New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576322 - NYC: 229007

FINDINGS OF FACT AND DECISION

Case Number: 229007

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: July 8, 2022

Date(s) of Hearing: August 22, 2022 (pendency hearing)

November 7, 2022

November 10, 2022

November 21, 2022

November 29, 2022

Actual Record Closed Date: January 14, 2023

Date of Decision: January 17, 2023

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

For the Department of Education:

REDACTED Attorney (Via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

For the Department of Education:

REDACTED Attorney (Via videoconference platform)

REDACTED Assistant Principal (Via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 10, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

For the Department of Education:

REDACTED Attorney (Via videoconference platform)

REDACTED School Psychologist (Via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

REDACTED Teacher and Co-director (Via videoconference platform)

For the Department of Education:

REDACTED Attorney (Via videoconference platform)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 29, 2022

For the Student:

REDACTED Attorney (Via videoconference platform)

REDACTED Attorney (Via videoconference platform)

Parent Parent (Via videoconference platform)

For the Department of Education:

REDACTED Attorney (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 July 8, 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 2022-2023 extended school year. (P-Ex. A). The District asserted, inter alia, that the Student was provided with a FAPE for the 2022-2023 extended school year. (Tr 40-43).

This IHO was appointed on July 20, 2022. The resolution period ended on August 7, 2022.

On August 17, 2022 a prehearing conference was held. A pendency hearing was held on August 22, 2022 and an interim order of pendency was issued on August 31, 2022. During the pendency hearing the Parent entered two exhibits into evidence. (P-Pend-Exs. A, B). The order directed the District to continue funding the Student’s unilateral placement and provide special transportation which included 1:1 nursing. (IHO-Ex. II). Status conferences were held on September 14, 2022 and October 13, 2022.

A closed hearing on the merits commenced on November 7, 2022 and continued on November 10, 2022; November 21, 2022; and November 29, 2022. Parent was represented by REDACTED and REDACTED. The Parent presented two witnesses at hearing: the Parent herself and REDACTED, the Student’s lead teacher and co-director (“Teacher”) of the REDACTED, the Student’s unilateral placement (“NPS”). The Parent entered into evidence 20 exhibits. (P-Exs. A-T). ^[3] The DOE was represented by REDACTED who presented two witnesses at hearing: REDACTED, the assistant principal (“Assistant Principal”) at the recommended school location; and REDACTED, the school psychologist who ran the Student’s November 23, 2021 IEP meeting. The DOE entered into evidence 15 exhibits. (D-Exs. 1-15). Closing briefs were submitted on December 23, 2022.

The record was closed on January 14, 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

The Student is REDACTED years old and chronologically in the third grade. (Tr 156). He is non-verbal, non-ambulatory, and presents with significant cognitive and global development delays. (Tr 156-158). He has diagnoses of cerebral palsy (“CP”) and REDACTED, a severe seizure disorder.^[4] (Tr 156-158, 244-245). He needs assistance with all activities of daily living (“ADLs”). (Tr 246). The Student has attended the REDACTED, a unilateral placement, since September of 2019. (Tr 155). On November 23, 2021 the Committee on Special Education (“CSE”) convened and developed an Individualized Education Program (“the IEP”) with a classification of Multiple Disabilities, which recommended, inter alia, a 12:1+(3:1) special class in a District 75 specialized school; related services and special transportation including a 1:1 nurse on the bus. (DOE Ex. 1 pp. 26-27, 30-31). On June 13, 2022 the Parent rejected the District’s recommended program and placemen, informed the District that the Student would remain at the REDACTED, and stated she would seek public funding for same. (P-Ex. M). The Parent filed the DPC on July 8, 2022. (P-Ex. A).

ISSUES

The DPC alleged that the DOE failed to provide a FAPE for the Student for the 2022-2023 extended school year. The Parent alleged, inter alia, that the IEP program was not tailored to the Student’s unique needs nor calculated to confer educational benefit to the Student; the DOE failed to meet its triennial evaluation requirements; the DOE failed to address the Student’s communication needs and did not administer an assistive technology evaluation; the IEP program was predetermined; the CSE was not duly comprised and it lacked a medical professional; the CSE failed to meaningfully consider the input of the Parent and NPS professionals; the DOE failed to conduct a Functional Behavioral Analysis (“FBA”) and to implement a Behavior Intervention Plan (“BIP”); the class size and student to teacher ratio are too large; the DOE failed to consider which educational methodologies would promote the Student’s progress; and the Parent could not access or tour the DOE’s recommended placement. (P-Ex. A pp. 2-5). The Parent provided documentary evidence and witness testimony to support her claims.

