Impartial Hearing Decision

CASE NUMBER: 585449

FINDINGS OF FACT AND DECISION

Case Number: 585449

Student’s Name: REDACTED REDACTED

School District: REDACTED

Hearing Requested by: Parent

Request Date/Date Complaint Filed: September 30, 2022

Date(s) of Hearing: November 14, 2022

February 24, 2023

March 17, 2023

March 20, 2023

March 23, 2023

April 3, 2023

April 4, 2023

April 25, 2023

May 11, 2023

May 19, 2023

Actual Record Closed Date: May 25, 2023

Date of Decision: May 25, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 14, 2022

For the Student:

REDACTED REDACTED, Esq.

For the District:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON February 24, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON March 17, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, Principal of the REDACTED

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON March 20, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, Special Education teacher, REDACTED

REDACTED REDACTED, Bilingual Speech-Language Pathologist, REDACTED

REDACTED REDACTED, Assistant Principal, REDACTED REDACTED

REDACTED REDACTED, Principal, REDACTED REDACTED

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON March 23, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, Speech-Language Pathologist, REDACTED

REDACTED REDACTED, Certified School Psychologist and REDACTED

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON April 3, 2023

For the Student:

REDACTED REDACTED, Parent

REDACTED REDACTED, Sister

Dr. REDACTED REDACTED, REDACTED Medical Center

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, Certified School Psychologist and REDACTED

REDACTED REDACTED, REDACTED REDACTED

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON April 4, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON April 25, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON May 11, 2023

For the Student:

None

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, REDACTED REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED ON May 19, 2023

For the Student:

REDACTED REDACTED, Parent

For the District:

REDACTED REDACTED, Esq.

REDACTED REDACTED, REDACTED of Special Education

REDACTED REDACTED, REDACTED REDACTED

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 30, 2022. Ex. 5.^[1] On October 14, 2022, I was appointed by the Hempstead Union Free School District (the “District”) to hear this matter. Parent, REDACTED, alleges that the District failed to provide REDACTED with of a free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years. As relief, REDACTED seeks a placement for REDACTED at a residential school, home-based ABA therapy, an REDACTED consultant, an assistive technology evaluation (“AAC evaluation”), a functional behavioral assessment (“FBA”), and compensatory educational services for REDACTED for alleged FAPE deprivations during the 2020-2021, 2021-2022 and 2022-2023 school years. Ex. 5. The District filed a Response to the DPC on October 12, 2022. Ex. 6.

I conducted a prehearing conference on November 14, 2022, after the conclusion of the resolution period. Counsel for the District, REDACTED REDACTED, Esq., and counsel for REDACTED, REDACTED REDACTED, Esq., appeared. A stenographic record was made of the conference. At the time of the prehearing conference, REDACTED was not attending school and was receiving home instruction from an agency secured by the District; District counsel reported that, as of the start of the school year in September, it had secured 1:1 nursing services to permit REDACTED to attend school. PHC I Tr. 6-9. ^[2] The relief sought by REDACTED was discussed in detail. PHC I Tr. 5-11.

Counsel reported that they continued to discuss resolving this case through settlement. PHC I Tr. 5. Counsel also reported that in a prior proceeding, the parties had entered into an interim resolution agreement, in which the District agreed make efforts to locate a residential placement which would accept REDACTED; the residential schools to which the District applied on REDACTED’s behalf had rejected the applications. PHC I Tr. 12, 14; see also Exs. 2, 3, 4, 40-49. Witnesses, scheduling, and procedural matters were discussed. At the conference, the following mutually-agreed upon hearing dates were scheduled: December 20 and December 21, 2022, January 10, January 11, January 12, January 13, January19, January 20 and January 23, 2023, with the understanding that the dates might change based upon availability of witnesses. IHO Ex. I. The District subsequently requested an adjournment of the December dates due to witness availability.

On January 10, 2023, counsel reported that the parties continued to negotiate the settlement of this case and requested additional time to continue with the settlement process. A telephone conference was scheduled for February 17. IHO Ex. II.

On February 1, Ms. REDACTED informed me that REDACTED had discharged Ms. REDACTED as her attorney, and Ms. REDACTED withdrew as counsel of record. I contacted REDACTED, informed her of the February 17 conference, and provided her with procedural information. IHO Exs. III, IV.

REDACTED requested an adjournment of the February 17 date in order to continue to try to secure an attorney or advocate to represent her (IHO Ex. V); the adjournment request was granted and the conference was rescheduled for February 24.

A second prehearing conference was conducted on February 24, 2023. Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the conference. PHC II Tr. 3-4. REDACTED confirmed that she was no longer represented by counsel; and I informed her that she was entitled, if she wished, to find another attorney or an advocate to represent her and advised of her procedural rights and the steps in the hearing process. PHC II Tr. 6-7, 13-17, 19. REDACTED continued to receive some home instruction hours. PHC II Tr. 12. I encouraged REDACTED to consider sending REDACTED, on a trial basis and without prejudice to her claims in this proceeding, to the REDACTED REDACTED program recommended by the District. PHC II Tr. 13. Mutually agreed-upon hearing dates were scheduled for March 17, March 20, March 22, March 23, March 29, April 3 and April 4; and REDACTED consented to the hearing being conducted via videoconference. PHC II Tr. 26; IHO Ex. VI. I informed REDACTED that, should she secure an attorney or advocate to represent her, I would adjust the scheduled hearing dates such that her attorney or advocate would be able to participate in the hearing. PHC II Tr. 19.

On March 17, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. Ms. REDACTED presented an opening statement on behalf of the District. Tr. 25-32. District Exhibits 1 through 56 were admitted in evidence. Tr. 13-18. REDACTED REDACTED, principal of the REDACTED testified on behalf of the District.

On March 20, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. REDACTED REDACTED, special education teacher, REDACTED; REDACTED REDACTED, bilingual speech-language pathologist, REDACTED; REDACTED REDACTED, assistant principal, REDACTED REDACTED; and REDACTED REDACTED, principal, REDACTED REDACTED, testified on behalf of the District.

On March 23, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. REDACTED REDACTED, a speech-language pathologist employed by REDACTED, and REDACTED REDACTED, certified school psychologist and REDACTED, testified on behalf of the District.

On April 3, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. Ms. REDACTED continued her testimony on behalf of the District. District Exhibit 57 was admitted in evidence. The District rested its case. Dr. REDACTED REDACTED, from the REDACTED Medical Center, and REDACTED REDACTED, REDACTED’s sister, testified on behalf of REDACTED REDACTED commenced her direct testimony.

On April 4, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. REDACTED was cross-examined by Ms. REDACTED. Parent’s Exhibits B, C, E and F were admitted in evidence. REDACTED declined the opportunity to request a continuance in order to present the testimony of any additional witnesses. Tr. 419-420.

On April 25, Ms. REDACTED appeared on behalf of the District and REDACTED appeared pro se. A REDACTED REDACTED participated in the hearing. REDACTED presented her redirect testimony and was re-cross examined.

Closing statements were scheduled for May 5 in order to provide Ms. REDACTED and Ms. REDACTED to prepare their oral closing statements. The District’s application to present a written closing statement was denied.

The May 5 date was continued at the District’s request with the consent of Ms. REDACTED. Tr. 577. Closing statements were rescheduled for May 11, a date mutually agreed upon by the parties. Ms. REDACTED did not appear on May 11, and closing statements were rescheduled for, and provided on, May 19, a date mutually agreed upon by the parties; and the record was closed on May 25, 2023.

Extensions of the compliance date were requested, and written Orders of Extension were issued on November 28, 2022, and January 11, February 27, March 23, and April 27, 2023. IHO Exs. I, II, VI, VII, VIII. The details of the requests for the extensions and the reasons for granting the extensions are set forth in the Orders.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.

ISSUES

REDACTED, in her DPC, alleges, as stated above, FAPE violations relating to the 2020-2021, 2021-2022 and 2022-2023 school years. The issues to be addressed in this case, based upon the allegations in the DPC and the arguments presented at hearing, are as follows:

• • Is the District correct in arguing that this proceeding is moot?
• • What is the impact of the statute of limitations?
• • In the development of REDACTED’s IEPs, did the CSE adequately consider information from, and recommendations contained in, letters from REDACTED’s doctors and an IEE?
• • Did the June 2021 and June 2022 IEPs offer REDACTED a FAPE?
• • Were the REDACTED and the REDACTED REDACTED appropriate placements for REDACTED and her least restrictive educational environments (“LRE”)?
• • Did the District deny REDACTED a FAPE in her LRE by failing to recommend a residential placement for her?
• • Should the District have performed an AAC evaluation and a functional behavioral assessment of REDACTED; and, should the District perform these evaluations at this time?
• • Did the District deny REDACTED a FAPE by refusing to provide her with home-based ABA therapy and an REDACTED consultant?
• • What compensatory education and services are appropriate for the time periods during which the District was unable, due to the constraints imposed by the COVID pandemic, to provide a 1:1 nurse for REDACTED?
• • Did REDACTED assert, in her DPC drafted by counsel, a claim for additional compensatory education and services due to REDACTED’s alleged failure to benefit from remote instruction, during a time period that is within the statute of limitations, such that she is entitled to compensatory education and services?

FINDINGS OF FACT

• • REDACTED is a REDACTED-year-old girl who is eligible for special education and services pursuant to the IDEA and whose disability, for the purposes of the IDEA, is classified as multiply disabled. Exs. 8, 9, 10, 11, 12.
• • REDACTED is diagnosed with a REDACTED known as REDACTED, which is associated global developmental delays, intellectual disabilities, and REDACTED issues. Tr. 376; Ex. 11 at 6; Ex. 15 at 1-2; Ex. 23 at 2; Ex. 28 at 1; Ex. 31 at 1; Ex. 33; Ex. 37. She experiences recurrent episodes of REDACTED which have required multiple hospitalizations. Tr. 376-377; Exs. D, E, F, 35. Most recently, REDACTED was hospitalized at REDACTED from February 15 through March 13, 2023 and April 3 through April 24, 2023. Tr. 377, 563.
• • REDACTED has also been diagnosed with REDACTED and REDACTED, which is also associated with REDACTED. Tr. 377; Ex. F; Ex. 28 at 4, 15-16; Ex. 33.
• • REDACTED has bilateral amblyopia, and she experiences significant visual impairment both with and without her glasses. Ex. 28 at 1.
• • REDACTED is dependent upon adults for all activities of daily living and is not toilet-trained. She requires adult supervision at all times. Tr. 304; Ex. 8 at 4-5; Ex. 16 at 4; Ex. 22; Ex. 28 at 2-3.
• • REDACTED is non-verbal and non-ambulatory; she uses a REDACTED for mobility and wears REDACTED. Ex. 22 at 2-4; Ex. 25; Ex. 28 at 2-3.
• • REDACTED’s communication, play, sensory processing, and fine and gross motor skills are significantly delayed. Tr. 304; Exs. 13, 14, 15, 16, 22, 28 at 1.
• • While REDACTED likes to play with toys and objects, she needs physical assistance from adults in order to do so appropriately. Tr. 85. She needs adult modeling and prompting to engage in social interactions. Tr. 86.
• • At home, REDACTED interacts with family members by following them around, pulling on their clothing and lifting her arms to be picked up; she also screams and yells and hits and bites family members. Tr. 346, 349-350. She also bites her hand and hits herself. Tr. 350. Family members interpret her yells as cries of pain, especially when she refuses to eat or drink. Tr. 349.
• • REDACTED is cared for at home by family members and by nurses provided by an agency and paid for by a County agency. Tr. 514-515, 518-519.

