¶ 1, 2; P-Ex. M p. 2 ¶ 14; IHO-Ex. III p. 4).
The Student has difficulties with academics, speech-language skills, social/emotional functioning, and fine motor skills. (P-Ex. N p. 1 ¶ 2; P-Ex. N p. 2 ¶ 14). The Student has Type 1 Diabetes and is insulin dependent. (P-Ex. N p. 2 ¶¶ 7, 10; D-Ex. 1 p. 5).
2. According to the November 2021 IESP, the Student’s decoding and comprehension were at a high sixth/low seventh grade level and her math skills were at a sixth-grade level. (D-Ex. 1 p. 1). At the start of ninth grade, the IEP reflected that the NPS estimated that the Student was on a 6th grade level in reading and 5th grade level in math. (IHO-Ex. III p. 3). The Principal testified that at the start of the 2021-2022 school year the Student was at a fifth grade level in decoding and comprehension and at a sixth grade level in math. (P-Ex. M pp. 3-4 ¶¶ 23, 28-29; P-Ex. I).
According to the most recent DOE psycho-educational evaluation, the Student’s cognitive indices were “scattered” and her working memory was in the extremely low range. (D-Ex. 2 p. 1). She had short-term memory and processing deficits. (Id. p. 5).The Student has inconsistent comprehension skills and difficulty retaining information she has read. (D-Ex. 1 p. 2). She could “become overwhelmed” when taking a test consisting of multiple math problems; therefore, her eighth-grade teacher kept her tests short and offered breaks as needed. (Id.)
3. During the 2020-2021 school year the Student attended the eighth-grade in a private general education school in a class consisting of seven students, one teacher and one teaching assistant. (D-Ex. 1 p. 1). The Parent described it as a “self-contained class within a school.” (Tr 128). The classroom teacher noted that the Student encountered difficulties in a number of areas, including writing, comprehension, memory and math problems. (D-Ex. 1 pp. 1-3). The classroom teacher also noted that the Student often required 1:1 support. (Id.)
4. An IESP was developed for the Student on February 10, 2021. (D-Ex. 1 p. 1). The projected implementation date was February 24, 2021 with an annual review date of February 10, 2022. (Id.)
The IESP noted that the Student was enrolled in the [REDACTED] program in a classroom consisting of seven students, one teacher, and one teaching assistant. (Id. p. 1). The IESP recommended Special Education Teacher Support Services (“SETSS”) 10 periods per week, group service; speech-language therapy (“SLT”), individual service, three times per week for 30-minute sessions; occupational therapy (“OT”), individual service, twice weekly for 30-minute sessions; and school nurse services, individual service, as needed. (D-Ex. 1 p. 13). The IESP recommended a 1:1 paraprofessional for health and “Diabetic-Insulin Supervision.” (Id. p. 14). Testing accommodations included time-and-a-half for exams; small group; quiet location; minimal distractions; directions read, re-read and simplified; and visual and verbal prompts as needed. (D-Ex. 1 p. 13).
5. On August 2, 2021 the Parent sent a letter to the CSE and requested an CSE meeting, a IEP, a full-time public special education placement and a full-time nurse for the 2021-2022 school year. (P-Exs. B, N p. 1 ¶ 3). A CSE meeting was held on August 16, 202. (P-Ex. N p. 1 ¶ 4). The Parent testified via affidavit that the CSE team was not aware that the Student required an Individualized Education Program (“IEP”) as opposed to an IESP, and the meeting proceeded as an IESP annual review. (Id.) On August 17, 2021, the Parent wrote to the CSE again, to request another meeting and to inform them that she was going to enroll the Student in the NPS until the CSE recommended a public placement. (Id.; P-Ex. C)
6. The Parent enrolled the Student at the NPS in September 2021. (P-Ex. M p. 2 ¶ 11). The Parent signed an enrollment contract with related services addendum on September 1, 2021. (P-Ex. P).