The Parent requests as relief: a determination that the DOE denied the Student a FAPE for the 2022-2023 school year; direct funding of the Student’s tuition at the REDACTED; door-to-door special education transportation with a 1:1 registered nurse during the 2022-2023 school year; fund the costs of meals on school days pursuant to Section 504 of the Rehabilitation Act; 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 p. 3). The DOE provided documentary evidence and witness testimony to support its assertions. (Id.)

FINDINGS OF FACT

• • The IEP, dated November 23, 2021, had an implementation date of December 7, 2021 and would have been in effect for the first five months of the 2022-2023 extended school year. (D-Ex. 1 p. 1). The IEP recommended a special classroom with a 12:1+(3:1) teacher-to-student ratio; adapted physical education; the related services of occupational therapy (“OT”), physical therapy (“PT”) and speech-language therapy (“SLT”) each three times weekly, 1:1, for 30-minutes sessions; a full-time paraprofessional for assistance with health and ambulation; and special transportation accommodations including 1:1 nursing services, a lift bus, limited travel time and fewer students. (D-Ex 1 pp. 26-27, 31).
• • According to the IEP, a number of reports and assessments were relied upon to develop the IEP, including an assistive technology (“AT”) “evaluation and trial period” dated October 23, 2018; an IEP dated December 22, 2020; a Vineland-3 assessment dated April 16, 2019; and OT, PT, SLT, special education and conductive educations reports dated August 2021. (D-Ex. 1 p. 1; Ex. 3 p. 2). The reports, one assessment and one referral are part of the record. (D-Exs. 1, 3, 5, 6, 7, 8, 9, 10, 11).
• • The IEP states that the Student was a “non-verbal and non-ambulatory student who is showing that he is aware and well related in his classroom environment at school.” (D-Ex. 1 p. 2). When given “meaningful sensory breaks, [he] attends and engages actively in all parts of the school day.” (Id.) The IEP notes that the Student’s expressive language comes from “facial expressions, tapping his stray and using his communication devise [sic].” (Id. p. 3). The IEP further notes that “He displays clear intentionality when reacting to prompts.” (Id. p. 4). The Student’s significant physical limitations are also described. (Id. pp. 6-8).
• • The IEP details the Student’s communication program:
• • [The Student] presents with challenges generating and understanding complex communication messages in both expressive and receptive language secondary to his medical diagnoses. At times, he will express himself or verbally via vocalization; however, he does not typically use verbal speech to communicate. Instead, he uses a variety of aided and unaided modes of communication throughout his day. [He] uses social smiles to express pleasure and facial grimaces to express distaste. Facial expression is at times paired with an open vowel sound at varying loudness levels, prosody, and tone to communicate pleasure/distaste. [He] reaches for desired items as well as looks towards preferred objects. [He] initiates and maintains eye contact and socially engages with familiar people. He uses a VOCA or eye-gaze device to express more complex messages as targeted.
• • [He] is working on fluency and processing of verbal information by using his button to respond to and express complex messages in therapy. During the summer term we have focused on review and utilization of core words (e.g. GO, STOP, MORE, DIFFERENT, LIKE, DON’T, YES, NO, HELLO, GOODBYE) to allow for participation in a variety of activities…He has continued to demonstrate improved turn-taking and timeliness of switch activation as evidence by attending to activity directions or questions and activating his button when the clinician has finished speaking. He benefits from verbal and visual cues, physical modelling/support, and extended pauses to use his button in therapy. Trials are also in progress to determine whether he benefits from use of an eye-gaze device. (D-Ex. 1 pp. 3-4).
• • The IEP states that the Student does not need an assistive technology (“AT”) device and/or service. (D-Ex. 1 pp. 1, 11). The IEP contains a goal for activities of daily living (“ADL”) that requires the Student to make requests using his “communication device.” (Id. p.18). The IEP references an AT “evaluation and trial period” dated October 23, 2018 and reflects that the Student “did not demonstrate an awareness of or understanding of abstract concepts in meaningful pictures symbols.” (D-Ex. 1 p. 1, Ex.13). The AT “Augmentative and Alternative Communication (AAC) Trial Period Plan” indicates that for a period of approximately three months the Student utilized a “dynamic display speech generating device with a communication application.” (D-Ex. 13). The device was called an “eyegaze tobii with communicator 5 and snap core.” (Id.) The speech-language therapy provider noted “[The Student] does not demonstrate awareness of or understanding of abstract concepts in meaningful picture symbols. Device used mainly for exposure…No intentional use, high distract [sic] at the real object level.” (Id.)