REDACTED’s Educational and Medical History Overview

• • REDACTED received Early Intervention services and benefited, in particular, from physical therapy and speech therapy. Tr. 353; Ex. 23 at 2. At the time, REDACTED was experiencing daily convulsions. Tr. 354. Since 2019, REDACTED has not experienced convulsions. Tr. 354, 404-405.
• • When REDACTED transitioned to preschool special education services, she started to experience REDACTED problems. Tr. 354; Ex. C.
• • The District recommended, and has continued to recommend in REDACTED’s IEPs, that REDACTED be accompanied by a 1:1 nurse at school and on the bus to and from school. Exs. 8-12. REDACTED’s need to be accompanied by a 1:1 in school and on the bus is not in dispute in this proceeding. Tr. 454-455.
• • During the 2020-2021 school year, REDACTED’s REDACTED symptoms (stomach aches and vomiting) worsened; REDACTED also started to act out by scratching, biting and kicking in school. Tr. 359-360; Ex. E. REDACTED experienced, and continues to experience, “significant pain” as demonstrated by “writhing,” crying, calling for her mother, and by an elevated heart rate. Tr. 378; see also Exs. C, E, F; Ex. 39 (REDACTED will hit herself to communicate that she is in pain).
• • Over time, REDACTED’s medical condition has continued to decline; her periods of illness are longer, her feeding skills have regressed, she is more difficult to manage when she experiences pain episodes, and her respiratory issues have worsened. Tr. 369-371, 515-516; Ex. F. Sometimes, according to REDACTED, REDACTED needs to be reminded to breathe. Tr. 371, 407-409.

The 2018-2019 and 2019-2020 School Years

• • During the 2018-2019 and 2019-2020 school years, REDACTED attended a preschool program at REDACTED (“REDACTED”), a special education preschool. Exs. 18-20. She was accompanied by a 1:1 nurse. Exs. 17, 18.
• • REDACTED is a not-for-profit nonpublic special education school. Tr. 40. It serves students from Early Intervention through 21 years of age who experience developmental delays, including students with intensive medical needs. Tr. 40. Approximately 30 percent of the students in the school-age program have one-to-one nurses with them in school. Tr. 41.
• • REDACTED REDACTED is a New York State licensed bilingual (REDACTED) speech-language pathologist employed by REDACTED. Tr. 122-123. She provided speech-language therapy to REDACTED at REDACTED during the 2018-2019 school year. Tr. 124; Ex. 17.
• • As a preschool student, REDACTED was functioning, in the communication domain, at an age level of approximately 12 months based upon clinical observation. Tr. 127-128, 132; Ex. 17. For example, she consistently made eye contact with the speaker when her name was called, used facial expression and laughter to respond to greetings, used an intentional reach or grab to show that she preferred certain toys (and would throw or discard non-preferred items), appeared to recognize familiar people, and communicated discomfort by crying. Exs. 8 at 3-4, 18-20.
• • Regular school attendance was not an issue for REDACTED during the 2018-2019 school year. Tr. 127; Ex. 17.
• • During 2018-2019 and 2019-2020 school years at REDACTED, REDACTED made gradual progress in occupational and physical therapies and “slow and steady” progress in speech/language goals. Ex. 18 at 2; Ex. 19 at 1-2; Ex. 20 at 1-2
• • With the outbreak of COVID in March 2020, REDACTED provided classes remotely. Tr. 360.
• • During remote learning, students would “log in” with their parents. Tr. 79, 81.
• • REDACTED tried to have REDACTED participate in remote classes in March 2020. Remote classes were “very difficult” for REDACTED because she “doesn’t pay attention to electronics” and she “would be frustrated” and hit, bite, kick and scratch her mother. Tr. 360-361.
• • In spring of 2020, REDACTED informed REDACTED’s teacher that she could not work with REDACTED during remote instruction. Tr. 360-361.
• • REDACTED observed that REDACTED did not benefit from remote instruction. Tr. 361-363.

The April 20, 2020 IEP Meeting

• • The CSE convened on April 20, 2020 to develop an IEP for REDACTED for the 2020-2021 school year; REDACTED participated in this meeting by telephone. Tr 444-445; Ex. 8 at 1.
• • The CSE developed an IEP for REDACTED for her transition from preschool to kindergarten. The CSE recommended that REDACTED attend a 12:1:4 special class accompanied by a 1:1 skilled nurse (both on the school bus and throughout the school day) and receive the related services of speech/language therapy (four 30-minute sessions per week), occupational therapy (three 30-minute sessions per week), and physical therapy (three 30-minute sessions per week). The CSE also recommended individual parent counseling and training (one hour per month at home) for REDACTED Ex. 8 at 1, 9-10.
• • REDACTED’s IEP focused on improving REDACTED’s receptive language skills and developing her play skills, her nonverbal communication skills, and alternative ways to communicate. Ex. 8 at 4-5, 6-9.
• • The IEP includes goals and objectives in the areas of speech and language (using multi-modal means of communication; using an intentional reach; using cause and effect toys; oral motor skills); play skills; gross motor skills (standing; walking); fine motor skills (grasp and manipulation of objects); and improving her cognitive skills by pointing to pictures in a purposeful manner. Ex. 8 at 6-9.

The 2020-2021 School Year

• • In September 2020, REDACTED started the school year with a hybrid program, which was one of the options provided by the Department of Health as per COVID-19 guidance for schools. Tr. 41-42. The hybrid model divided the school’s students into two cohorts, A and B. Over a two-week period, students in cohort A would, for the first week, attend school in person for three days and participate in remote learning for two days. For the second week, cohort A would attend school in person for two days and participate in remote learning for three days. Cohort B would, for the first week, attend school in person for two days and participate in remote learning for three days. For the second week, cohort B would attend school in person for three days and participate in remote learning for two days. Tr. 42, 80.
• • REDACTED REDACTED is a certified special education teacher employed by REDACTED; REDACTED was a student in her class during the 2020-2021 school year. Tr. 79.
• • The class included twelve students with one head teacher (Ms. REDACTED) and four additional adults (not including REDACTED’s 1:1 nurse). Tr. 79-80.
• • The students in the class, including REDACTED, were nonverbal, experienced mobility challenges, and needed assistance throughout the school day for eating, toileting and mobility. Many of the students had specific feeding protocols, and a REDACTED speech therapist pushed into the classroom to assist with feeding. Tr. 81, 86.
• • Ms. REDACTED opined that the April 2020 IEP accurately described REDACTED’s present levels of performance and that the implementation of the goals in the IEP would permit REDACTED to make progress during the 2020-2021 school year. Tr. 84.
• • The hybrid program ceased in April 2021, and parents had the choice of sending their child to school “in person” five days per week or having their child participate in remote learning five day per week. Tr. 41, 43, 80; Ex. 50.
• • In April 2021, REDACTED returned to school in person, five days per week. Tr. 46.
• • When she came to school, REDACTED was accompanied by a 1:1 nurse. Tr. 84-85.
• • REDACTED was able to make her wants and needs known by vocalizing or crying. Tr. 85.
• • REDACTED’s mother informed Ms. REDACTED that REDACTED would cry or act out to express that she was in pain. The 1:1 nurse followed a protocol developed by REDACTED personnel to address REDACTED’s behaviors to communicate pain, including crying and acting out, and then redirect REDACTED back to learning tasks. Tr. 87.
• • The 1:1 nurse and school staff tried to keep Shayla comfortable and would contact REDACTED’s mother when REDACTED indicated that she was in pain. Tr. 85.
• • REDACTED also exhibited aggressive behaviors at school, including hitting, grabbing, scratching or “attempting to bite therapist hands, arms or legs requiring frequent redirection.” Ex. 24 at 1-2.
• • REDACTED testified that during the 2020-2021 school year, REDACTED personnel or the 1:1 nurse called her and instructed her to come to school to pick up REDACTED because REDACTED “was in pain or she was misbehaving.” Tr. 363-365.
• • The District had difficulties securing a 1:1 nurse for REDACTED, which impacted REDACTED’s ability to attend school. Tr. 46; see also Ex. 55 (attendance records for the 2020-2021 school year with notations defined on Tr. 50-53).
• • Ms. REDACTED provided speech-language therapy to REDACTED during the 2020-2021 school year. Tr. 128. She provided REDACTED with four 30-minutes sessions per week of speech-language therapy as per her IEP. Tr. 128; Ex. 21 at 1.
• • REDACTED did not participate in any speech therapy provided virtually because her parents informed REDACTED that they did not want to participate in virtual speech therapy; as a result, Ms. REDACTED’ first speech therapy session with REDACTED during the 2020-2021 school year did not occur until November 17, 2020, and REDACTED had only nine speech therapy sessions through April 2021. Tr. 130; Ex. 21 at 1-2.
• • Once REDACTED started to participate in speech therapy, she made slow, inconsistent progress on her IEP goals. Ms. REDACTED expected that REDACTED’s progress would be slow and inconsistent given her disabilities. Tr. 130-131; Ex. 21.
• • Testing in April 2021 revealed that REDACTED’s receptive language skills were at an approximate age level of three months and expressive language skills were at an approximate age level of six months. Ms. REDACTED opined that these scores did not indicate that REDACTED had regressed since Ms. REDACTED’ estimates at the end of the 2018-2019 school year because those estimates were based upon her observations and the 2021 scores were derived from testing. Tr. 132; Ex. 21 at 2.
• • Ms. REDACTED opined that, during the time that she worked with REDACTED, “there was progress in that small window when she was consistently in school.” Tr. 133.
• • REDACTED did not commence occupational therapy until November 11, 2020. Ex. 26 at 1. Her occupational therapy sessions focused on her goals in the areas of grasp, bilateral coordination, arousal and upper body strength. She made “slow, steady progress” on her IEP goals. Ex. 26 at 2-3, 5-6.
• • Ms. REDACTED conducted an evaluation of REDACTED in May 2021. Tr. 92-93; Ex. 25. Ms. REDACTED utilized the HELP assessment, which indicated that REDACTED demonstrated “scattered” cognitive skills of up to 22 months and “scattered” expressive language skills of up to nine months, “scattered” receptive language skills of up to eight months, gross and fine motor skills of up to six months, social and emotional skills of up to 24 months, and self-help skills of up to 12 months. Ex. 25 at 2-4.
• • REDACTED’s report card for the 2020-2021 school year is dated June 25, 2021 and details REDACTED’s performance on her IEP goals. Ex. 51; see also Tr. 89-91.
• • The report card notes that it was difficult to assess students’ progress during remote learning. Ex. 51 at 1.
• • REDACTED made good progress on many of her speech goals and achieved speech goals relating to intentional reach to make choices and playing appropriately with cause and effect toys. Ex. 51 at 2, 4-7.
• • REDACTED made good progress on her physical therapy goals, including ambulation and standing. Ex. 51 at 2, 8-10.
• • REDACTED made “inconsistent progress” on her occupational therapy goals; while she made progress in reaching to retrieve an item, she still needed hand-over-hand assistance to purposefully release the item. Ex. 51 at 2,10-12.
• • On her social/emotional/behavioral (classroom) goals, REDACTED made gradual progress during the second quarter, when she attended school. Ex. 51 at 2, 8, 13.
• • REDACTED’s progress during the 2020-2021 school year was impeded by her lack of participation in both remote instruction and in-person instruction. Tr. 89-91; see also Ex. 25.