7. On October 14, 2021 a second CSE meeting was held and an IEP was developed. (IHO Ex. III; P-Ex. N p. 1 ¶ 5). The IEP recommended a general education program with five periods of group SETSS for math and five periods of individual SETSS for ELA; OT, individual service, three times weekly for 30-minute sessions; SLT, individual service, twice weekly for 30-minute sessions and a paraprofessional for transportation. (Id.) Testing accommodations consisted of time-and-a-half, small group and questions and directions read aloud. (IHO-Ex. III p. 19). The IEP referred to and/or cited from the following sources: current informal assessment information provided by the NPS; an eighth-grade teacher report dated February 4, 2021; psychoeducational testing from 2018; OT and SLT reports from 2020 and a nursing report dated July 2021. (Id. pp. 1-4).
8. The Parent testified via affidavit and at hearing that the IEP was not appropriate for the Student, as she was several years behind grade level and required a full-time special education program. (P-Ex. N pp. 1-2 ¶ 6; see also Tr 134-135). The Parent also explained that the Student required a 1:1 full-time health paraprofessional due to her diabetes. (Id. ¶ 7). The Principal, who attended the October 14, 2021 CSE meeting, testified via affidavit that the IEP was not appropriate for the Student as it failed to recommend a full-time special education placement with a small class setting and 1:1 instruction. (P-Ex. M p. 6 ¶ 39). The Principal opined that the IEP was inadequate due to the failure to recommend a full-time health paraprofessional. (Id. p. 6 ¶ 40; see also Tr 84-85).
9. The Parent received a School Location Letter (“SLL”) which recommended [REDACTED] (Recommended School). (P-Ex. N p. 2 ¶ 9). The Parent determined that the Recommended School was an inappropriate placement for the Student. (Id.) The Parent contacted the Recommended
School. (Id. ¶ 8). She noted that the class had one teacher with 25-30 students; the school was large; approximately 280 students would eat lunch at the same time; the program did not have adequate 1:1 and individualized attention; the class followed a ninth-grade common core curriculum; the program did not offer and formal social skills curriculum; the Student would have to change classrooms for every subject; and the school could not provide the Student with frequent breaks. (Id. p. 2 ¶¶ 9-10). The Parent noted that the Student required a small and structured atmosphere to monitor her diabetes. (Id. at ¶ 10). The Principal testified that both the program and placement recommended by the IEP were inappropriate as the class size was too large; the environment overwhelming; there was little 1:1 support; and the program failed to include the significant repetition of skills and review that were necessary due to the Student’s severe memory deficits. (P-Ex. N p. 7 ¶ 41).
10. The Student enrolled in the NPS in September 2021. (P-Ex. M p. 2 ¶ 11). She attended a classroom of eight students, one classroom teacher and two teaching assistants. (Id. ¶ 15). The NPS has a total of 30 students in five classes. (P-Ex. M p. 2 ¶ 7). All students at the school have disabilities, ranging from ADHD, emotional and learning issues to Autism. (Tr 91-93). The NPS developed an individualized program with individualized curriculum and individualized goals for the subjects of reading, math, writing/grammar, geography, science, social/behavioral skills, speech-language skills, occupational therapy and counseling. (P-Exs. H, M p. 3 ¶¶ 20-21). The Principal described the Student’s curriculum, including methodology and textbooks used, in detail. (P-Ex. M pp. 3-5
¶¶ 23-33). The Student received counseling, speech-language therapy and occupational therapy. (P-Ex. M p. 5 ¶¶ 35-38). The Student’s teacher was licensed in special education, and the assistant teachers were both pursuing degrees in special education. (P-Ex. M p. 3 ¶¶ 17-19). The related services providers were licensed. (Id. p. 5 ¶ 35)
11. The Student made progress during the 2021-2022 school year in all subjects and related services. (P-Exs. H, I, J, K, L). The Principal testified at length as to the Student’s progress. (P-Ex. M ¶¶
26, 28, 29, 31, 36-38, 42). The Parent noted the Student’s improvement in social skills, academics, reading, and expressive speech abilities. (P-Ex. N p. 3 ¶ 13). Both the Parent and the Principal testified that the NPS was an appropriate placement for the Student for the 2021-2022 school year. (P-Exs. M p. 7 ¶ 42; N p. 3 ¶ 13).