• • The record contains an “Assistive Technology Evaluation Referral” that was signed and dated in October 2018. (D-Ex. 5 pp. 1-7)^[5]. The Document was identified at hearing as an “assistive technology assessment”. (Tr 34; IHO-Ex. II). Upon closer review, the document appears to be a referral for an evaluation, signed and dated October 2018 by a teacher, an occupational therapist and a physical therapist. (D-Ex. 5). According to this referral, the Student communicated with facial expressions, eye-gaze and a reliable yes/no. (Id. p. 4). He used a communication board with PECS, tangibles, pictures and picture/symbols. (Id.) He had already been exposed to “step-by-step and Twin Talk static devices.” (Id.) The physical therapist noted that the Student had “communicative intent. Eager to communicate. Participatory and engaged.” (Id. at 5). The referral points to eye-gaze as a modality for communication as it noted “Eye gaze. Uncoordinate [sic] and non purposeful movement of body.” (Id.). The document indicates that the “Student [had] voluntary, isolated, controlled movements using” his eyes. (Id.) The occupational therapist noted that the Student did well initiating cause and effect toys. (Id. p. 6). The referral states that the Student has Ataxia; spasticity in LE; ataxic movements; and involuntary movements in trunk and UE (Id. pp. 5-6).
• • The IEP Management Needs section reflects that the Student requires a structured academic environment; extra time and adaptations to complete certain tasks; consistent positive reinforcement; teacher check in and assistance; the opportunity for breaks; support to improve social interactions; repetition and review; scaffolded differentiated instruction and assignments; graphic organizers and checklists; small group instruction, direct teacher modeling; collaboration with related service providers to target skills from generalization across varying contexts; consistent opportunities for generalization; visual and auditory cues, redirection, and visual schedules; multi-sensory learning opportunities.
• • On June 22, 2022 the District issued both a Prior Written Notice (Notice of Recommendation) (“PWN”) reiterating the recommendations of the November 2021 IEP and a school location letter (“SLL”) stating that REDACTED was the Student’s recommended school (“Recommended School”) building for the 2022-2023 extended school year. (D-Exs. 3, 4). The Parent received the letter. (Tr 275).
• • The Assistant Principal testified at hearing that the Recommended School was able to implement the Student’s IEP recommendations and had an appropriate seat open for him as of July 1, 2022. (Tr 53-54). The school has numerous students who have physical and cognitive disabilities similar to the Student. (Tr 65-69). The Recommended School has students who have seizure disorders which require calls to 9-1-1 and a medical response team. (Tr 70). The Recommended School is able to implement special education transportation, including 1:1 nursing, when it is included on a student’s IEP. (Tr 56). The Assistant Principal testified that 1:1 nursing for a student would have to be recommended in an IEP before accommodations were requested by the school. (Tr 62).
• • The School Psychologist served as district representative and school psychologist for the Student’s November 23, 2021 IEP meeting. (Tr 96). She testified that the IEP recommendations, including the goals, related services, classroom and management needs, were appropriate for the Student and would allow the Student to make progress in the least restrictive environment (“LRE”). (Tr 99-111). She testified that the Student did not require AT because he did not demonstrate awareness or comprehension to utilize the device. (Tr 113). The School Psychologist also testified that to recommend and implement transportation nursing the IEP team would need a number of forms that the Parent must complete. (Tr 115). She stated that the Parent was sent a waiver to amend the IEP to include nursing. (Tr 116). The IEP clearly states that the Student is to receive 1:1 transportation nursing and includes a detailed note as to why the 1:1 transportation nurse was necessary. (D-Ex. 1 p. 31).
• • The Teacher testified that the REDACTED has a total of 13 students in two classrooms. (Tr 146). Each classroom has one lead teacher and a 1:1 REDACTED for each student. (Tr 148-149). The REDACTED uses a transdisciplinary model to individualize its approach for each student. (Id.) The school offers, and the Student receives, OT, PT, SLT, and conductive education.^[6] (P-Ex. F). The Teacher explained that the REDACTED uses AT which includes low technology visual aids, tactile cues, environmental controls, gait trainers, standing equipment as well as high tech communication devices and eye-gaze computers. (Tr 150). Every student in the classroom uses AT devices. (Tr 212). The Teacher described the Student’s disabilities, including his frequent and intractable seizures. (Tr 156-161). The Student has a short attention span and is distractible. (Id.) Although the Student’s academic instruction peaks at the first-grade level, most of his work is not at a first -grade level due to cognitive delays and his “skill sets are very scattered.” (Tr 156). The Student receives instruction from the teacher on a 1:1 basis for three hours per week. (Tr 179-180). Academic instruction also occurs during in a full class format as well as 1:1 with the REDACTED assistants. (Tr 184). All related services are provided in 60-minute sessions. (Tr 168). The Student is accompanied by a 1:1 nurse and a 1:1 REDACTED throughout the day. (Tr 188).