The June 17, 2021 IEP Meeting

• • The CSE convened an IEP meeting for REDACTED on June 17, 2021. Tr. 133; Ex. 9. REDACTED participated in this meeting with her attorney, and REDACTEDs were present. Tr.447; Ex. 9 at 1.
• • REDACTED REDACTED, a certified school psychologist employed by the District, chaired the meeting. The following individuals also participated in the meeting: an attorney for the District; an administrator from REDACTED; Ms. REDACTED; a nurse; a physical therapist; an occupational therapist; Ms. REDACTED; another school psychologist; and a social worker. Tr. 206; Ex. 9 at 1.
• • At the meeting, the participants reviewed the following documents: occupational therapy progress summary, parent reporting observation, physical therapy progress summary, speech and language progress summary, teacher report, educational evaluation, physical therapy evaluation, occupational therapy evaluation, psychological evaluation, speech and language evaluation, a classroom observation, and a social history. Tr. 206-207, 210, 229-231, 447-448; Ex. 9 at 2-3; see Exs, 21, 22, 23, 24, 25, 26.
• • Ms. REDACTED and the REDACTED related services providers presented their evaluations at the meeting and updated the IEP’s present level of performance and goals. Tr. 94-96, 133-134; see also Tr. 453-454.
• • Ms. REDACTED reported that, at the time of the meeting, REDACTED was doing well in school because she was attending class consistently and was accompanied by the 1:1 nurse. Tr. 453.
• • The occupational therapist reported that REDACTED was making slow and steady progress with consistent attendance and with the nurse. Tr. 453-454.
• • The physical therapist also reported that, when REDACTED attended school, the therapist was able to work with REDACTED on her IEP goals. Tr. 454.
• • Ms. REDACTED reported that, when REDACTED attended school, she was able to work with REDACTED on her IEP goals. Tr. 454.
• • At the meeting, Ms. REDACTED discussed her speech evaluation; and there was a discussion about an AAC evaluation, which had been requested by REDACTED’s mother. Ms. REDACTED had not conducted an AAC evaluation of REDACTED because, at the time, REDACTED “was in the very beginning phases of developing” functional communication in that she was using a few signs, a reach gesture, and a single output switch. REDACTED was learning how the switch was related to communicating but was not yet using the switch consistently.^[3] Tr. 135-137.
• • In the context of the discussion of the AAC evaluation, REDACTED personnel and Ms. REDACTED discussed a recommendation by Dr. REDACTED REDACTED, a developmental behavioral pediatrician who treated REDACTED. Dr. REDACTED had, in a letter dated January 29, 2020, recommended an AAC evaluation for REDACTED. Tr. 216-217, 450-451; Ex. 33.^[4]
• • The CSE concluded that REDACTED was not ready for an AAC evaluation because she was not consistently using a single switch device and because she was in the “early stages of grasping.” Tr. 217; see also Tr. 451. Since her grasp was not developed, she would be unable to utilize any device that required her to grasp. Tr. 218.
• • The CSE did recommend that REDACTED start to utilize PECS (a picture exchange system) because using PECS would require REDACTED to engage with the therapist, to engage in an activity, and to comprehend the process of removing pictures and answering questions through pictures; furthermore, as a result, Dr. REDACTED’s recommendation that REDACTED develop skills to be able to use an AAC device would be addressed. Tr. 217-219.
• • The IEP includes goals and objectives in the areas of speech/language (using multi-modal means of communication, playing with toys in “exploratory/relational” ways and in an appropriate and purposeful manner, using a controlled bite and chew); social/emotional/behavioral (motivation to communicate); and motor skills (improved reaching, grasping and release skills, understanding cause and effect by using a large adapted switch to indicate “more,” ambulate 40 feet with assistance, get up from the floor with assistance). Ex. 9 at 7-10.
• • The IEP’s feeding goals were consistent with a May 19, 2021 Clinical REDACTED Evaluation, which was not reviewed by the CSE. Tr. 231-232; Ex 27.
• • The CSE recommended that REDACTED attend a 12:1:4 class at REDACTED accompanied by a 1:1 nurse (both on the school bus and throughout the school day) and receive the related services of speech/language therapy (four 30-minute sessions per week), occupational therapy (three 30-minute sessions per week), and physical therapy (three 30-minute sessions per week). The CSE also recommended individual parent counseling and training (one hour per month at home) for REDACTED Ex. 9 at 1, 11.
• • The CSE also recommended an ESY program for July and August 2021 with reduced related services. Ex. 9 at 12
• • In her January 2020 letter, Dr. REDACTED also recommended that REDACTED receive “at least” 20 hours per week of 1:1 ABA therapy “to help her to attend to tasks, and gain language skills.” Ex 33. This recommendation was not discussed at the June 2021 meeting.^[5] Tr. 272.
• • Dr. REDACTED also recommended that a behavioral therapist assist REDACTED’s mother with a behavior plan to help REDACTED keep her glasses on at home and at school. Ex. 33. This recommendation was discussed at the meeting, and the CSE concluded that REDACTED school personnel would work on such behavior strategies with REDACTED and REDACTED, including in the context parent training and counseling, which the CSE recommended for REDACTED Tr. 221-223.
• • The CSE also discussed whether a functional behavioral assessment (“FBA”) should be conducted for REDACTED to assess certain behaviors that REDACTED demonstrated including the above-referenced removing of her glasses and sometimes becoming aggressive when someone touches her. Tr. 241, 449-450.
• • The CSE determined that an FBA was unnecessary for the following reasons: (a) the behaviors “were not significant” and school personnel were able to redirect REDACTED when she engaged in the above behaviors, (b) school personnel were going to work with REDACTED 1:1 on a reinforcement and shaping program, and (c) “there was no function to her behavior.” Tr. 242-243.
• • At the June 2021 meeting, the CSE discussed medical issues that REDACTED was experiencing in school; these were REDACTED in nature, including vomiting and thrashing in her seat. Tr. 227, 233.
• • Ms. REDACTED testified that the CSE also discussed that REDACTED’s medical needs were addressed at REDACTED and that REDACTED personnel had not asked REDACTED to pick S. up from school. Tr. 240-241. The CSE addressed REDACTED’s medical needs by recommending the continuation of the 1:1 nurse for REDACTED and by requesting a medical plan. Tr. 227, 233, 241.
• • The CSE also discussed REDACTED’s lack of attendance at school. Tr. 232. REDACTED’s mother informed the CSE that REDACTED’s attendance was impacted by REDACTED’s REDACTED difficulties. Tr. 232.
• • At the June 2021 meeting, REDACTED asked the CSE to consider a residential placement for REDACTED. Tr. 239-230. The CSE discussed REDACTED’s request and determined that REDACTED did not need a residential program “for academic purposes” and that a residential placement was not REDACTED’s least restrictive environment. Tr. 239-240; see also Tr. 448-449.
• • Ms. REDACTED testified that the CSE determined that the special education and related services set forth in the June 2021 were appropriate for REDACTED; that REDACTED continued to be an appropriate placement for REDACTED; that REDACTED, if she were to attend school consistently, would make slow and steady progress given her medical and cognitive circumstances; and that the IEP, implemented at REDACTED, represented REDACTED’s least restrictive educational environment. Tr. 93, 248.
• • To address REDACTED’s educational losses due to instruction lost on the days during the 2020-2021 school year on which the District was unable to provide a nurse, the District offered REDACTED compensatory services in the forms of home tutoring (35 hours), occupational therapy (42 sessions), physical therapy (42 sessions), speech therapy (56 sessions), and parent training (12 sessions). Tr. 235-236, 246-247.
• • The number of hours of home tutoring was computed by Ms. REDACTED based upon one hour per day for each day that a nurse was not available for REDACTED and accounting for REDACTED’s ability to tolerate additional instruction based upon her medical circumstances. Tr. 246-247. District personnel and REDACTED’s mother were concerned about the number of hours of compensatory services that REDACTED could tolerate due to her fragile medical condition. Tr. 237.
• • Ms. REDACTED determined that one hour per day of lost instruction was the appropriate amount of compensatory instruction because that is the amount of home instruction offered to elementary-aged students. Tr. 246.
• • For related services sessions, Ms. REDACTED based the number of sessions upon the number of sessions of each service missed due to the absence of the nurse and accounting for REDACTED’s ability to tolerate additional services based upon her medical circumstances. Tr. 247, 315-316.
• • The District requested that REDACTED provide some of the services at REDACTED during summer 2021 and contracted with an agency to provide the rest of the services as of September 2021. Tr. 236-237, 316-317.

