NY IHO #228601: New York City... | Special Education Law

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FINDINGS OF FACT AND DECISION

Case Number: 228601

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/09/2022 Pre-Hearing Conference

08/15/2022 Pendency Hearing

08/16/2022 Hearing

08/29/2022 Hearing

09/06/2022 Hearing

Actual Record Close Date: 10/10/2022

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/09/2022

(All Parties Appeared Via Teleconference)

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/15/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/16/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

[REDACTED], Grandparent

[REDACTED], Director of Special Education,

[REDACTED]

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/29/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

For the Department of Education: [REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON 09/06/2022

(All present by video or telephone)

For the Student: [REDACTED], Attorney

[REDACTED], Grandparent

[REDACTED], Director of Special Education, [REDACTED]

For the Department of Education: [REDACTED], ESQ., Attorney

DOCUMENTS ENTERED INTO THE RECORD

PARENT DOCUMENTS

EX DATE DESCRIPTION PAGE(S) ENTERED

A 07/06/2022 Due Process Complaint IH # 228601

2022-2023 School Year 9 08/09/2022

B 01/01/2022 [REDACTED] IEP 2022-2023 School Year 61 08/15/2022

C 01/06/2022 Findings of Fact and Decision IH# 210624 63 08/15/2022

D 03/01/2022 New York City (NYC)

Department of Education (DOE)

Individualized Education Plan (IEP) 71 08/15/2022

E 06/14/2022 [REDACTED] Enrollment Contract

2022-2023 School Year 6 08/15/2022

F 06/16/2022 Transportation Agreement

2022-2023 School Year 5 08/15/2022

G 06/17/2022 Ten Day Notice (TDN)

2022-2023 School Year 2 08/15/2022

H Undated Proposed Order on Pendency 2 08/15/2022

I 08/16/2022 Affidavit [REDACTED] 5 08/16/2022

J 08/16/2022 Affidavit [REDACTED] 2 08/16/2022

HEARING OFFICER DOCUMENTS

Entered 08/09/2022

I Notice of appointment, 07/21/2022, four pages

II Notice of Appearance, 07/29/2022, one page

Entered 08/16/2022

III Pendency Order, 08/15/2022, seven pages

Entered 08/29/2022

IV Notice of Appearance, 08/18/2022, 1 page

Entered 09/30/2022

V DOE Closing Brief, 09/30/2022, 13 pages

VI Parent Closing Brief, 09/30/2022, 16 pages

DEPARTMENT OF EDUCATION

Entered 09/06/2022

Document Description

Date

Page Count

Notice of Social History

1/03/2022

Psychoeducational Evaluation

01/25/2022

Classroom Observation

02/17/2022

Quarterly Progress Report

11/13/2021

[REDACTED] IEP

03/01/2021

Nursing Referral

03/04/2022

Notice of IEP Meeting

12/22/2021

Notice of IEP Meeting

02/07/2022

Unused

IEP Attendance Page

03/01/2022

IEP Meeting Minutes

03/01/2022

Request for Reevaluation

06/13/2022

Prior Written Notice RE: AT Evaluation

06/13/2022

Prior Written Notice

06/21/2022

School Location Letter

06/21/2022

Events Log

Undated

8/22/2022

INTRODUCTION

On 07/21/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

On 08/09/2022, a Pre-Hearing Conference was conducted. The DOE opted not to appear.

Pendency Hearing was requested, (Ex A & T 6), which took place on 08/15/2022. The DOE opted not to appear. Pendency Order issued. (IHO Ex III)

Pendency Order identified Pendency, based upon Findings of Fact and Decision Case 210624, 01/06/2022 (Ex C), and included:

The District (DOE) shall:

(1) by way of injunction, to continue to place, and to pay for, the Student at [REDACTED], (inclusive of the costs, if any, of all items that would routinely be included on the student’s IEP pursuant to law and regulation, such as related services and augmentative equipment;

(2) to reimburse the family for their out-of-pocket tuition costs for the Student’s placement (inclusive of the costs of related services), if any;

(3) to pay directly to the school any outstanding amount as yet unpaid for the program and related services; and

(4) to directly fund the costs of transportation of the Student at a fair market rate based on comparable transportation, from a comparable vehicle with comparable accommodations for transportation services to and from the private program that were actually provided. (IHO Ex III 6)

Hearing then commenced, on 08/16/2022, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC. The DOE opted not to appear.

Appended to the record are lists of persons in attendance and the documents received in evidence.

It is noted that the Prior Written Notice RE: AT Evaluation, Exhibit 13, was entered as 1 page, but is actually 3 pages.

Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 2022-2023 school year. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including, funding for unilateral placement (UP), at [REDACTED] (UP), with the array of Student services delivered by the program, with transportation. (Ex A)

Parent also seeks an independent neuropsychological evaluation, objecting to the evaluation completed in February of 2022. (T 52)

I note that at times reference may be made to the Student’s Parent, this is intended to be the person in a Parental relationship with the Student, whom is the Student’s Grandmother and Guardian.

THE POSITION OF EACH PARTY

The DOE opted not to appear at several Hearing Dates, including the date set as an opportunity to defend against the allegations contained in the DPC, 08/16/2022.

At Hearing, of 08/16/2022, though the DOE did not appear, the Parent was prepared and commenced presenting its case.