• • The Student is primarily a behavioral communicator. (Tr 156). He uses AT consisting of low-tech communication symbols (“PCS”) and voice output switches. (Tr 161, 202-206). The teacher explained that a VOCA^[7] is any device that is used to generate speech for nonverbal students. (Tr 202-203). The Student also uses switches that can connect to appliances such as modified scissors or a blender. (Tr 204). The Student most recently started trialing an Eye-Tech eye-gaze device that is on-loan from the vendor. (Tr 161-162). He currently requires assistance using the device. (Tr 163). The Student uses the eye-gaze computer in class and has a “growing repertoire of familiar visual aid symbols, and picture communication symbols he understands and uses with intent.” (Tr 174). The Teacher testified that he was unable to use an iPad as AT because of his physical limitations. (Tr 193-194). The Teacher testified that the Student can use his extremities; however, he does not have full functional control over his body. (Tr 208-209). Neurologically the Student can show cognitive intent to use his extremities, but due to his spastic and choppy movements it would be “unfair to ask him to use his hands to do such a delicate task as to communicate.” (Tr 209-210). The Teacher testified that the Student has meaningful intent, and described two examples. (Tr 218-219). The Parent testified about the Student’s AT devices. (Tr 281-282). She had seen the eye-gaze device in school and explained that his “eyes are pretty much his mouth” when his uses the device. (Tr 281-282). The Parent uses switch buttons at home. (Tr 283, 285-286).
• • The Student made progress during the 2022-2023 school year. (Tr 162-163, 173-175; P-Exs. H-L).
• • The Teacher testified that the November 23, 2021 IEP was not appropriate for the Student, as the classroom size was too large and distracting, the related service sessions were too few and too short, and there was no assistive technology. (Tr 165-169). The Parent testified that she did not agree with the November 2021 IEP. (Tr 252-253). She was concerned that the Recommended School setting was too large and could exacerbate the Student’s seizure activity; the school location was too far from a hospital, and no AT was recommended on the IEP. (Tr 252-253, 259). The Parent testified that no evaluations were administered prior to the November 2021 IEP. (Tr 258, 281).
• • The Parent testified that Student has made “phenomenal” progress at the REDACTED. (Tr 260-261, 289-290). She stated that following a brain injury at birth, the Student was in a “vegetated [sic] state” for three-and-a-half years. (Tr 276). She later explained that “He was unable to do anything. He laid down. He barely cried. It was like there was not even a baby present.” (Tr 289). The Student attended a preschool where she started to see a “little progression.” (Tr 289). The Student enrolled in the REDACTED at the age of REDACTED, during the summer of 2019. (Tr 291). The Parent cannot work due to her son’s medical needs and she relies on public assistance. (Tr 262). She testified that she has attended all of the Student’s IEP meetings. (Tr 264). The Parent testified that she visited the Recommended School and received a tour. (Tr 275-276). She could not recall who gave her the tour. (Id. 275). She stated that she tried to call the school and no one returned her calls. (Id. 276).
• • During the 2021-2022 school year, the Parent requested a 1:1 transportation nurse as well as 1:1 fulltime nursing during the school day. (See P-Exs. N-T). As late as October 19, 2021 the Parent sent the District a request for medical accommodations, completed by the Student’s physician, stating that the Student required “1:1 attention at all times” and “1:1 attention on the school bus” due to increased seizure activity. (P-Ex. R p. 3). This document stated that the Student required a “bus para” during transportation. (emphasis added) (Id.) The IEP reflects that a CSE member spoke with the Student’s doctor prior to the IEP meeting; the doctor had by then determined that the Student required 1:1 nursing during transportation. (D-Ex. 1 p. 31). The November 2021 IEP recommended a transportation nurse. (D-Ex. 1 p. 31). A request for medical accommodations stating the need for 1:1 nursing during the school day and 1:1 nursing during transportation was signed by Student’s physician on January 20, 2022. (D-Ex. 15). The Student currently has both types of nursing services. (Tr 259-260).