The 2021-2022 School Year

• • REDACTED received some compensatory services at REDACTED during summer 2021, but District personnel were unsure of the number of compensatory sessions of either instruction or related services that REDACTED received that summer. Tr. 238.
• • There were also scheduling conflicts between the agency secured by the District to provide compensatory services to REDACTED at home and REDACTED Tr. 237-238.
• • At the time, providers were, due to COVID, unwilling to provide services at a student’s home. As a result, the agency offered to provide compensatory instruction and services to REDACTED remotely. Tr. 238.
• • When the agency attempted to schedule compensatory home instruction hours during the school day (when REDACTED was absent from school) and provide those hours remotely through Telehealth, REDACTED declined to schedule those hours on the grounds that remote instruction was not beneficial for REDACTED. Tr. 238.
• • District personnel were unable to provide the number of compensatory sessions of either instruction or related services that the agency provided to REDACTED during the 2021-2022 school year.
• • Ms. REDACTED continued as REDACTED’s teacher at REDACTED for the 2021-2022 school year. Tr. 97.
• • The District continued to have difficult securing a 1:1 nurse to accompany REDACTED to school. Tr. 98.
• • In the fall of 2021, REDACTED was demonstrating REDACTED, crying or acting out behaviors at school, and the nurse and school staff would implement the protocols to keep her comfortable and redirect her back to task. Tr. 98-99, 252-253. The 1:1 nurse would decide if these measures were sufficient or whether she should contact the school nurse or REDACTED’s mother, which occurred “only a few times” during the school year. Tr. 99-100.
• • Ms. REDACTED and REDACTED’s mother communicated via email and a notebook and at meetings. REDACTED’s mother provided information about how REDACTED was functioning in the morning (how she was eating and “things to look out for”); Ms. REDACTED provided information about REDACTED’s functioning during the school day. Tr. 100-101.
• • REDACTED testified that on or about November 9, 2021, REDACTED returned home from REDACTED with “black-and-blues” on her back and hand. Tr. 366-367.^[6]
• • On November 9, 2021, Ms. REDACTED received a note written in REDACTED’s notebook and dated November 9 stating that REDACTED had bruises on her shoulder and arm. Ex. B. Ms. REDACTED responded to REDACTED, via the notebook, in an entry dated November 9 that the nurse had looked at the bruises, that REDACTED had been “rocking a lot in her chair” during the previous day, and that Ms. REDACTED contacted school administration. Ex. B.
• • Ms. REDACTED reported the information to the assistant principal; the REDACTED nursing office was also notified; and school personnel conducted an investigation. Tr. 103-106; Ex. B.
• • On December 12, 2021, REDACTED took REDACTED to the hospital because REDACTED was in pain; REDACTED testified that hospital personnel told her that REDACTED had been “abused” and to return for a follow up appointment. Tr. 367. REDACTED did not provide testimony about a follow up appointment.
• • At the hearing, REDACTED asserted that the emergency room doctor had told her that the bruises were “in the shape of fingers.” Tr. 475.^[7]

The November 18, 2021 IEP Meeting

• • The CSE reconvened on November 18, 2021 to discuss strategies and interventions to address REDACTED’s REDACTED episodes at school and to discuss REDACTED’s bruises. Tr. 252-253; Ex. 10. REDACTED attended this meeting with an advocate. Ex. 10 at 1.
• • REDACTED personnel informed REDACTED that they had conducted an investigation and did not know the cause of the bruises but thought that the bruises might have been caused by REDACTED thrashing in her chair. Tr. 474, 477, 479-480.
• • Four means of addressing REDACTED’s REDACTED were discussed: (a) a team meeting with REDACTED to rule out medical reasons for REDACTED’s REDACTED and/or discomfort and/or thrashing in her chair in the classroom; (b) the 1:1 nurse taking steps to rule out medical issues when REDACTED demonstrated REDACTED and/or discomfort and/or thrashing in her chair in the classroom, including a “body check” by the 1:1 nurse and the school nurse and placing REDACTED in a “beanbag chair” or on a mat while she was thrashing; (c) the 1:1 nurse administering REDACTED to REDACTED; and (d) the school psychologist developing a plan to be implemented by classroom personnel to decrease the behaviors. Tr. 252-253.
• • At the meeting, REDACTED and her advocate again requested that the District conduct an AAC evaluation; the speech therapist explained at the meeting that REDACTED still did not demonstrate the “prelinguistic skills” necessary to utilize an AAC device. Tr. 253.
• • REDACTED informed the CSE that REDACTED was using two words, made a “baby sign” for more at mealtimes, but did not understand cause and effect to utilize the switch for communication. Tr. 253.
• • At the meeting, the CSE agreed to conduct an FBA and an AAC evaluation for REDACTED. Tr. 254, 480.
• • REDACTED’s mother did not sign and submit the consent forms for the FBA and the AAC evaluation; as a result, the District did not conduct an FBA or an AAC evaluation. Tr. 254-255.

February 28, 2022 IEP Meeting

• • The CSE reconvened on February 28, 2022 to review “doctor’s orders” for REDACTED and REDACTED’s nursing protocols. Tr. 272-273; Ex. 11; see also Ex. 36. REDACTED attended this meeting with an advocate. Ex. 11 at 1.
• • The CSE was provided with a letter dated January 31, 2022, prepared by a nurse practitioner and a medical doctor. Tr. 274; Ex. 36
• • The letter stated that REDACTED was “followed by the Department of Pediatric Neurology at REDACTED Medical Center for a diagnosis of REDACTED” and requested “a 1:1 para to accompany her in school to keep her safe. It does not need to be an RN.” The letter also provided instructions for school staff and the school nurse for when REDACTED had a seizure, including, in certain instances, the administration of medication and calling 911 for transfer to the hospital. Ex. 36.
• • According to Ms. REDACTED, the letter created “confusion” for the CSE because REDACTED’s doctors had previously recommended a registered nurse for REDACTED. Tr. 274.
• • The CSE also reviewed a letter prepared by a nurse and a pediatric REDACTED from REDACTED Medical Center. This letter was also dated January 31, 2022. Tr. 275; Ex. 37.
• • The letter stated that REDACTED was “under [the doctor’s] care for the treatment of REDACTED. Patients with REDACTED have disorders of REDACTED usually with REDACTED and REDACTED when awake” and that REDACTED had experienced episodes requiring the administration of REDACTED. Ex. 37.
• • The letter stated, further, that: “It is medically necessary for REDACTED to be accompanied by 1:1 PARA at school in order to monitor her respiratory status and inform the school nurse to administer REDACTED” and provided instructions with respect to the school nurse’s administration of REDACTED. In addition, the letter stated, a paraprofessional was necessary to “assist REDACTED in classroom activities and hygiene” and to accompany her on the bus. Ex. 37 (emphasis in REDACTEDl).
• • The school nurse at REDACTED contacted the REDACTED, who informed the nurse that the doctors believed that a paraprofessional was “medical” and that REDACTED’s REDACTED needed to be monitored “constantly,” and forwarded an updated letter dated February 15, 2022 recommending both a “1:1 LPN/RN and a paraprofessional for REDACTED. Tr. 276; Ex. 38.
• • Based upon the correspondence and information from the doctors, the CSE continued to recommend a nurse for REDACTED, rather than a paraprofessional. Tr. 276; see also Tr. 539-541, 543.
• • A pediatric medicine hospitalist and a social worker from REDACTED Hospital prepared a letter dated July 21, 2021, which was received by the District on January 11, 2022 and considered at the February 28 meeting. Ex. 57; Tr. 281, 284. The letter states that REDACTED had been admitted to the Hospital on July 12, 2021 with acute REDACTED; the letter also states that:
• • Mother has expressed difficulty with managing REDACTED’s care at home related to her medical and behavioral symptoms. REDACTED Occupation and Physical Therapy Consult evaluations have identified deficits, requiring daily services, and assess that REDACTED has the capacity to improve in her level of function. As a result, of their recommendations, Social Work had attempted the following:
• • 1. To secure skilled nursing for restorative therapy and/or residential placement for patient. Unfortunately, she was declined for skilled nursing due to her behaviors, and skilled nursing facilities [do] not have the appropriate services to care for REDACTED re her behaviors.
• • 2. Home care was also explored however home care services do not have the expertise to address the behavioral component.
• • 3. Attempted to follow up with OPWDD, however [REDACTED] only has provisional eligibility which only affords her limited services, and waivers that mother has applied for remain pending.
• • It is evident that REDACTED requires multiple therapeutic services and behavioral interventions that are not accessible in the community. This in turn, is a severe disservice to REDACTED and poses a severe barrier to her progress and care in the community.
• • We are aware that REDACTED has been recommended for residential placement by her medical providers. We are in agreement with this recommendation to provide REDACTED with optimal care and to afford her the opportunity to progress, given that she is deemed to have capacity to improve with the appropriate therapeutic and behavioral services.
• • Ms. REDACTED explained that the CSE interpreted this letter as a recommendation for a “nursing placement” for REDACTED for “medical reasons.” Tr. 284.
• • The CSE determined that a residential school was not appropriate for REDACTED for educational reasons because REDACTED was an appropriate educational placement for REDACTED and that a residential school would be overly restrictive for REDACTED. Tr. 285.

REDACTED’s Learning During the 2021-2022 School Year

• • During the first quarter of the 2021-2022 school year, REDACTED was working towards her goals and making satisfactory progress on some goals and gradual progress on some other goals; she achieved some of her benchmarks. Ex. 54 passim.
• • During the 2021-2022 school year, the District was unable to provide REDACTED with a 1:1 nurse on a consistent basis. The District worked with nursing agencies to obtain nurses for REDACTED, but, due to COVID, it was difficult to find nursing staff to go into schools and, once a nurse was secured for REDACTED, REDACTED’s attendance “would still be inconsistent so the nurse would leave.” Tr. 234-235; see also Tr. 233-234; Ex. 56 (attendance records for September 2021 through the summer of 2022 with notations defined on Tr. 54; days on which REDACTED was absent due to the absence of a 1:1 nurse are designated with “no PDN”).
• • Due to nursing issues, REDACTED did not attend school until October 7, 2021; she attended school until November 12, 2021; again, due to nursing issues, REDACTED did not return to school until March 16, 2022, and remaining through May 5, 2022, after which she was absent due to illness, then there was no nurse available for the remainder of May and June. Ex. 56 at 1, 3, 5-13, 15, 17-20.
• • Her family “declined” remote services. Ex. 29 at 1; see also Ex. 30.
• • When REDACTED attended school “consistently” during the 2021-2022 school year, “she was on the path to make progress” and demonstrated progress towards her goals. Tr. 98, 102, 109.
• • Ms. REDACTED prepared a progress report in April 2022; this report was utilized in the preparation of the June 3, 2022 IEP. Tr. 108-109, 113; Exs. 12, 32.
• • In her April 2022 report, Ms. REDACTED stated that:
• • Due to student absences, progress towards goals could not be accurately assessed. However, in the time that REDACTED has been in attendance, REDACTED has been displaying great efforts in demonstrating independent exploratory play skills. REDACTED will reach toward a toy presented to her and will explore its functions (buttons, switches, knobs) [and] she maintains eye contact for a short time with a speaker. She will also activate switches to participate in a communication exchange with some assistance.
• • Ex. 32 at 1; see also Tr. 111-112; Ex. 54 at 1.
• • Ms. REDACTED opined that the REDACTED class was appropriate for REDACTED. Tr. 102.
• • REDACTED REDACTED, a speech-language pathologist employed by REDACTED, provided speech-language therapy to REDACTED during the 2021-2022 school year. Tr. 180. She worked with REDACTED on all of her IEP speech-language goals. Tr. 181-182.
• • Ms. REDACTED opined that the IEP goals in the speech-language area were appropriate of REDACTED. Tr. 183.
• • For the September through November marking period, REDACTED met one of her communication benchmarks and was making gradually progress on her goals. Tr. 185-186. REDACTED’s progress was as expected given her disabilities. Tr. 187.
• • REDACTED’s progress on her IEP goals in the speech-language area was “slow because her attendance was poor.” Tr. 183-184; see also Exs. 29, 54.
• • REDACTED had a “Big Mack Switch” available during speech therapy sessions to make requests, but she did not utilize the device consistently and did not always utilize it functionally. Tr. 190-191; see also Ex. 30.