12. The Teacher Assigned, who is licensed in both general and special education, acted as both the district representative and teacher during the October 14, 2021 IEP meeting. (Tr 187-188; IHO-Ex. III p. 25). She testified a small class of eight students would be too restrictive for the Student. (Tr 195-196).
13. The Student has Type I Diabetes and an insulin pump. (D-Ex. 1 p. 1). The February 2, 2021 IESP, which contemplated the Student’s continued parental placement at a private school, recommended a 1:1 health paraprofessional. (D-Ex. 1 p. 13). The Parent requested a 1:1 paraprofessional in the ten-day notice dated November 16, 2021. (P-Ex. D p. 1). The March 2, 2022 DPC requests a 1:1 full-time health paraprofessional for the Student. (P-Ex. A).
14. The October 14, 2021 IEP states that the “[m]other further reported that [the Student] has diabetes. She carries her medication with her. [She] is able to give herself insulin and injections as needed.” (IHO-Ex. III p. 4). The Parent testified that the Student had 1:1 nursing services in sixth, seventh and eighth grades. (Tr 148). By the middle of eighth grade, however, the Student was able to take care of her needs and the nurse watched her. The nurse “didn’t feel like she was a nurse, per se. It was like the responsibilities of a para is [sic] what she was doing.” (Tr 149). The Parent testified, at hearing on November 9, 2022, that the Student had a new pump that required less work and the Student was able to use CGM, a continuous glucose monitor. (Tr 151).
15. The October 2021 IEP stated: Nursing form 7/28/2021: change to non 1:1 skilled nursing services. [She] can administer her insulin and check her BG with adult supervision. This task indicates the student can be managed by a school nurse. Please discuss with parent for the student to be in the least restrictive environment. Mother and nursing report stated that [she] can administer insulin on her own, and nursing report indicated that the school nurse can assist if needed. [NPS] rep reported that there is no school nurse at the [NPS]. Mother is concerned that [she] needs reminders and someone to make sure she is administering insulin when needed. Team explained that in public school, which mother is requesting, will have a nurse on staff. (IHO-Ex. III p. 4).
16. The October 2021 IEP management needs section stated: Preferential seating should be given, with particular attention to [her] glucose alarm, and a schedule should be created between the nurse, classroom teacher and all related service providers in order to check on [her] and assist her with glucose administration if necessary.” (Id.)
17. The Teacher Assigned testified about the District’s process, called a “referral,” for requesting nursing services. (Id. 188-190). The Teacher Assigned recalled that there was a nursing referral for the 2021-2022 IEP and the Student was not recommended for 1:1 nursing services. (Tr 191).
She explained that all District public schools have nursing staff on site. (Tr 191). If a student required nursing services the skilled nurse, administration and teacher would meet and develop a schedule. (Tr 212). The nurse would then go to the Student’s classroom or the Student would go to the nursing office. (Tr 192). The Teacher Assigned testified that a paraprofessional, including health paraprofessionals, are not permitted to administer insulin, monitor blood levels, or give a student candy. (Tr 210-211). A paraprofessional in a unilateral placement would be able to give reminders to a student to take their medication. (Tr 211).
18. The NPS hired a 1:1 paraprofessional to assist the Student with monitoring her diabetes for the 2021-2022 school year. (P-Ex. P). The Parent signed an addendum to the NPS enrollment contract which states that “As stated in your child’s New York City IEP, your child requires a paraprofessional.” (Id.) The February 2021 IESP recommends a 1:1 health paraprofessional. (D-Ex. 1 p. 13). The October 2021 IEP does not recommend a 1:1 full-time health paraprofessional, instead it recommends a transportation paraprofessional. (IHO Ex. III p. 22).