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 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 2022-2023 extended school year. The District asserted that it provided a FAPE. (IHO-Ex. II pp. 3-7). The IEP meeting was appropriately constituted. (D-Ex. 2). The IEP itself satisfied the requirements set forth by federal and NYS law.^[8] The IEP team did consider the input of the NPS and the Parent, it simply did not agree with them. (D-Ex. 1 p. 33). The Parent participated in the IEP process. (Tr 264, D-Ex. 2). The record does not reflect that the IEP recommendations were pre-determined, nor that an FBA nor BIP were appropriate. The School Psychologist testified that the IEP recommendations were appropriate for the Student. (Findings ¶ 10) ^[9]. The Parent was able to tour the Recommended School. (Tr 275). This IHO notes that the Recommended School would have been appropriate and would have been able to implement the Student’s IEP. (Findings ¶ 9). The IEP, however, was not “reasonably calculated to enable [the Student] to make progress in light of [his] circumstances.” ^[10] The District failed to have the Student evaluated for assistive technology in a timely and appropriate manner; therefore, the resulting IEP failed to address the Student’s communication needs. The IEP cites to an “assistive technology assessment and trial period” dated October 23, 2018. (See Findings ¶ 1, 5). There is, however, no AT assessment in the record. The AT documents in the record consist of a “trial period” of an eye-gaze device and an AT evaluation referral form (emphasis added). (Findings ¶¶ 5-6; see also D-Exs. 5, 13). There is no evidence that a full AT assessment was ever performed. The IEP did not recommend an AT device and indicated that none were necessary due to the Student’s lack of “awareness of or understanding of abstract concepts in meaningful picture symbols.” (Findings ¶ 5). The School Psychologist concurred. (Findings ¶ 10).