Parent Attorney outlined the Student’s educational and medical challenges, educational history, allegations of a denial of FAPE, for the 22-23 school year, and sought-after relief. (T 31-34)

Parent Attorney called upon two Witness, each to swear to Testimony provided via Affidavit. This included the Student’s guardian, [REDACTED]. (T 36, Ex J), and [REDACTED] ([REDACTED]), the Director of Special Education, at the UP. (T 39, Ex I)

The Witness, [REDACTED], also provided some additional Testimony, at Hearing, which included:

• Student is diagnosed with asthma and respiratory complications that the nurse monitors (T 39);
• Student progress over the past year is noted as including partner assisted scanning (T 40); ability to take reciprocal turns; reaching across midline for self-care (T 41); and with Physical Therapy goals (T 42)
• Student 1:1 paraprofessional, and a 1:1 nurse, have completely separate tasks (T 42);
• Student has a complicated medical history and ongoing respiratory concerns with GI issues (T 42-43):
• Student “needs a lot of tending to and monitoring, retaping, monitoring it for infection control and to see what activities he can safely do at a given moment, given how stable it is and how he's feeling. And so, the nurse really attends primarily to those two areas, whereas the paraprofessional facilitates [Student’s] participation in all of his sessions” (T 43);
• Regarding Student Para: “[Student] is not physically able to manipulate objects by himself, and he really needs a lot of accommodations for that, to be able to access materials, to be able to hold them…to be able to get a multisensory experience of them, to have them held where he can feel them…and move to where he'll be able to see them better. And the paraprofessional assists with all of these things, and assist in positioning with his AT equipment” (T 43);
• Witness differentiates between the role of the Student nurse and para: “So the para really helps to make sure that [Student] can participate in activities and that the skills that he's learning in each of those therapies is carried over throughout the day, whereas the nurse really doesn't attend to any of those things, she's really monitoring for his health and safety, and his participation in that regard” (T 43-44);
• Witness attended the Student’s 03/01/2022 IEP meeting (T 44);
• At the meeting, the UP presented Student nursing needs, and the team asked for additional paperwork (T 44);
• Witness believed the nursing services were previously approved with similar paperwork (T 44-45); and
• A music therapist recommended music therapy for the Student, as means to keep Student regulated. (T 46)

Cross examination of [REDACTED] produced additional Testimony, considered below:

• Students, at the UP, suffer from acquired brain injury;
• Students, at the UP, all attend a 12-month extended school year (T 130);
• Students, at the UP, operate on an extended school day scheduled from 8:30 am to 5 pm (T 131);
• For the Student, and the 22-23 school year, baseline functioning levels were determined via assessment prior to the last IEP meeting (T 132);
• Presently, the Student is: “working on the goals as proposed at the last meeting with CSE…building upon the skills that we noted that he has improved upon and seeing how we can expand upon those” (T 136);
• Student is doing well advancing towards current goals (T 138-139);
• The UP contracts with a private organization to provide Student transportation (T 163);
• Student requires a 12-month extended school year: “he's at a high level of risk for regression of his skills. Part of that is because he just needs to be able to practice things -- skills that he has, whether it's practicing how to do the two-switch scanning with his device or practicing visual skills that he's learning in a specific environment. And he does require the support of a clinician for that” (T 164); and “He needs adult support and trained clinical support to practice and retain these skills. Also, just to prevent deterioration in his, you know, in his motor ability and his physical condition, he needs consistent services. Without that -- you know, without that PT activity, without the you know, the high level of intensity of services that he gets, he would be at risk for overall physical deterioration” (T 165); and
• Regarding Student’s need for an extended school day: “[Student] has a high level of related services throughout the school day, and in order to provide those at the levels that he needs and to still have time in the day for, you know, day-to-day things like, you know, feeding times and ADL activities and things like that, you just, you know, there's literally only so many hours in a day. And in order to fit in all of the activities that are crucial for [Student], as well as those which enable his daily functioning as a human being, he requires an extended school day.” (T 165) The Parent Attorney rested and the IHO advised that once the Transcript was received a notice would be sent to the Parties about closing out the Record.

Once the Transcript was received the DOE Representative contacted the IHO, and Parent Attorney, and requested another Hearing date be scheduled. Hearing was set, and took place, on 08/29/2022.

The IHO set forth the present status of the case and the previous dates, which were unattended by the DOE. (T 69-70)

The DOE Representative sought, in light of the Record not being closed out, to enter evidence and present a case defending against the allegations contained in the DPC, as well as cross-examine the Parent’s witnesses. (T 70-71)

The Representative contends: “This hearing has been scheduled in such a way that it deprived the DOE of an opportunity to put on a case from the moment we failed to appear at the preliminary hearing conference.” (T 71)

The DOE argument, if it rises to such, is without merit.

The DOE fails to identify in what manner the scheduled hearing deprived the DOE of any opportunity. The Hearings, three in total, were set in accordance with associated regulations, and the Notices sent to the Parties by the IHO (IHO Ex I), as well as was communicated through the Impartial Hearing Office procedures.

No actual reason for failing to attend the three previous dates was presented by the DOE Representative. When asked directly why no one appeared, the DOE Representative responded: “Well, wait, it's nothing either here nor there.” (T 89)

Without any reason submitted for an adjournment, or any basis at all for not taking advantage of several opportunities to appear, there is no basis upon which to grant the DOE another opportunity to defend against the allegations contained in the DPC. Of course, the DOE can still, if it so desires, appear at subsequent Hearing dates, rebut the Parent’s case and address any equities that arise. The DOE also retains the ability to submit any type of Closing Brief which may attack the Parent’s case and defend the DPC.