19. The Parent, who is a registered nurse, trained the NPS paraprofessional. (Tr 104). The paraprofessional’s duty was to ensure the Student monitored her diabetes properly, i.e. that the Student responded to the CGM/insulin pump alarms; correctly calculated the carbohydrates [in food] and entered the numbers correctly into the pump; and checked her blood sugar in her CGM. (Tr 119-121). In addition, the paraprofessional was trained to recognize the symptoms of high and low blood sugar. (Tr 122-23) The Parent testified that the Student does not always recognize the symptoms and her blood sugar tends to “go high.” (Id.) The Student sometimes ignores the alarms which tell her to have the pump inject more insulin. (Tr 118). The paraprofessional hears the alarms and reminds the Student to heed them and, for example, inject additional insulin. (Tr 112-113). The Parent warned that the Student still requires reminders and careful observation to make sure she is operating the pump properly. (Id.). The Student is now aware when she needs to take glucose tabs, but she still requires constant reminders to take note when her blood sugar is high and to drink plenty of water. (Tr 152). The Parent explained that when the student’s blood sugar goes high, she needs to quickly drink water, as it is an important part of treating the high blood sugar. (Id.) The Principal was trained by the Parent. (Tr 93, 111).
20. The NPS has religious instruction. The Student’s daily schedule lists “Prayer” Monday through Thursday twice daily for 15-minute sessions, and “Bible Studies” once daily for 30-minute session. (P-Ex. E). On Friday there is one 15-minute session entitled Prayer. (Id.)
CONCLUSIONS OF LAW
IDEA and FAPE
The IDEA was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192).
The Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o 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.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:
A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).
The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).
An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).
“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” (See R.E., 694 F.3d at 190. It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible.” (Mr. and Mrs. P. at 114).
Burden of Proof
The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence. If the evidence is evenly balanced, the party with the burden of persuasion must lose.
Tuition Reimbursement
In Burlington School Comm. v. Dept. of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.
The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school. (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student’s individual needs. “A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child.” (Gagliardo v. Arlington Central School District, 489 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89). The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep’t of Educ. 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461).
Direct Payment of Tuition
The Parent has requested a remedy of partial reimbursement and retroactive direct payment in this matter. The Second Circuit has held that an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453). These direct funding cases are often referred to as “Connors” cases after Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.).
ANALYSIS
The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The District argued that it provided the Student with a FAPE for the 2021-2022 school year. (IHO Ex. II). The October 14, 2021 IEP recommended a general education classroom, ten weekly periods of group SETSS, along with the related services of SLT and OT, each on an individual basis. (IHO-Ex. III; Findings ¶ 7). The IEP team was duly constituted. (IHO-Ex. III p. 25). The IEP recommended non-1:1 skilled nursing services. (Findings ¶¶ 15-16). The Parent and the Principal meaningfully participated in the IEP process. (IHO-Ex. III pp. 2-4; Findings ¶¶ 7-8). The IEP team did consider the input of the NPS and the Parent; however, the District did not agree with them. (Id.). The IEP relied on information, reports and assessments from a number of sources. (D-Ex. 1; Findings ¶ 7). There is no evidence that the recommendations were predetermined. The IEP, however, was not “reasonably calculated to enable [the Student] to make progress in light of [her] circumstances.” [6]
Despite the well-documented needs of the Student, the DOE failed to recommend a special education classroom placement. The Student’s February 2021 IESP contained highly detailed information about the Student’s continued cognitive and academic challenges, as well as her consistent need for 1:1 instruction and support. (D-Ex. 1 pp. 1-5; see also Findings ¶ 2). The IESP also reflected that her continued difficulties had occurred in a classroom with only seven students, one teacher and one teacher’s assistant, with the added support of ten weekly hours of SETSS. (Findings ¶ 4).