The body of the IEP contradicted the determination that no AT was needed. (Findings ¶ 4). The IEP describes the Student’s use of behavioral communication, his ability to engage with familiar people, and his use of both a VOCA and an eye-gaze device to express himself. (Id.) One of the IEP goals actually features an AT device. (D-Ex. 1 p. 18). The DOE AT referral and “trial period” documents were outdated when the November 2021 IEP was developed; by then the documents were three years old. (D-Exs. 5, 13). The outdated DOE AT referral made clear that even at the age of REDACTED the Student had communicative intent, had a reliable yes/no, utilized a communication board and had a steady eye-gaze. (Findings ¶ 6). The Teacher testified that assistive technology can be “low tech” or “high tech.” (Findings ¶ 12). The Student uses both kinds of AT. (Id.) The IEP has no tech. If a full AT assessment was actually performed in the fall of 2018, by November 2021 it was no longer a valid indicator of the Student’s abilities. This Student has “unique needs” which include the need for appropriate AT for communication and other tasks. The IEP was not substantively appropriate as it was developed using outdated and inappropriate AT documents and recommended no assistive technology for the Student.

The District has failed to carry its burden of proof and persuasion that it provided a FAPE to the Student for the 2022-2023 school year. The Parent has satisfied Prong I of the Burlington/Carter analysis. The Parent has demonstrated that the REDACTED was appropriate. The unilateral placement has tailored a program for the Student and provides him with 1:1 and small group academic instruction and individualized 1:1 related services that have enabled him to make progress. (Findings ¶¶ 11, 13, 15). The equitable considerations support the Parent. She attended all IEP meetings and submitted a ten-day notice. (Tr 264; P-Ex. M). The Parent signed an enrollment contract with the REDACTED 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. D p. 4). The Parent testified that she would have enrolled the Student in a DOE placement if it was appropriate. (Tr 261-262). The Parent prevails on Prong III of Burlington/Carter.

The Parent testified that she is not employed and relies on public assistance. (Tr 262). Direct payment of tuition and transportation is permissible. This FOFD will not determine the claim regarding public funding for school meals as this Student is NPO and there is not enough information in the record to determine whether he is already receiving reimbursement and/or provision of his meals from another source. (P-Ex. H p. 11).

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

• • The District failed to provide a FAPE to this Student for the 2022-2023 extended school year;
• • The District is directed to directly fund/and or reimburse the tuition for the unilateral placement of the Student at the REDACTED during the 2022-2023 extended school year; and
• • The District shall provide round trip special education transportation for the 2022-2023 extended school year, consisting of air-conditioned bus transportation equipped with a wheelchair lift, with limited travel time and 1:1 nursing services.

SO ORDERED.

DATED: January 17, 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

Exhibit

Document

Date

Pages

A Due process complaint 7/08/22 7

B REDACTED brochure 22-23 sy 2

C REDACTED program description 22-23 sy 3

D Student enrollment contract 6/20/22 9

E Affidavit of REDACTED 10/14/22 1

F Student Schedule 22-23 sy 1

G Student attendance 22-23 sy 1

H Special education progress report Aug 2022 8

I Speech and language progress report 8/05/22 4

J Conductive Education progress report 8/05/22 4

K Occupational therapy progress report 8/08/22 10

L Physical therapy progress report 8/20/22 7

M Ten-day notice 6/13/22 2

N A series of emails regarding nursing request various 2

O A series of emails regarding medical forms various 6

P Email to REDACTED from REDACTED 10/04/2021 2

Q A series of emails regarding nursing request various 2

R A series of emails regarding accommodations form various 6

S A series of emails regarding nursing request various 5

T

A series of emails regarding nursing request various

3

P-Pend. A

Due process complaint

7/08/22

7

P-Pend. B

Findings of Fact and Decision DOE case no. 215071

7/19/22

46

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

1

Individualized Education Program (IEP) - 2022-2023 School Year

11/23/21

34

2

IEP Meeting Attendance Page

Undated

1

3

Prior Written Notice

6/22/22

4

4

School Location Letter

6/22/22

2

5

Assistive technology referral undated

12

6

Occupational therapy progress report

8/06/21

7

7

Physical therapy progress report

8/09/21

6

8

Speech and language progress report

8/04/21

5

9

Special education progress report

Aug. 2021

7

10

Conductive education progress report

8/06/21

4

11

Vineland 3 Evaluation

4/16/29

26

12

Due process complaint

7/08/22

7

13

Augmentative alternate communication trial period plan

10/23/2018

1

14

General medical administration form

9/07/2022

1

15

Request for medical accommodations to be completed by treating physician

1/20/2022

2

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

I

Withdrawn n/a n/a

II

Parent’s Closing Brief

12/23/2022

23

III

DOE Closing Brief

12/23/2022

13

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.”

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered into the Record,” to this decision.

[4] REDACTED is a “severe form of childhood epilepsy” which is characterized by recurrent seizures of varying types and “mental impairments.” (Tr 158; P-Ex A p. 2)

[5] Parts of the document are blurry. (D-Ex. 5). Pages 8-9 appear to be a PWN dated August 8, 2017. (Id.)

[6] The Teacher explained that conductive education, which is not commonly used in the United States, is a therapy used with children who have cerebral palsy.

[7] Voice Output Communication Aid.

[8] See 34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2).

[9] References to the detailed “Findings of Fact” section found supra shall be referred to as “Findings” followed by the paragraph number(s) as appropriate.

[10] See Endrew F., 137 S.Ct. at 1001.