The DOE Representative continues to assert some basis in reopening the case if there are defects in the evidence. (T 71-72)

No alleged defect of evidence is presented.

The DOE seeks to enter evidence into the Record it contends is crucial. Of course the lack of appearing at three previous dates does not lend credibility to the supposed crucial nature of any evidence the DOE may endeavor to enter into the Record. (T 72-73)

I note that at this point the IHO had not denied entry of any offered Exhibit into evidence.

The DOE also contends that the late disclosure of the Parent’s evidence, prior to the

08/16/2022 Hearing, prejudices the DOE negatively. (T 74-75 & 81)

The Parent’s Documentary Evidence, not including Testimonial Affidavits, were indeed disclosed to the DOE five days prior to the Hearing date where it was entered into evidence. However, the DOE Representative was not yet assigned to the case, so the evidence went to the email address assigned to the case originally, back on 07/21/2022. (T 83-85)

Finally, the DOE contends the Parent failed to allege any specific failure of the DOE evaluation, which may potentially serve as a bases of an IEE. (T 75-76)

The IHO reiterated the case history, which included allowing the DOE an opportunity to present a defense to the allegations contained in the DPC. (T 76-77 & 79)

The DOE was allowed an opportunity to cross examine the Parent’s Witnesses, at Hearing of 09/06/2022. This cross examination is outlined above.

Parties requested to submit Closing Briefs, which were submitted and entered herein as IHO Ex V & VI. (T 167-169)

The DOE Closing Brief is considered below:

The DOE contends the Parent’s DPC should be dismissed, contending that the UP failed to evidence that it provided specialized instruction to meet the unique needs of the Student. (Ex V 2)

The DOE argues that the UP instruction is not designed specifically for the Student, and

Instead, uses a “one-size-fits-all approach to the children with severe disabilities enrolled in their program.” (IHO Ex V 5-6)

There are characteristics of the Student program that are also applicable to the other Students at the UP. This includes a 12-month school year and extended school day. There are two different class sizes. (IHO Ex V 6, T 131-132).

However, this does not evidence that this particular Student program is not appropriate.

This argument is without merit. As detailed below, the UP provides services and supports specialized to meet the Student’s special education needs. These needs and supports are detailed in the documents entered into evidence. This includes the DOE’s IEP (Ex D).

The DOE argues that the UP placement, and program, is deficient in that the service providers are not evidenced relative to their respective experience and skill. (IHO Ex V 6)

The qualifications and experience of the UP providers is evident within the Documents entered into Evidence. As reviewed above, the Student’s providers developed a specific program, and IEP detailed below which includes areas of Student special education need, services to address those needs, and noted area of progress. (Ex B & I)

The DOE claims there is no evidence that the transportation service is appropriate. (IHO Ex V 9)

Again, the documents support the provision of special education transportation and associated supports, as detailed in the documents reviewed below.

The DOE contends the associated cost of transportation is excessive. (IHO Ex V 9)

The DOE presents no evidence of any other rate for transportation, other than the sought-after rate, of $[REDACTED]. (IHO Ex V 9) Of course, logically, if the rate was indeed excessive the DOE could offer to provide transportation to the Student and squash the need for private transportation services.

The DOE claims equities favor the DOE, though no evidence is presented supporting this argument. (IHO Ex V 9-10)

In this case, as indicated below, the Parent was presented with an IEP that did not provide services to address all areas of the Student’s special education need. Most obvious is the failure to provide a one-on-one nurse, as necessitated by the Student’s needs set forth within the DOE’s own IEP, as further detailed below. (Ex D)

The DOE contends the cost of the UP program is unreasonable and excessive. (IHO Ex V 10-11)

No evidence is provided to indicated which specific cost is unreasonable or excessive.

The DOE claims the Parent obstructed the DOE from fulfilling its obligations under the IDEA. The DOE points to the IEP team request for additional information regarding the Student’s need for a one-on-one nurse. As argued at Hearing, the IHO notes again that the Parent had already convinced the DOE of the need for a one-on-one nurse as indicated in the IEP. (IHO Ex V 11-12, Ex D)

The Committee on Special Education (CSE) obligation to develop an appropriate IEP does not end at the IEP meeting. If the DOE indeed felt there was insufficient information to identify the Student need for a one-on-one nurse, then that could have been left out of the IEP.

The DOE does not support its argument with any evidence that the Parent is obligated to provide any specific information to obtain any specific special education services for the Student.

The DOE points to state guidelines for determining a student with a disability’s need for a one-on-one nurse, referencing the bolded information below:

“See https://www.p12.nysed.gov/specialed/publications/documents/guidelines-for-determining-a-student-with-a-disability-need-for-a-1-1-nurse.pdf last viewed on 9/27/22. “A CPSE/CSE recommendation for a full-day (continuous) one-to-one nurse should only be made after a comprehensive discussion of other nursing options are considered and there is clear documentation as to why those options will not meet the health and medical needs of the student.” Given that the parent failed to provide the requested medical documentation to support the recommendation of a 1:1 full -time nurse, they impeded the IEP process and direct payment of tuition and services should be denied as a result.”