REDACTED REDACTED

• • Immediately after the February 28 IEP meeting, the CSE sent an application packet to REDACTED REDACTED (“REDACTED”) at REDACTED’s request. Tr. 147, 285-286; Ex. 52.
• • REDACTED is a special education school enrolling students who are multiply disabled, intellectually disabled, have medical needs, and/or experience an REDACTED spectrum disorder. Tr. 146-147.
• • REDACTED staff reviewed the materials (including evaluations) forwarded by the District and conducted an observation of REDACTED; REDACTED staff concluded that that the program at REDACTED would meet REDACTED’s needs and be “an appropriate fit” for her. They forwarded an acceptance letter to the District. Tr. 148-150; Ex. 53.

June 3, 2022 IEP Meeting

• • The CSE convened a meeting on June 3, 2022 to consider REDACTED’s acceptance at REDACTED. Tr. 287-288; Ex. 12. REDACTED attended this meeting with an advocate. Tr. 483; Ex. 12 at 1. REDACTED REDACTED, the assistant principal of REDACTED, also attended the meeting. Tr. 151-152.
• • At the time of the meeting, REDACTED had not attended school since May 5, 2022. The IEP notes that REDACTED had “excessive absences due to a nursing shortage at all agencies.” Ex. 12 at 2.
• • REDACTED stated, at the meeting, that she did not feel that REDACTED was an appropriate placement for REDACTED. Ex. 12 at 1.
• • The CSE reviewed REDACTED’s progress reports and discussed that REDACTED’s progress was “limited” due to “a nursing shortage” and REDACTED’s sporadic attendance. Tr. 289-291, 294-295, 484; see also Ex. 12 at 3-4.
• • The CSE also reviewed and discussed an IEE, consisting of a psychological evaluation, conducted by REDACTED REDACTED, Psy.D., on September 30, 2021. Tr. 296; Ex. 28.
• • On testing administered by Dr. REDACTED, REDACTED attained below first percentile scores across all testing domains. Ex. 28 at 5-10.
• • Dr. REDACTED recommended that REDACTED be placed in “a residential placement to address her comprehensive medical, behavioral, and educational interventions. REDACTED requires supervision full-time due to her complex needs.” Ex. 28 at 16.
• • Dr. REDACTED also recommended for REDACTED: a “supportive educational environment that can provide adequate support and structure to address REDACTED’s deficits” and that “specialize[s] in students with REDACTED and related genetic disorders;” an AAC evaluation; a nurse and a “1:1 teaching assistant/aide;” an REDACTED consultant; home-based ABA developed and supervised by a Board Certified Behavior Analyst (“BCBA”) to address REDACTED’s “marked deficits in activities in daily living that need to be addressed in a highly frequent and repetitious manner;” continuation of REDACTED’s IEP-mandated related services of speech, OT, PT and parent training; supports such as minimizing distractions, redirection and refocusing; individual support to maintain attention; clear, simplified and repeated directions; behavioral supports; social skills training; and services sponsored by the Office for Persons with Developmental Disabilities, including home-based support, community-based services, and respite care. Ex. 28 at 16-17.
• • CSE discussed Dr. REDACTED’s recommendation for a residential placement for REDACTED. The CSE did not recommend a residential placement for REDACTED because the CSE determined that such a placement was overly restrictive for her. Tr. 296, 340.
• • The CSE also had available Dr. REDACTED’s May 19, 2021 letter, which was provided to the District in January 2022 (tr. 226-227), Dr. REDACTED reiterated her recommendations in her January 29, 2020 letter and added that REDACTED’s “educational needs are currently not being met in her current special education setting, and she should be considered for a residential placement where she can be given comprehensive medical, behavioral, and educational interventions that will meet her learning needs.” Ex. 34 at 1 (emphasis added).
• • The CSE also considered a letter from Dr. REDACTED REDACTED, a physician with REDACTED. The letter explains that REDACTED had reported to Dr. REDACTED that she was having a hard time managing REDACTED’s care at home and was requesting a residential placement for REDACTED. Ex. 39. REDACTED confirmed that she made such a report to Dr. REDACTED. Tr. 512. Dr. REDACTED incorporated REDACTED’ request in a letter dated May 3, 2022; Dr. REDACTED, in her letter, requested that REDACTED “be considered for residential placement again in the hopes of being able to assist mother with REDACTED’s increasing needs and care.” Ex. 39; see also Tr. 311-312.
• • The CSE also had available a letter from Dr. REDACTED, REDACTED’s pediatrician, who recommended a residential setting for REDACTED in order to address REDACTED’s medical needs. Tr. 385; Ex. 35.^[8]
• • The CSE again determined that REDACTED was still not “ready” for an AAC evaluation and did not recommend an REDACTED consultant or ABA therapy, as recommended by Dr. REDACTED. Tr. 298-299.
• • Ms. REDACTED opined that ABA was not recommended because “there was no function of [REDACTED’s] behaviors and she was not able to benefit from ABA” at the time of the meeting. Tr. 300. Ms. REDACTED explained that “ABA is used to work on behaviors... but there has to be a function of what is causing the behavior. [REDACTED’s] behaviors in school, the thrashing and things, there was no function. She was not doing it for a reason.” Tr. 301. This conclusion was based upon the REDACTED school psychologist, Dr. REDACTED, reporting at the meeting that REDACTED would not benefit from ABA and that REDACTED’s cognitive functioning was severely delayed. Tr. 301-303.
• • Ms. REDACTED explained at the hearing that REDACTED’s low cognitive functioning impacted her benefitting from ABA because ABA therapy would require her “to understand what is going on with the therapist to be able to benefit from ABA services.” Tr. 303. Since REDACTED was unable to interact with the ABA therapist, she would be unable to “internalize” the skills taught through ABA. Tr. 304.
• • The IEP includes goals and objectives, including “purposeful selection” of one out of two tasks and engage in that task; speech and language (using multi-modal methods of communication, playing with toys in a meaningful and functional manner, using a controlled bite and chew); identifying images of herself and her possessions; and motor skills (improving grasp and release skills, increasing understanding of cause and effect by reaching for and activating switch to request “more,” standing, walking with assistance). Ex. 12 at 7-10.
• • Ms. REDACTED opined that the speech-language goals set forth in the June 3, 2022 IEP (Ex. 9) were appropriate for REDACTED for the 2022-2023 school year. Tr. 192-193.
• • Ms. REDACTED also opined that the speech-language therapy mandate of three 30-minute 1:1 sessions per week was appropriate for REDACTED and that she would make progress on the goals provided that she attended school regularly and consistently participated in speech-language therapy. Tr. 194-195.
• • The CSE continued to recommend a 1:1 nurse for REDACTED. Tr. 298.
• • At the June 3, 2022 meeting, Ms. REDACTED stated that she believed that the District would be able to provide nursing services beginning in September 2022. Tr. 488.
• • Ms. REDACTED offered to provide additional tutoring agencies to provide compensatory home instruction to REDACTED and discussed the number of school days missed due to lack of a nurse during the 2021-2022 school year. Tr. 313-318, 456-458, 488-489, 490, 495-496; 556-557.
• • The days of instruction missed, and the related services missed, were calculated at the meeting, with one hour of compensatory instruction for each day of school attendance missed due to lack of a 1:1 nurse and discounted in consideration of REDACTED’s ability to tolerate and benefit from additional instruction (for a total of 35 hours); a similar calculation was applied to missed 30-minute sessions of related services. Tr. 314-318, 490-494.
• • Some of the compensatory hours of instruction and related services were to be delivered at REDACTED during summer 2022.^[9] Tr. 313, 459-460, 496-497. But REDACTED did not attend school during summer 2022, and the services were not delivered to REDACTED during the summer. Tr. 460, 497.
• • The CSE recommended that REDACTED would continue to attend REDACTED for summer 2022 and would start at REDACTED in September 2022. Tr. 288, 313, 485; Ex. 12.
• • The IEP recommended that REDACTED, as of September at REDACTED, attend a 9:1:2 classroom accompanied by a 1:1 nurse for transportation and throughout the school day, and receive the related services of occupational, physical and speech therapies, each for three individual sessions per week. Tr. 314; Ex. 12 at 11.

Initial Due Process Complaint

• • REDACTED filed an initial Due Process Complaint dated July 2, 2022, alleging that the District denied REDACTED a FAPE for the 2019-2020, 2020-2021 and 2022-2023 school years and seeking, as relief, a residential placement, an AAC evaluation, an FBA, home-based ABA services, an REDACTED consultant, and compensatory educational and related services. Ex. 1; Tr. 322.
• • The District and REDACTED entered into an agreement to resolve the initial Due Process Complaint, which, as per the terms of the agreement would be withdrawn without prejudice. Ex. 2; Tr. 323. As per the agreement, the District agreed to send applications packages to New York State-approved residential programs.^[10] Ex. 2 at 1; Tr. 323.
• • In the agreement, the District also agreed to provide REDACTED, for a time period of approximately six weeks while the District was sending applications to residential schools, and awaiting responses from the schools, one hour of in-person home instruction per school day and the following related services, in-person and at home: occupational therapy, two 30-minute sessions per week; physical therapy, two 30-minute sessions per week; and speech and language therapy, three 30-minute sessions per week. Ex. 2 at 2.
• • The initial DPC was withdrawn by REDACTED, through counsel, on August 16, 2022. Ex. 4.
• • The District sent the agreed-upon application packages to ten New York State-approved residential schools; REDACTED was not accepted at any of the schools. Tr. 325-326; 483. The stated reasons for the rejections included: program not appropriate for REDACTED; REDACTED’s “[e]ducational functioning too low” for the program; the program was “[u]nable to provide level of psychiatric, emotional and/or behavior support” REDACTED needed; REDACTED was too young for the program; there were no openings in the programs; the program was a family-based treatment program too far from the family’s home; program concerns “regarding [REDACTED’s] safety and ability to self preserve;” and program unable to address REDACTED’s medical needs. Exs. 40-49.
• • The District was unable to provide the agreed-upon home instruction and related services to REDACTED due to scheduling conflicts with Ms. S and REDACTED’s declination of remote services. Tr. 323. 327-328.