The IEP placed the Student in a typical ninth grade classroom with a special education program comprised of five 1:1 weekly hours of SETSS for ELA, five weekly hours of group SETSS for math, and 1:1 related services. (Findings ¶ 7). The recommended classroom(s) would have contained approximately 25-30 students with only one teacher in a typical high school. (Findings ¶ 9). At the time of the October 2021 CSE meeting, the Student was between two and three years below grade level in math and ELA. (Findings ¶ 2). The Student would certainly have been overwhelmed by the demands of a ninth-grade curriculum, while moving from classroom to classroom, with no special education support integrated into the classes themselves. Aside from SETSS the IEP provided no individualized education support. The District noted that SETSS can be “pushed” into the classroom; however, the IEP specified that SETSS would be provided at a “Separate Location SETSS location.” (Tr 139; D-Ex. 1 p. 17). The psychoeducational assessment was three years and three months old. (D-Ex. 2). The age of the assessment, in isolation, would not indicate a failure to provide FAPE; however, the IEP failed to properly take into account the findings of the actual assessment. (D-Ex. 2 p. 1). The IEP goals did not adequately address the very deficits reflected in the 2018 assessment, nor the information relayed by the Student’s eight grade teacher. The IEP testing accommodations were less supportive than the earlier IESP. (Findings ¶¶ 4, 7). The IEP was not reasonably calculated to give educational benefits to the Student. The Recommended School was not appropriate for the Student because it was recommended for its ability to implement the IEP, which in itself was not appropriate.
The Parent maintained that the IEP was not appropriate because it failed to recommend a 1:1 health paraprofessional. This IHO agrees. The District argued that the IEP was developed to recommend a public placement for the Student, and as the Teacher Assigned testified, the District schools have full-time school nurses. (Findings ¶ 17). The November 2021 IEP stated that the school nurse, classroom teacher and all related service providers would create a schedule to check on the Student and assist her with glucose administration. (Findings ¶¶ 16-17). The District maintains that the Student would not have needed a health paraprofessional in a program equipped with school nurses who would coordinate diabetes support with the school faculty and staff. (Id.)
The Student sustained a [REDACTED] that caused memory and processing deficits. (Findings ¶¶ 1-2). Although a non-1:1 skilled nursing plan works for many students, it was simply not appropriate for this Student who is “consistently inconsistent” when responding to her CGM alarms. (Tr 116; Findings ¶ 19). Due to the Student’s cognitive profile, the limited support of a nursing schedule and well-informed teachers would not have been effective. The Student would still have had to respond, all by herself, to the CGM alarms while moving to and from classrooms, related service providers, the nurses’ office, the cafeteria and the gymnasium, all the while buffeted by hallways full of other students. When not scheduled for nursing monitoring, the Student would have to rely on observation by a number of wellmeaning teachers and staff who had scores of other students and issues competing for their attention. In a District community public high school the Student would have needed a 1:1 health paraprofessional to support her health, allow her to access the curriculum, and enable her to make progress in school. The District failed to provide the Student with a FAPE for the 2021-2022 school year. The District has failed to carry its burden of proof and persuasion that it provided a FAPE to the Student for the 2021-2022 school year. The Parent has satisfied Prong I of the Burlington/Carter analysis.
The Parent has demonstrated that the NPS was appropriate. The unilateral placement has tailored a program for the Student featuring both 1:1 and small group academic instruction with individualized 1:1 related services. (Findings ¶ 10). The NPS program has enabled her to make progress. (Findings ¶ 11). The District and the Teacher Assigned assert that the NPS was too restrictive. (Findings ¶ 12; IHO-Ex. II p. 2). The District has made a valid point, as the NPS is devoted to the education of students with disabilities; therefore, the NPS offers the Student no opportunities to interact with typical peers. The NPS, however, does not need to be “appropriate” under a strict IDEA standard; the NPS is viewed instead through a Burlington/Carter lens. The restrictiveness of the NPS environment is insufficient to render the NPS inappropriate under the circumstances.
In addition to funding for tuition, this order will include direct payment and/or reimbursement for the Student’s 1:1 paraprofessional for the 2021-2022 school year. The NPS hired and paid for a health paraprofessional for the Student, to address her Type I Diabetes. (See Findings ¶ 21-22). The District asserted that the NPS paraprofessional was not appropriate, as there was no evidence that she was formally trained. This IHO requested a copy of the instructions that the paraprofessional received.[7] Funding of the 1:1 paraprofessional is appropriate under the Burlington/Carter framework. 8 The equitable considerations favor the Parent. She attended all CSE meetings and advised the District, in a letter dated August 17, 202, that she was going to place the Student in a private special education school while she waited for an IEP and public placement. (P-Ex. N p. 1 ¶¶ 4-5). The Parent signed an enrollment contract with the NPS that had an “out clause” which would enable the Parent to terminate the contract on a prorated basis if the Parent enrolled the Student in a District recommended placement. (P-Ex. P). The Parent prevails on Prong III of Burlington/Carter.