(IHO Ex V 12)

The DOE argument is misplaced, since the DOE already had clear documentation establishing the Student need for one-on-one nursing services. (Ex D)

The DOE also received additional information as reviewed below, regarding Student’s medical conditions warranting the one-on-one nurse. (Ex 6)

The IEP meeting took place on 03/01/2022. (Ex D)

Additional medical information is dated 03/02/2022 and 03/04/2022. (Ex 6)

In light of the Student’s established need for a one-on-one nurse, and the inclusion of the basic need in the IEP, I find no need for any additional information to be delivered by the Parent. (Ex D)

The DOE sets forth several points in a procedural history of the present matter, which are not evidenced to be fact. For example, the DOE claims a lack of notice of a Preliminary Conference, Pendency Hearing, and Hearing Date. (Ex V 3) Each of these dates are scheduled via the DOE Impartial Hearing Office, with Notice sent as per the DOE procedures developed for Impartial Hearings. Additionally, the DOE can search the Case Number for any scheduled appearance date, in the Impartial Hearing System.

Once the resolution period ended, 08/06/2022, an Impartial Hearing must commence within fourteen (14) days of the end of the resolution period. [to 8 NYCRR § 200.5(j)(3)(iii)] The DOE Representative did file a Notice of Appearance, dated 08/18/2022, and received by the IHO on 08/19/2022. (IHO Ex V)

It is somewhat perplexing that the DOE would not have a process in place to attend to this particular matter with some diligence, considering the timeliness expected of the Impartial Hearing Process.

The DOE states the Record was closed out, on 09/06/2022. This was merely the last date of Hearing. (IHO Ex V 3) The Record was actually closed out once the Closing Briefs were received and reviewed. The Actual Record Close Date, communicated to the Parties, is 10/06/2022.

Evidence submitted by the Parties, and considered below, supports the allegations contained in the DPC and establish the UP as an appropriate Student placement for the 22-23 school year.

The DOE submits documents that serve to support the Student’s need for uniquely designed special education services.

Psychoeducational evaluation, of 01/25/2022, includes details confirming the Student’s severe medical and educational needs, including the support of a 1:1 nurse:

“diagnosed with Intraventricular Hemorrhage, Necrotizing Enterocolitis with Bowel Resection (and revision), MRI showing “brain cyst”, and seizures at month four ([REDACTED]). He is diagnosed with Optic Atrophy and is G-tube dependent. [Student] lives with his grandmother and he currently has the support of a 1:1 paraprofessional and a 1:1 nurse throughout the school day. [Student] is non-verbal and non-ambulatory. He uses a wheelchair and communicates with two single button switches which he activates with his head, facial expressions, touching objects, and vocalizations. Please see his records for complete background information.” (Ex 2-1)

Evaluation details Student delay but fails to make any actual recommendations. (Ex 2-6)

[REDACTED] IEP, of 03/01/2021, details Student areas of special education need and sets forth services delivered for the 21-22 school year. (Ex 5)

The IEP notably refers to the need for, and services performed, by a 1:1 nurse, throughout the IEP. (Ex 5-4, 5-26, 5-27, 5-28, 5-46, & 5-48)

The DOE provides a Nursing referral, which includes information regarding the Student’s specific need for 1:1 nursing services. (Ex 6) The DOE also includes the necessity of a Student 1:1 Nurse in its own IEP, as detailed below.

In June of 2022, the DOE confirms the Parent request for an Assistive Technology (AT) Evaluation. (Ex 12)

The DOE denies the request for AT Evaluation, citing a lack of a specific form. (Ex 13)

The form referred to by the DOE is not included in evidence. Nor is any evidence provided which establishes the need for any Parent action beyond requesting the evaluation.

Prior Written Notice confirms an IEP meeting took place, 03/01/2022, and various recommendations made. Parent and school representatives raised concerns regarding the IEP recommendations, such as Student need for a smaller environment. (Ex 14-5)

The DOE presents a log which contains information entered by the DOE relative to the IEP process. Various entrees are noted to have been sent to the Parent via email, though no evidence is presented that the emails were actually sent or received. Additionally, no evidence is presented that the Parent consented to receive any DOE correspondence via email. (Ex 16)

The Parent Attorney also submitted a Closing Brief. (Ex VI)

This Parent reviews the Students educational history, acknowledged challenges and areas of disability, and outlines the supports and services provided, at the UP, for the 22-23 school year. (IHO Ex VI 1-3)

Parent contends, correctly, that the DOE failed to offer the Student a FAPE for the 22-23 school year. The DOE failed to defend its IEP and failed to defend its Student placement. (IHO Ex VI 7-9)

Parent outlines services provided by the UP and argues that they remain appropriate for the Student, as evidenced by Testimony and Documentary Evidence. (IHO Ex 9-11)

Parent Attorney argues the equities favor the Parent who attended the related IEP meeting and cooperated with the DOE in its endeavor to offer the Student a FAPE. (IHO Ex VI 11-13)

Parent Attorney argues that Direct District funding is appropriate in this case, since the Guardian is unable to afford to pay the Tuition and await reimbursement. Evidence establishes the obligation of the Guardian/Parent to pay the UP Tuition via Contract and the inability to financially fund the Tuition directly and await reimbursement. (IHO Ex VI 13-14)

Parent Attorney notes that the DOE has not evidenced the UP Tuition to be unreasonable. (IHO Ex VI 13-14)

Parent Attorney also argues for entitlement to an Independent Neuropsychological Evaluation, at DOE expense. (IHO Ex VI 14-15)

Parent points to an undisclosed Decision, Case 229655, which noted disagreement with the DOE failure to appropriately evaluate the Student. (IHO Ex VI 15)

This reference does not weigh upon the present matter.