The 2022-2023 School Year

• • REDACTED did not attend REDACTED during summer 2022. Tr. 497.
• • As stated above, for September 2022, REDACTED was placed in a 9:1:2 class at REDACTED for students with multiple disabilities. Some of the students in the class are accompanied by 1:1 nurses. Tr. 150-151.
• • The District had a 1:1 nurse available to accompany REDACTED to REDACTED in September 2022. Tr. 323, 520.
• • REDACTED attended the REDACTED program on September 7, 2022. T. 154, 500. REDACTED attended class accompanied by a 1:1 nurse, and REDACTED stayed at school for the entire school day (from 9:00 AM to 3:00 PM) with no incidents or issues. Tr. 154-155, 164, 500-501.
• • REDACTED’s class included nine students, one teacher and two full-time aides. The class program utilizes a multi-sensory approach to learning, and all learning tasks are “hands-on” and differentiated to meet each student’s individual needs. Tr. 151.
• • REDACTED did not return to REDACTED after September 7, 2022. Tr. 155, 501.
• • REDACTED personnel left messages for REDACTED’s mother inquiring about why REDACTED was absent and when she would return to school. Tr. 155-156, 164, 507.
• • On two occasions, REDACTED’s mother telephoned REDACTED REDACTED, the principal of REDACTED, and informed her that REDACTED’s absences “had to do with legal issues” with the District. REDACTED did not express any concerns about the REDACTED program to Ms. REDACTED.^[11] Tr. 164, 166-167.
• • District personnel also contacted REDACTED to try to find out why REDACTED was not attending REDACTED even though there was a nurse available to accompany REDACTED at school. Tr. 520.
• • The REDACTED placement has remained available for REDACTED for the 2022-2023 school year. Tr. 156, 328-329. REDACTED remains “enrolled” at REDACTED, and, at the time of the hearing, had accumulated 119 days of absence. Tr. 156.
• • REDACTED remains available to provide REDACTED with the remaining hours of compensatory education and related services. Tr. 328.
• • Both Ms. REDACTED and Ms. REDACTED opined that the REDACTED 9:1:2 class with the related services of occupational, physical and speech therapies and a 1:1 nurse was appropriate for REDACTED for the 2022-2023 school year and that REDACTED can meet REDACTED’s needs. Tr. 153, 165.
• • Some of the compensatory services were provided to REDACTED during the 2022-2023 school year. The District continued to have difficulties locating home instruction and related services providers who were willing to provide services in REDACTED’s home. Tr. 317.
• • REDACTED also informed agency personnel that REDACTED could not tolerate instruction and services after 3:00 PM because she was too tired, and would not cooperate with teachers and therapists in the late afternoon. Tr. 407. REDACTED wanted the compensatory instruction and services to occur in the morning when REDACTED is alert and can learn. Tr. 407.
• • Sometimes, as described by REDACTED, home instructors and related services providers were frightened by REDACTED’s pain or REDACTED episodes and refused to return. Tr. 406-407.

Testimony of REDACTED’s Treating Physician

• • Dr. REDACTED REDACTED, a pediatrician, has treated REDACTED, and the last time she saw REDACTED was in March 2023. Tr. 375-376, 386. She practices at REDACTED Medical Center of REDACTED and runs, with a group of medical professionals, a program for children with medical complexities. Tr. 376.
• • Dr. REDACTED recommended a residential setting for REDACTED in order to address REDACTED’s medical needs. Tr. 385; Ex. 35. At the time of writing the letter, Dr. REDACTED understood that REDACTED was having difficulties managing REDACTED’s condition (as would any parent) and that REDACTED was missing school. Tr. 386-387. Dr. REDACTED and REDACTED discussed ways of obtaining more support at home, including increasing services at home; they also discussed a residential placement for REDACTED. Tr. 388. The type of residential placement that Dr. REDACTED discussed was a setting in which medical staff could attend to REDACTED’s medical needs and in which REDACTED “could receive an education.” Tr. 389.
• • Dr. REDACTED recommended that REDACTED attend a residential program in which her episodes of REDACTED pain can be managed through medication and in which there would be fewer “interruptions in her education.” Tr. 379-381, 383-384. She opined that REDACTED would benefit from educational instruction when she was not experiencing episodes of pain. Tr. 392.
• • Dr. REDACTED opined that if REDACTED’s pain episodes can be managed at school by a nurse who could administer appropriate medications, then she can attend school. Tr. 392-394.
• • The medications to which Dr. REDACTED referred could be administered by a nurse to a child outside of the hospital setting upon a doctor’s order and permission from the child’s parents. Tr. 384.

REDACTED’s Concerns

• • REDACTED stated that she believed, based on her discussions with social workers, that a residential school would have nurses to care for REDACTED. Tr. 543-544.
• • REDACTED contends that neither a day program nor home instruction are, at this time, able to address REDACTED’s medical needs because the nurses at school and nurses, teachers and therapists who come to the home will be unable to care for REDACTED and will be fearful of working with REDACTED. Tr. 410-411.
• • REDACTED stated that hospital personnel have sent REDACTED’s records to “many different REDACTED;” none of the clinics accepted REDACTED. Tr. 411-412.
• • REDACTED stated that she had wanted “some” home schooling for REDACTED but REDACTED’s doctors advised her that REDACTED needs to be in school so she can interact with other people. Tr. 544.
• • REDACTED stated that she wanted ABA therapy for REDACTED in order for REDACTED to “learn how to communicate.” Tr. 545.
• • REDACTED is asking for compensatory education for instruction and related services missed on the school days when the District was unable to provide a nurse to accompany REDACTED to school during the 2020-2021 and 2022-2023 school year. She wants the compensatory education to be provided at home until a place at a residential school is secured for REDACTED. Tr. 546; see also 553-554, 556-557.
• • REDACTED acknowledged that the CSE had recommended compensatory education and related services for REDACTED for services missed due to the absence of a nurse during the 2020-2021 and 2021-2022 school years; however, she was seeking “the remaining hours” of home instruction and services that were recommended but, she contended, were not provided by the CSE. Tr. 558-559.
• • REDACTED admitted that REDACTED with a nurse or a trained aide would meet REDACTED’s needs. Tr. 552.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. Hempstead Union Free School Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Is the District correct in arguing that this proceeding is moot?

In its closing argument, the District contended that this proceeding should be dismissed because it is now moot. The District argues that this proceeding is moot because: (a) with respect to the 2020-2021 and 2021-2022 school years, the District admitted its failure to implement its IEPs for REDACTED by failing to secure consistently a 1:1 nurse and remedied this failure by offering REDACTED compensatory education for each school year; (b) REDACTED stated on the record that she was not seeking additional compensatory education and related services but rather was seeking implementation of the compensatory education and related services that the CSE had previously recommended; and (c) REDACTED admitted on the record that the program at REDACTED was appropriate for REDACTED.

In order for a hearing officer to consider, and make determinations with respect to, an impartial hearing request, the dispute between the parties must be “real and live” not “academic, or conjectural.’" Lillbask v. Connecticut Department of Education, 397 F.3d 77, 85 (2d Cir. 2005) (internal citations omitted). When the issues between the parties are no longer “live,” the proceeding becomes moot, and “the court—whether trial, appellate, or Supreme—loses jurisdiction over the suit, which therefore must be dismissed.” Id.; see also Russman v. Bd. of Educ. of the Enlarged City Sch. Dist. of Watervliet, 260 F.3d 114 (2d Cir. 2001). When the relief requested in an impartial hearing request is no longer in issue, the hearing request must be dismissed as moot. See Application of a Student with a Disability, Appeal No. 09-032.

I find that this proceeding is not moot because there are “live” issues in dispute. These issues include, for example, the following questions: Did the District’s CSE adequately consider information from, and recommendations contained in, letters from REDACTED’s doctors and an IEE when determining that a residential placement was overly restrictive for REDACTED? Did the District deny REDACTED a FAPE in her LRE by failing to recommend a residential placement for her? Should the District have performed an AAC evaluation and a functional behavioral assessment of REDACTED; and, should the District perform these evaluations at this time? Did the District deny REDACTED a FAPE by refusing to provide her with home-based ABA therapy and an REDACTED consultant? And, what should be done to address the compensatory education and services that REDACTED contends that REDACTED has not yet received?

As a result, since there are number of “live” issues concerning REDACTED’s education, this proceeding is not moot, and the District’s motion to dismiss is denied.

What is the impact of the statute of limitations?

The IDEA provides for a two-year statute of limitations. 20 U.S.C. §§ 1415(b)(6)(B), 1415(f)(3)(C). A party must request an impartial hearing within two years of when the party “knew or should have known about the alleged action that forms the basis of the complaint.” 20 U.S.C. §1415(f)(3)(C); see Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 114-115 (2d Cir. 2008); see also 8 N.Y.C.R.R. § 200.5(j)(1)(i); Application of a Student with a Disability, Appeal No. 19-026 at 14. There are specific exceptions to the statute of limitations, none of which are pleaded in the instant case. See 20 U.S.C. § 1415(f)(3)(D).

REDACTED, through counsel, filed, and the District received, the DPC in this case on September 30, 2022. Ex. 5 at 1. As a result, claims accruing before September 30, 2020 are barred by the statute of limitations. The statute of limitations thus bars challenges to the April 2020 IEP because REDACTED knew about the IEP meeting (she attended the meeting) and knew what the CSE’s recommendations for REDACTED were in April 2020, which is outside the applicable statute of limitations time period. The claims that may be addressed in this proceeding with respect to the 2020-2021 school year are claims relating to the implementation of the IEP program for the time period of September 30, 2020 through June 30, 2021. These claims include the District’s failure to provide a nurse for REDACTED to attend school and compensatory instruction and related services. This analysis does not apply to claims arising out of the June 17, 2021 CSE meeting because that meeting was conducted within the statute of limitations period.