The Parent testified that she could not pay for the NPS tuition up front. (P-Ex. N p. 3 ¶ 12). She provided a tax return that substantiates her claim. (P-Ex. Q). She signed an enrollment contract for the 2021-2022 school year and acknowledged that she would be responsible for the payment of the tuition if the DOE was not ordered to pay. (P-Ex. N p. 3 ¶ 12; P-Ex. P). Direct payment of tuition and transportation is permissible.
Religious programming comprises 3.75 hours per week. The $62,000 tuition will be reduced by 12.7 %. This reduction does not apply to the $9,000 for the related services, nor to the $25,000 for the paraprofessional.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. The District failed to provide a FAPE to this Student for the 2021-2022 school year;
2. The District is directed to directly pay the sum of $86,374 to the [REDACTED] for the Student’s 2021-2022 tuition, 1:1 paraprofessional, and related services, upon receipt of appropriate and notarized invoices for same; and
3. The District is directed to reimburse the Parent in the sum of $1,746 for her partial payment of the tuition for the unilateral placement of the Student at the NPS for the 2021-2022 school year, upon receipt of proof of payment for same;
4. The District shall reimburse and/or directly pay for the Student’s round trip special education transportation for the 2021-2022 school year upon notarized proof of transportation service and receipt and/or invoice for same.
SO ORDERED.
DATED: January 31, 2023
Rachel Gibbons
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial hearing request 3/02/2022 4 pages
B. Letter from Parent to CSE 8/02/2021 1 page
C. Letter from Parent to CSE 8/17/2021 1 page
D. Ten Day Notice Letter and Email Confirmation 11/16/2021 3 pages
E. Daily Schedule 2021-2022 1 page
F. Program Description 2021-2022 2 pages
G. Attendance record 2021-2022 1 page
H. [REDACTED] Educational Plan 2021-2022 13 pages
I. Teacher Progress Report Feb. 2022 3 pages
J. Occupational Therapy Progress Report Feb. 2022 1 page
K. Counseling Progress Report Feb. 2022 1 page
L. Speech Language Therapy Progress Report Feb. 2022 1 page
M. Testimonial Affidavit of [REDACTED] 9/30/2022 8 pages
N. Testimonial Affidavit of [REDACTED] 10/21/2022 4 pages
O. Affidavit of Payment 11/08/2022 1 page
P. Enrollment Contract 2021-2022 4 pages
Q. Tax Returns 2021 3 pages
DOE’S EXHIBITS
1. IESP 2/10/2021 17 pages DOE
2. Psychoeducational evaluation 7/11/2018 7 pages DOE
IHO’S EXHIBITS
I. Parent’s closing brief 1/13/2023 19 pages
II. DOE Closing Statement 1/13/2023 5 pages
III. Individualized Education Program 10/14/2021 25 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “P-Pend” for Parent’s exhibits from the pendency hearing; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. References to the detailed Findings of Fact section infra shall be referred to as “Findings” followed by the paragraph number.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered into the Record,” to this decision.
[4] See infra, Findings of Fact, for citations.
[5] The Parent alleges the DOE failed to provide the Student a FAPE in compliance with the IDEA, Section 504 of the Rehabilitation Act of 1973, and 20 USC §1983.
[6] See Endrew F. 137 S.Ct. at 1001.
[7] The Parent submitted a document which was identified, but not entered into the record. (P-Ex. R for identification). The document had no author, no date and no internal organization. There was no witness to testify as to its contents. Although the Parent disclosure called it a “Medical Protocol” it did not appear as such and would have added little to the record. This IHO also noted that the document mentioned camp and nurses, which the NPS does not have.