Parent DPC does outline a request for an IEE and the basis for the request:

a. DOE failed to ever conduct a neuropsychological evaluation despite its own

Standard Operating Procedures Manual recommendation of neuropsychological evaluations for students who have a traumatic brain injury. b. [Student] requires an independent neuropsychological evaluation in order to determine his true diagnoses and which would accurately reflect his needs and abilities. c. DOE failed to consider an updated AT evaluation, despite Parent’s raised concerns at the IEP meeting. d. DOE failed to recommend a Music Therapy evaluation, even though Parent raised concerns about DOE’s refusal to recommend music therapy as a related service.

[Student]’s providers provided evaluative data and advocated for music therapy by a licensed music therapist. DOE failed to present any conflicting evaluative information to show that [Student] does not require the service. DOE has the ability to conduct its own evaluations, but it failed to do so and failed to rely on any data to support its decision not to include music therapy as a related service.

(Ex A 6)

As noted below the DOE calls an Assistive Technology evaluation to be conducted within its own IEP. (Ex D 6)

Parent Attorney also includes a sought-after relief of Compensatory Education, in light of any DOE failure to offer a FAPE. (IHO Ex VI 16) However, no evidence is presented of any impact upon the Student which would entitled him to compensatory services.

A 07/06/2022 Due Process Complaint IH # 228601 2022-2023 School Year

Parent DPC details Student educational history, which includes Student severe medical and educational needs (Ex A 2-3); and Student educational history (Ex X 3-4).

Parent raises concerns with the DOE recommended program and placement, alleging: “Based on Parent’s attempted investigation of the recommended placement, none of the proposed Individualized Education Programs (“IEP”) to be implemented during the 2022-2023 extended school year are designed to enable the Student to receive educational benefits or receive appropriate related services. Parent is concerned that the proposed D-75 public school recommendations cannot be implemented, as proposed in the IEPs, during the regular school day. Parent is also concerned about the appropriateness of the recommended placement for reasons including, but not limited to, class size ratio, class functional and academic grouping, staffing, accessibility, availability of adequate resources, and the lack of individualized attention and support as the recommended placement is not the least restrictive setting.” (Ex A 4)

Parent contends the UP is an appropriate placement, for the Student, for the 22-23 school year. (Ex A 4)

Parent alleges a DOE failure to offer the Student a FAPE, for several reasons, including:

• Failure to recommend an appropriate class size in the least restrictive environment (Ex A 4-5);
• Failure to recommend an appropriate public-school placement (Ex A 5);
• Failure to recommend sufficient related services (Ex A 5-6);
• Failure to conduct appropriate and timely Student assessment (Ex A 6); and
• Failure to develop an appropriate IEP. (Ex A 6-7)

Parent seeks relief that includes:

a. An Order declaring that DOE denied Student a FAPE during the 2022-2023 school year; b. A determination that [REDACTED] is an appropriate placement for Student; c. An Order directing payment by DOE directly to [REDACTED] for the cost of Full Tuition for the 2021-2023 school year in addition to the costs of related services, 1:1 private duty nursing services, and a 1:1 paraprofessional, as needed; d. Direct payment/prospective funding of special education transportation with limited time travel, a 1:1 transportation nurse and/or paraprofessional, air conditioning, a lift bus; and a regular-sized wheelchair; e. Reconvene a new IEP meeting to address changes if necessary; f. An Order directing DOE to fund an independent neuropsychological evaluation.

(Ex A 7)

B 01/01/2022 [REDACTED] IEP 2022-2023 School Year

UP IEP details Student special education needs and sets forth services, supports and goals related to those needs. This includes:

• A review of Student diagnosis, educational and medical challenges (Ex B 1)
• Student Cognitive, Social, and Physical Present Levels of Function Performance, and related supports (Ex B 2-7)
• Details regarding Student Fine Motor Skills and related supports (Ex B 7-9)
• Student needs related to classroom environment (Ex B 9-10)
• Present levels of performance related to Gross Motor Skills and Movement, and related supports (Ex B 10-11)
• Present levels of performance related to Vision, and related supports (Ex B 12-14)
• Present levels of performance related to Academics, and related supports (Ex B 13-16)
• Student Assistive Technology needs and supports (Ex B 16-19)
• Student Receptive Skills, Expressive Skills and Social Interaction Skills, and supports, related to Assistive Technology (Ex B 19-20)
• Student Speech Level of Performance, supports, strengths, needs, and Rate of Progress, including Expressive, Receptive, Pragmatics/Social Language Skills and Augmentative and Alternative Communication (AAC), and Feeding (Ex B 20-28)
• Student Occupational Therapy services, areas of need, progress and recommendations (Ex B 29-30)
• Student Physical Therapy Present Level of Performance, needs and supports, and progress (Ex B 30-32)
• Student Music Therapy Present Level of Performance, components of the service, beneficial aspects of the sessions, and Student needs (Ex B 32-33)

UP details the affect of the Student’s impairments upon his education and the services and supports provided by the UP which are required to allow the Student to participate “to his maximum capability” (Ex B 33)

UP IEP includes: Management needs detailed in areas of: Academic Achievement (Ex B 33-34); Social Development (Ex B 34-35); Physical Development (Ex B 35-36); Health Management, with Nursing Interventions and Goals (Ex B 37-39); Student Goals for Academics, Vision, Assistive Technology, Speech Language Therapy, Physical Therapy, Occupational Therapy, Music Therapy, and PCAT (Ex B 41-54); and Supports and Goals related to the 1:1 Paraprofessional. (Ex B 55-56)

UP IEP includes recommendations for Student supports and services that include:

12-Month Program, 6:1:1, 1:1 Paraprofessional and 1:1 Nurse. (Ex B57)

UP IEP supports its recommendation for a 6:1:1 class: Student is “recommended to remain in a 6:1:1 class because of his high level of distractibility, need for a quiet environment with limited sound distractions due to visual deficits and his tendency to startle to noise. In addition, [Student] requires a small class in order to build greater independence with his switch-communication use via partner – assisted scanning or through other needs. At this time, [Student] can best build these skills in a very small class environment of no more than 6 students.” (Ex B 57)

Student is recommended to transportation services which include: a Nurse, AC, Lift-Bus/Wheelchair Ramp, and Limited Travel Time of 60 Minutes. (Ex B 58)

UP IEP includes a summary of recommended Special Education Program/Services: This includes:

• 12-Month Program, Non-Public School
• Occupational Therapy, Individual, 5 times per week, 60 minutes, Push in/Pull, out based on activity
• Physical Therapy, Individual, 5 times per week, 60 minutes, Push in/Pullout based on activity
• Speech-Language Therapy, Individual, 4 times per week, and Group 1 time per week, 60-minute sessions, Push in/Pull out based on activity
• Vision Education Services, Individual, 3 times per week, 60 minutes, Push in/Pull-out, based on activity
• Music Therapy, Individual, 3 times and Group 1 time, for 60 minutes sessions, Push in /Pull Out
• Parent Counseling and Training (PCAT), Individual/Group, 1 per month, 60 minutes
• 1:1 paraprofessional, Individual, Daily
• 1:1 nurse, Individual, Daily (Ex B 59)
• Assistive Technology Devices: Jelly bean switches, BIGmack Switches, Software: HelpKidzLearn, Tarheel Reader, YouTube, and Adaptive Seating: Wheelchair Adaptive Seating: Alternative seating options for classroom (Ex B 60)
• SUPPORTS FOR SCHOOL PERSONNEL ON BEHALF OF THE STUDENT: Two-person transfer training; Training for vision adaptations and functioning; Seizure safety training; Training for g-tube safety; Training for assistive technology use throughout day; and Training for asthma awareness and precautions (Ex B 60)

C 01/06/2022 Findings of Fact and Decision IH# 210624

Decision related to the 21-22 school year which found the UP to be an appropriate Student placement and directed District funding of UP Tuition and related costs. (Ex C 53-54)

D 03/01/2022 New York City (NYC) Department of Education (DOE) IEP The DOE IEP confirms the Student’s severe array of disabilities and challenges calling for unique special education services and supports. IEP includes:

• Classification of Traumatic Brain Injury (Ex D 1)
• Student challenges are briefly described: “non-verbal, non-ambulatory student diagnosed with an acquired brain injury due to Seizure Disorder he spent the first six months of life in the NICU in order to address his complex and emerging medical needs. This is secondary to: Intraventricular Hemorrhage, Necrotizing Enterocolitis with Bowel Resection (and revision), MRI showing “brain cyst”, and seizures at month four ([REDACTED]). He is diagnosed with Optic Atrophy and is G-tube dependent. [Student] is legally blind due to Optic Atrophy; he will visually attend to those speaking using head turn and brief fixations. [Student] has highly intensive management needs across all areas requiring a high degree of individualized attention and intervention. Additionally, due to [Student]’s brain-based disability, there are severe impairments in his cognition, language, memory, attention, vision, reasoning, abstract thinking, problem solving, and informational processing.” (Ex D 4)
• Student is fed via a g-tube (Ex D 24), as directed by a 1:1 Nurse (Ex D 26)
• IEP includes that the Student “requires a 1:1 nurse to manage his medical needs at all times” (Ex D 27)
• Student is noted to require assistive technology (Ex D 42)
• Student is recommended to: Special Class 12:1+(3+1); Occupational Therapy; PCAT; Physical Therapy; Speech Language Therapy (Ex D 62); Vision Education Services; Health Paraprofessional; Assistive Technology (Ex D 63)
• Student is recommended to a 12-month program (Ex D 64)
• Student is recommended to special education transportation services and supports (Ex D 67-68) The IEP generally draws upon and includes the information contained in the UP IEP. (Ex

The IEP notes the need for evaluation: “[Student] would significantly benefit from a new formal NYC Department of Education (DOE) AT evaluation. Continuing to trial various access points and devices would be advantageous as it would provide multiple opportunities to support [Student] in his increasing comprehensive performance with switch use, vision accommodations for AAC advancement, and maximization of his overall communication skills.” (Ex D 6)

The IEP notes the impact of Covid-19 upon Student progress, including lack of nursing coverage. (Ex D 11)

E 06/14/2022 [REDACTED] Enrollment Contract 2022-2023 School Year

UP Tuition Contract includes:

• a 12-month school year
• Base Tuition of $[REDACTED]
• Supplemental Tuition for related services, transportation, individual nursing services or assistive technology devices and equipment calculated at a rate of $[REDACTED] per hour for individual treatment and $[REDACTED] per hour for therapy in group settings, which for the Student Total $[REDACTED] (Ex E 1-2)

Guardian is obligated to payment of the Contract via signature. (Ex E 7)

F 06/16/2022 Transportation Agreement 2022-2023 School Year

Transportation Agreement includes a rate of $[REDACTED]. (Ex F 2)

Guardian is obligated to payment of the Contract via signature. (Ex F 5)

G 06/17/2022 Ten Day Notice (TDN) 2022-2023 School Year

Parent provides appropriate notice to the District of objection to the recent IEP, intent to continue enrollment at the UP, and intent to seek District funding.