In the development of REDACTED’s IEPs, did the CSE adequately consider information from, and recommendations contained in, letters from REDACTED’s doctors and an IEE?

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). A claim that a CSE did not adequately consider information relating to a child’s special educational needs is considered an alleged procedural violation of the IDEA. If a procedural violation is alleged, as it is here, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007.

The evidence demonstrates that the District’s CSEs conducted IEP meetings for REDACTED in June 2021, February 2022, and June 2022 to develop special education programming for REDACTED. REDACTED was present at each of these meetings with an attorney or an advocate. See ⁋⁋ 59, 110, 138 above. At each of these meetings, the CSE considered and discussed information and recommendations from REDACTED’s doctors and other medical professionals. See ⁋⁋ 68-70, 76, 111-121, 147-152 above. The IEE, including Dr. REDACTED’s recommendations therein, was considered and discussed at the June 2022 meeting. See ⁋⁋ 142-146 above. The evidence demonstrates that the CSE considered all the above-referenced material, discussed the material (including the doctors’ and other medical professionals’ recommendations and Dr. REDACTED’s recommendations), and made educational judgments about the applicability and significance of the material for the development of recommendations about, and the provision of, special education and services for REDACTED. The CSE disagreed with the doctors,’ other medical professionals’ and some of Dr. REDACTED’s recommendations from an educational standpoint, and the District’s witnesses, in their testimony, explained the reasons for the disagreements.

Given the facts ascertained at the hearing, REDACTED had the opportunity to participate in the IEP meetings and contribute to the process of making decisions about REDACTED’s education. Furthermore, REDACTED was not deprived of educational benefits nor was her right to a FAPE impeded because the CSE considered and discussed, at the CSE meetings, the material (including the doctors,’ other medical professionals’ and Dr. REDACTED’s recommendations) in detail. The CSE did disagree with the doctors,’ other medical professionals’ and some of Dr. REDACTED’s recommendations as applied within the educational context of developing an IEP for REDACTED to address her educational needs. But such disagreement does not demonstrate that the material was ignored or otherwise inadequately considered in the IEP development process. Therefore, the CSE did not deny REDACTED a FAPE in its consideration of the letters from REDACTED’s doctors and the IEE.

Did the June 2021 and June 2022 IEPs offer REDACTED a FAPE?

As stated above, an IEP developed by a school district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 999; see also Rowley, 458 U.S. at 207; T.M. v. Cornwall, 752 F.3d at 151, 160; R.E, 694 F.3d at 189-90. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

The documentary and testamentary evidence in this record demonstrates that the CSE developed IEPs for REDACTED that accurately reflected her functioning levels and learning needs. See ⁋⁋ 61-68, 70-74,79-83, 141-143, 151-156 above. The IEPs include goals and objectives relating to REDACTED’s identified special educational needs. See ⁋⁋ 71-72, 131, 153-155 above. In addition, the District witnesses, including REDACTED’s teacher and related services providers from REDACTED, clearly and credibly explained how the special educational programming and services recommended in the IEPs addressed REDACTED’s needs. See ⁋⁋ 63-66, 70, 73-74, 80, 83, 105, 128-133, 155-156, 161-162 above; Tr. 296-309. As a result, the preponderance of the evidence demonstrates that the IEPs were “reasonably calculated” to address REDACTED’s unique learning needs and circumstances. See Endrew F., 137 S. Ct. at 999 (IEP developed by district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”).

The educators who worked with REDACTED were uniform in their testimony that when REDACTED attends school, she is able to learn very slowly, which is consistent with her unique circumstances and challenges. See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252 (2d Cir. 2012) (importance of evidence from individuals who knew and worked with student); S.B. v. New York City Dep’t of Educ., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (S.D.N.Y. Jun. 25, 2015) (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student).

The Endrew F. standard also requires a hearing officer to examine the child’s progress in the school district’s program and determine if the child is making progress that is meaningful for the child, taking into consideration the child’s unique circumstances, needs, strengths, and challenges, in order to consider whether an IEP program, moving forward, is “reasonably calculated” to promote meaningful progress for the child. See R.E., 694 F.3d at 189-90. Here, as the witnesses credibly explained (and as corroborated by the documentary evidence), REDACTED has missed many, many days of school due to the lack of a nurse during the 2020-2021 and 2021-2022 school years, due to periods of hospitalization and illness, and due to REDACTED’s unwillingness to send her to school during the 2022-2023 school year. See, e.g., ⁋⁋ 84, 95, 123, 124, 139, 141, 158, 169, 174 above; Exs. 55, 56. As the witnesses testified, progress was difficult to assess; but they were consistent in their testimony (and as corroborated by their contemporaneous reports) that when REDACTED attended school on a regular basis, she made very slow progress commensurate with her significant challenges. See ⁋⁋ 54-57, 63-66, 126-128, 132-133, 141 above.

In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. In REDACTED’s case, this means an IEP that addresses her complex and interrelated diagnoses and special educational needs. The District’s witnesses explained how the District’s offered programming and services for REDACTED were “reasonably calculated” to permit her to make progress meaningful for her given her unique circumstances; and, thereby, by a preponderance of the evidence, the record demonstrates that the District’s IEPs offered REDACTED a FAPE.

Were the REDACTED and the REDACTED REDACTED appropriate placements for REDACTED?

As stated above, a school district must implement the student’s IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3). See also B.R. ex rel. K.O. v. New York City Dep’t of Educ., 910 F. Supp. 2d 670, 678-679 (S.D.N.Y. 2012). There is no dispute that both placements were available to implement REDACTED’s IEPs. The roadblocks to implementation were the difficulties in securing 1:1 nursing services for REDACTED during the 2020-2021 and 2021-2022 school years and REDACTED’s unwillingness to send REDACTED to school during the 2022-2023 school year. Both these issues will be addressed below.

Did the District deny REDACTED a FAPE by failing to recommend a residential placement for her, and is a residential placement REDACTED’s least restrictive educational environment?

As stated above, a school district also must ensure that “[t]o the maximum extent appropriate,” a student with a disability is educated in the student’s least restrictive educational environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. Hempstead Union Free School Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013). A residential placement is a highly “restrictive” placement for a student, and a school district may recommend a residential placement for a student only when a student needs a residential placement for educational reasons. See M.S. v. Los Angeles Unified School District, 913 F.3d 1119, 1135-1137 (9th Cir. 2019); Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997) (a residential placement is appropriate when “the child requires the residential program to receive educational benefit”). The record is clear that REDACTED can learn in a day school setting when she attends school with a 1:1 nurse and on a consistent basis, therefore, the IDEA prohibits the District from placing her in a residential school at this time. See also Elmira City Sch. Dist. v. New York State Educ. Dep’t, 204 A.D.3d 1134 (3d Dep’t 2022) (residential placement inappropriate where child received benefit in a day program with a 1:1 nurse).

Both REDACTED and Dr. REDACTED admitted that REDACTED could learn and be educated in a day program accompanied by a 1:1 nurse. See ⁋⁋ 187-188, 196. And, in fact, when REDACTED attends school consistently, she is able to work on her goals. The preponderance of the evidence establishes that REDACTED’s LRE is a day program with related services and a 1:1 nurse. Therefore, a residential program does not constitute her LRE. This determination is made under the IDEA statute. The medical professionals working with REDACTED certainly may continue to seek a medical placement for REDACTED based upon their medical judgments.

Should the District have performed an AAC evaluation and a functional behavioral assessment of REDACTED; and, should the District perform these evaluations at this time?

In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); 8 N.Y.C.R.R. § 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2d Cir. 2006). As stated above, an appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010; see also 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2).

The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. 8 N.Y.C.R.R. § 200.4(b).

The CSE must address the results of an evaluation in a meeting to develop the student’s IEP. The goal of the entire evaluation process (whether an initial evaluation of a student or a subsequent reevaluation) is to enable the CSE to create an appropriate IEP for the student. See, e.g., D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 157 (2d Cir. 2020) (“Trumbull”); L.O. v. New York City Dept. of Educ., 822 F.3d 95, 109-111 (2d Cir. 2016); A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002); Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

An evaluation includes “any procedures, tests or assessments used selectively with an individual student... as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining... the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. § 200.4(b)(1). An evaluation must also include data to determine the student’s “present levels of academic achievement and related developmental needs,” whether the student needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d) (emphasis added). Furthermore, students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

In other words, a school district’s evaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c). At REDACTED’s CSE meetings, the CSE considered and discussed whether an AAC evaluation and an FBA were appropriate for REDACTED. The testimony of the District’s witnesses adequately explained the CSE’s reasoning in not recommending such assessments at the times of the CSE meetings. Then, when the CSE recommended such assessments, REDACTED did not submit the consent forms to the District, and the District could not proceed with conducting the assessments. See ⁋⁋ 67-70, 77-78, 108-109, 150 above.

The information available at the present time indicates that a “comprehensive” evaluation of REDACTED should include an AAC evaluation and an FBA. I am concerned about District personnels’ conclusion that there is “no function to [REDACTED’s] behavior.” See, e.g., ⁋ 78 above. There may very well be a function to REDACTED’s behavior, and that is why an FBA should be conducted at this time. The District argues that, according to Trumbull, an FBA is not an “assessment” subject to an IEE request. I recognize that the District correctly interprets Trumbull; however: (a) Trumbull does not bar an FBA as a component of a child’s “comprehensive” evaluation; and (b) I am exercising my authority as a hearing officer and ordering an FBA because the evidence demonstrates that REDACTED—because she has demonstrated at school over time a number of behaviors that interfere with her learning (see ⁋⁋ 77, 96, 99)—should have an FBA. I am also ordering the AAC evaluation because REDACTED is a nonverbal child, and, despite her significant limitations as described by District personnel, her possible communicative capabilities should be explored through an AAC evaluation at this time.

Did the District deny REDACTED a FAPE by refusing to provide her with home-based ABA therapy and an REDACTED consultant?