I 08/16/2022 Affidavit [REDACTED]

UP Director provides Testimony that includes:

• Witness qualifications (Ex I 1)
• General characteristics of the UP, such as: private, not-for-profit, and highly specialized special education program in New York City created for children who suffer from acquired brain injuries or brain-based disabilities; 12-month extended school-year calendar and offers all services during its extended school day, which runs from 8:30 a.m. to 5:00 p.m.; interdisciplinary program with students, many of whom are non-verbal and non-ambulatory; Every student at [REDACTED] requires a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit from the educational program; Many students additionally require a 1:1 nurse to attend to their medical needs; has four (4) 6:1:1 classes and two (2) 8:1:1 class; serves school age students; Most students have a DOE disability classification of Traumatic Brain Injury (TBI) and have management needs that are either intensive or highly intensive, and which require a high, or significant, degree of individualized attention and intervention throughout the school day; provides its students with individualized education plans (IEP), geared toward improving functioning skills appropriate to their cognitive, physical and developmental levels, through a collaborative and multi-disciplinary approach which incorporates the best practices from the medical, clinical, and educational fields; students are instructed utilizing the most effective strategies with evidence-based practices; These practices include, but are not limited to, direct instruction, cognitive strategies, behavior management, physical rehabilitation, therapeutic intervention, social interaction, and transition services. In addition to a period of direct instruction, academic instruction is incorporated throughout the school day; a wide variety of related therapy services, including occupational therapy, physical therapy, speech therapy, vision education, assistive technology services, parent counseling and training, and services for the deaf and hard of hearing; therapy services are designed to support the education of students and are provided to the students, as needed, usually in 60-minute intervals; related services are provided using a push-in and pull-out model, which ensures that each student’s therapeutic goals are addressed in multiple locations (Ex I 2)
• Witness details the Student’s areas of disability related to academics and medical challenges (Ex I 3)
• Student has attended the UP, since the 18-19 school year

During the 2022-2023 school year, Student UP services and supports include:

• a 6:1:1 class
• related services on a weekly, push in/pull out basis: OT 5x60; PT 5x60; SLT

4x60, individually and 1x60 in a group; Assistive Technology services 1x60; Vision Education Services 3x60; and Music Therapy 3x60 individually and 1x60 in a group

• Student has an AT device and related supports and devices for use throughout the day across all school environments
• Student’s support staff is provided with training to handle and address his unique conditions
• Student requires a 1:1 nurse to attend to his complex medical needs during the school day
• Student has a 1:1 paraprofessional all day, every day
• Student’s grandmother receives 60-minute PCAT sessions monthly to support Student’s educational needs
• Student receives special transportation accommodations, including a 1:1 travel paraprofessional, air conditioning, a lift bus with a wheelchair ramp, and limited travel time (Ex I 3)
• A class with peers who have similar needs and abilities (Ex I 4)
• Witness observed the Student and is aware of Student progress
• Student continues to make progress in academic and social domains, including related services
• Witness attended the 03/01/2022 Student IEP meeting
• Witness disagrees with the lack of a Music Therapy recommendation
• Witness disagrees with the IEP recommendation of a 12:1:4 classroom, stating: “Such a large class size is inappropriate for [Student] and will be too distracting for him, and will not allow him to have sufficient individual direct instruction with the teacher.

Additionally, a 12:1:4 class in District 75 is intended more for habilitation and treatment, whereas [Student] is capable of making more academic progress given the appropriate interventions such as he receives at [UP].” (Ex I 4)

• Witness also objects to the DOE IEP due to its rejection of the 1:1 Nurse for the school day and transportation, which Student has had “since 2020, due to ongoing gastrointestinal and respiratory concerns which require constant monitoring and intervention as needed (Ex I 4-5)

J 08/16/2022 Affidavit [REDACTED]

Student grandmother, and guardian, provides Testimony that includes:

• Attendance at the 03/01/2022 IEP meeting
• Disagreement with the lack of a 1:1 Nurse for the Student
• Cooperation with the DOE to develop educational programs for the Student
• Currently unemployed and unable to pay the up front UP tuition and await for reimbursement (Ex J 1)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 14-00[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute 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)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G., v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 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 Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2022-2023 School Year

DOE failed to avail itself of the opportunity to defend against the allegations contained in the DPC.

The DOE has evidenced neither the development of an appropriate IEP, nor placement, for the commencement of the 22-23 school year.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 22-23 school year.

An IEP was developed for the Student, via an IEP meeting of 03/01/2022. (Ex D)

The IEP clearly sets forth a need for Student special education services and supports.

The IEP includes that the Student “requires a 1:1 nurse to manage his medical needs at all times.” However, the DOE refused to include Nursing service in the IEP. (Ex D 27)

The IEP also indicates a clear need for 12-month services and special education transportation. (Ex D 64, 67-68)

The IEP fails to offer the Student a FAPE, in part due to its lack of Nursing Services.

The IEP clearly details the Student need for 1:1 Nursing services. (Ex D 4, 26 & 27)

Uncontroverted Testimony supports the contention that the IEP is not sufficient to serve the Student’s needs. (Ex I 4-5)

I find the DOE failed to offer the Student a FAPE for the 22-23 school year.

UP Placement for the 22-23 School Year

Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex B, D, I & J and T 42-44)

UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 22-23 school year.

TUITION FUNDING 22-23 School Year

The DOE has denied a FAPE to the Student for the 22-23 school year.

The UP provides an appropriate Student placement and program for the 22-23 school year.

Parent is entitled to funding for the UP, 22-23, Tuition.

UP Tuition Contract includes:

• a 12-month school year
• Base Tuition of $[REDACTED]
• Supplemental Tuition for related services, transportation, individual nursing services or assistive technology devices and equipment calculated at a rate of $[REDACTED] per hour for individual treatment and $[REDACTED] per hour for therapy in group settings, which for the Student Total $[REDACTED] (Ex E 1-2)

Guardian is obligated to payment of the Contract via signature. (Ex E 7)

Guardian testifies she is unable to pay the UP tuition based on her limited income. (Ex J)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here... parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769 F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Guardian choose to continue Student placement at UP, without any DOE alternative.

Parent needs to meet the burden of production and persuasion with respect to whether they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12- 132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find the Guardian established an inability to fund the UP Tuition and await reimbursement.

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 22-23 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction... and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

The DOE IEP and UP IEP both call for special education transportation. (Ex B 58 & D 67-68)

I find evidence supports the provision of a special education transportation for the Student for the 22-23 school year.

Student special education transportation services include: a Nurse, AC, Lift-Bus/Wheelchair Ramp, and Limited Travel Time of 60 Minutes. (Ex B 58)

Transportation Agreement includes a rate of $[REDACTED]. (Ex F 2)

Guardian is obligated to payment of the Contract via signature. (Ex F 5)

No alternative rate or form of transport is proposed by the DOE.

I find the Student is entitled to Special Education Transportation as contracted.

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right... to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]).

A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related service’s needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8 NYCRR § 200.5 (g)

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration. The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]).

In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]).

Regarding a private neuropsychological evaluation, a CSE must consider independent educational evaluations whether obtained at public or private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, consideration does not require substantive discussion, or that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 [2d Cir. 2018], citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993]; see Michael P. v. Dep't of Educ., State of Hawaii, 656 F.3d 1057, 1066 n.9 [9th Cir. 2011]; K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 805-06 [8th Cir. 2011]; Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir. 1988]; James D. v. Bd. of Educ. of Aptakisic-Tripp Community Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009]).

In this case the DOE has failed to offer a FAPE, for the 22-23 school year.

Parent seeks an independent neuropsychological evaluation, objecting to the evaluation completed in February of 2022. (Ex A 7, T 52)

Student is clearly evidenced to have a complex educational and medical history.

A Psychoeducational evaluation, of 01/25/2022, is entered into evidence, which includes details confirming the Student’s severe medical and educational needs. (Ex 2-1)

The Evaluation details Student delay, however, it fails to make any actual recommendations. (Ex 2-6)

Parent Attorney also argues for entitlement to an Independent Neuropsychological Evaluation, at DOE expense. (IHO Ex VI 14-15)

Parent points to an undisclosed Decision, Case 229655, which noted disagreement with the DOE failure to appropriately evaluate the Student. (IHO Ex VI 15)

This reference does not weigh upon the present matter.

Parent DPC does outline a request for an IEE and the basis for the request:

a. DOE failed to ever conduct a neuropsychological evaluation despite its own

(Ex A 6)

Essentially, the DOE has never conducted a Neuropsychological Evaluation of the Student and seeks to use the failure to conduct this evaluation as a shield to prevent such an evaluation from ever being conducted, since the Parent has no evaluation available for objection.

The DOE does not evidence that such an evaluation is unnecessary nor unreasonable under the circumstances.

Considering the Student’s array of medical and educational challenges it seems reasonable to request the evaluation, from the DOE. The DOE has certainly had enough time to perform the evaluation or respond that it is in some way unnecessary.

At this point the evaluation was requested and no response came from the DOE.

I find the Student is indeed entitled to the requested IEE, as Ordered below.

Another evaluation is referred to in the documents, though not requested. In June of 2022, the DOE confirms the Parent request for an Assistive Technology (AT) Evaluation. (Ex 12) The DOE denies the request for AT Evaluation, citing a lack of a specific form. (Ex 13) However, the DOE calls an AT evaluation in the IEP. (Ex D 6)

Parent is not seeking an AT evaluation. However, the information, presented at Hearing, indicates some confusion on the part of the DOE regarding evaluating the Student.

ORDER

• The Department of Education (DOE) failed to offer the Student a FAPE for the 2022-2023 school year.
• [REDACTED] [UP] serves as an appropriate 22-23 Student placement and program.
• The DOE shall directly fund the cost of Student attendance, at [REDACTED] [UP] for the 12-month, 22-23 school year, as Per the Enrollment Contract, including:
• Full Tuition for the 2022-2023 school year
• Costs of related services: Occupational Therapy, Physical Therapy, Speech-Language Therapy, Vision Education Services, Music Therapy, and Parent Counseling and Training
• 1:1 private duty nursing services
• 1:1 paraprofessional.
• The DOE shall directly fund cost of Student transportation to and from [REDACTED], as per the Transportation Agreement, rate $[REDACTED].
• The DOE shall fund an Independent Neuropsychological Evaluation, of the Student.
• The DOE shall provide Parent with any documents or forms necessary to facilitate payment under this Order, within ten days of the date of this Order.
• 7. This decision is subject to appeal and review by the State Review Officer.

DATED: October 20, 2022

DANIEL AJELLO

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.

Footnotes

[9] Email Correspondence between DOE, IHO and Parent’s Counsel

New York City Department of Education, Impartial Hearing Decision

INTRODUCTION

ORDER