While federal courts have recognized ABA as an appropriate and effective teaching methodology for some children with REDACTED, a CSE is required to recommend a specific methodology (such as ABA) to be utilized to instruct a child only when that specific methodology is required in order for the child to learn. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017) (where reports “specifically recommended the continued need for ABA therapy,” IEP is substantively inadequate because it did not recommend any ABA); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”). In the instant case, REDACTED is capable of learning when she consistently attends school. I do recognize that Dr. REDACTED and Dr. REDACTED recommended ABA for REDACTED (see ⁋⁋ 75, 145 above); however, I must apply the relevant legal standards in the Second Circuit. At this time, the evidence does not support a finding that the CSE was required to recommend ABA (or an REDACTED consultant to develop, support and supervise ABA instruction) for REDACTED or a finding that the CSE denied REDACTED a FAPE by determining not to recommend ABA or an REDACTED consultant for her.^[12]

Similarly, since REDACTED can learn when she attends school consistently, the preponderance of the evidence does not support her need for home-based services.^[13]

Are additional compensatory education and services appropriate for time periods during which the District was unable, due to the constraints imposed by the COVID pandemic, to provide a 1:1 nurse for REDACTED?

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each student. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE to that student. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (“[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]”); Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (in determining an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”). An award of compensatory education should aim to place the student in the position he or she would have been in had the district met its IDEA obligations. Newington, 546 F.3d at 123 (compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP”); Reid, 401 F.3d at 518 (compensatory education is a “replacement of educational services the child should have received in the first place” and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA”).

CSEs must make individualized determinations as to whether and to what extent a student with a disability needs compensatory services as a result of instruction and services missed due to the COVID-19 pandemic. New York State Education Department, Guidance: Addressing the Impact of Lost Instructional Time Using COVID-19 Response Funding (November 2020) at p. 7; United Stated Department of Education Office of Special Education and Rehabilitative Services, Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities (March 21, 2020) at p. 2.

Here, the District acknowledged that it was unable to provide consistent nursing services to REDACTED during the 2020-2021 and 2021-2022 school years. The District sought to compensate for this denial of FAPE by offering compensatory instruction and related services to REDACTED. These services were discussed at the June 2021 and June 2022 IEP meetings. The CSE recommended one hour of instruction per day of absence due to no 1:1 nurse and a similar complement of related services so missed, with adjustments (as in discounts) for and accommodations of REDACTED’s fragile medical condition and ability to tolerate instruction in addition to the instruction that she should be receiving in school. The resulting recommendation was for home tutoring (35 hours), occupational therapy (42 30-minute sessions), physical therapy (42 30-minute sessions), speech therapy (56 30-minute sessions), and parent training (12 sessions) as compensation for the 2020-2021 school year; the same recommendation was made as compensation for the 2021-2022 school year. See ⁋⁋ 84, 159.

The CSE appropriately sought to accommodate REDACTED’s fragile medical condition by not overwhelming her with compensatory instruction and services. See Application of a Student with a Disability, Appeal No. 16-033 at p. 17 (compensatory instruction and services should be delivered to a student in a way that “allows [the student] to receive the full benefits,” are “pace[d]” such that the student can make progress, and does “not overwhelm” the student). This concern is corroborated by REDACTED’s insistence that compensatory instruction and services not be provided in the afternoon because REDACTED is tired in the afternoons.

At the hearing, REDACTED was clear that she was not seeking additional hours or sessions of compensatory education or services, but rather was asking for the District to provide the hours of services that were recommended but not yet provided. See ⁋ 195 above.

REDACTED missed many days of school during the 2020-2021 and 2021-2022 school years. In the circumstances of this case, I am not in a position to sua sponte increase the amounts of compensatory services. While I have extensive equitable authority as a hearing officer, I should not impose additional compensatory education or services when, as here, a parent (REDACTED) is not seeking additional compensatory education or services, and is rather seeking only the services that were recommended at CSE meetings which REDACTED attended with counsel or an advocate and that were recommended after careful consideration of REDACTED’s medical circumstances.

However, there is an issue in dispute that I must address: what compensatory instruction and services are still “owed” to REDACTED? The District has the burden of proof on the issue of whether it provided the agreed-upon compensatory instruction and related services to REDACTED. The District was unable to quantify the number of sessions of compensatory instruction that it has provided to REDACTED. See ⁋⁋ 89, 93. Furthermore, the District has not met its burden of proof to demonstrate that any of the compensatory related services sessions were provided to REDACTED.

The District made efforts, as described in the testimony, to arrange for and schedule REDACTED’s compensatory instruction and related services. See ⁋⁋ 89-92, 168, 181-183 above. REDACTED’s medical fragility and REDACTED’s scheduling strictures have made implementation of the compensatory instruction and related services a difficult undertaking. REDACTED has cooperated to date in the delivery of the compensatory instruction and related services offered by the District, and I do not find fault with the District.

However, REDACTED needs these services. Therefore, I am ordering the District to undertake an accounting of the number of hours of compensatory instruction that have been provided to REDACTED and then to provide her with the remainder of the hours of compensatory instruction (specifically, 70 hours minus the hours that have already been provided). As to the related services, I am ordering the District to provide the full complement of recommended compensatory related services (specifically, occupational therapy (84 30-minute sessions), physical therapy (84 30-minute sessions), speech therapy (112 30-minute sessions), and parent training (24 sessions).

The above-discussed compensatory instruction may be delivered at REDACTED (or another day school should REDACTED be placed elsewhere) before or after school. Compensatory instruction shall not be delivered to REDACTED at school during the school day because during the school day at school REDACTED should be accessing the current instruction, services, activities and curricula provided by her teachers and therapists at school. Compensatory instruction may also be delivered at home on dates that school is not in session and shall not be delivered to REDACTED at home on days that school is in session because REDACTED should be in school on those days that school is in session, and compensatory instruction is not a substitute for attending school, and REDACTED should be attending school. I recognize that it will take an extended period of time for REDACTED to exhaust the hours of compensatory instruction. Compensatory instruction may be delivered to REDACTED on weekends, school holidays, or other days that school is closed if providers are available and both the District and REDACTED are amenable.

The above-discussed compensatory related services may be delivered at REDACTED (or another day school should REDACTED be placed elsewhere) before, during or after school. Compensatory related services may be delivered to REDACTED at school during the school day because REDACTED may benefit from the delivery of these services in the school setting to foster her communication and social skills and to learn to utilize fine and gross motor skills in the school setting. Compensatory related services may also be delivered at home on dates that school is not in session. Compensatory related services may be delivered to REDACTED on weekends, school holidays, or other days that school is closed if providers are available and the both District and REDACTED are amenable.

As to any claims for compensatory education for the 2022-2023 school year (see DPC, Ex. 5 at 18-19, 23-24), REDACTED has kept REDACTED out of school from September 8, 2022 through the hearing. There is no entitlement to compensatory services for the 2022-2023 school year because REDACTED did not send REDACTED to school after the first day of school, even though the District had provided a 1:1 nurse for REDACTED. See French v. New York State Dep’t of Educ., 476 F. App’x 468 (2d Cir. 2011) (compensatory education denied where parent “repeatedly demonstrated an unwillingness” to permit the student to attend school pursuant to any IEP in place”).

With respect to the six weeks of compensatory education and services as agreed upon in the Resolution Agreement, I do not have the authority to enforce a Resolution Agreement; without such authority, I am not in a position to issue an order relating to the implementation of these services.

Did REDACTED assert, in her DPC drafted by counsel, a claim for additional compensatory education and services due to REDACTED’s alleged failure to benefit from remote instruction, during a time period that is within the statute of limitations, such that she is entitled to compensatory education and services?

In the DPC, REDACTED alleged that REDACTED was “physically and intellectually unable to access virtual programming offered by REDACTED” during the 2020-2021 school year and sought compensatory services. Ex. 5 at 14, 23-24. As per the statute of limitations and the date of REDACTED’s return to full in-person instruction, the applicable time period for this claim is September 30, 2020 through April 1, 2021 (see ⁋ 37 above). Two factors militate against an award of additional compensatory instruction and services for REDACTED’s lack of benefit from remote instruction. First, REDACTED made clear at the hearing that she was seeking only the compensatory instruction and services recommended by the CSE to compensate for REDACTED’s school absences cause by the lack of a 1:1 nurse. Second, as discussed above, compensatory awards should not “overwhelm” a student such that a student does not benefit from the compensatory instruction and services. See Application of a Student with a Disability, Appeal No. 16-033 at 17. Since the CSE and REDACTED have recognized this difficulty, and REDACTED is seeking only the compensatory instruction and services previously recommended by the CSE, I decline to award additional compensatory instruction and services.

Additional Matters The record demonstrates that the REDACTED program with a 1:1 nurse is a place where REDACTED can learn and benefit from being in school, and therefore REDACTED is strongly encouraged to send REDACTED to the school. Furthermore, moving forward, REDACTED should apprise the District of any of REDACTED’s extended hospitalizations, and the District and REDACTED should work together to consider and determine whether hospital instruction would be appropriate for REDACTED during a period of hospitalization, in light of the expected duration of the hospitalization and REDACTED’s stamina and ability to engage in learning given her medical condition during the hospitalization.

ORDER

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

• • The District’s application to dismiss this proceeding as moot is denied.
• • The statute of limitations period commenced on September 30, 2020, and claims arising before that date are dismissed.
• • The District did not commit a procedural FAPE violation in connection with its consideration, at IEP meetings, of the material presented to the CSE by REDACTED in the forms of letters from REDACTED’s doctors, Dr. REDACTED’s IEE, and REDACTED’s own input at the meetings.
• • The District did not deny REDACTED a FAPE during the 2020-2021, 2021-2022 and 2022-2023 school years by recommending programs and placements for REDACTED at the REDACTED and REDACTED REDACTED.
• • The District did not deny REDACTED a FAPE during the 2020-2021, 2021-2022 and 2022-2023 school years by determining not to recommend a residential placement; after-school ABA therapy, and an REDACTED consultant for REDACTED.
• • Compensatory education: the District:
• • shall undertake an accounting of the number of hours of compensatory instruction that have been provided to REDACTED and provide her with the remainder of the hours of compensatory instruction (specifically, 70 hours minus the hours that have already been provided);
• • shall provide to REDACTED the full complement of recommended compensatory related services (specifically, occupational therapy (84 30-minute sessions), physical therapy (84 30-minute sessions), speech therapy (112 30-minute sessions), and parent training (24 sessions);
• • may deliver compensatory instruction to REDACTED at REDACTED (or another day school should REDACTED be placed elsewhere) before or after school. Compensatory instruction shall not be delivered to REDACTED at school during the school day. Compensatory instruction may also be delivered at home on dates that school is not in session and shall not be delivered to REDACTED at home on days that school is in session; and
• • may deliver compensatory related services to REDACTED at REDACTED (or another day school should REDACTED be placed elsewhere) before, during or after school. Compensatory related services may also be delivered at home on dates that school is not in session.
• • All other claims for compensatory education are denied.

SO ORDERED.

DATED: May 25, 2023

Jean Marie Brescia, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education District 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 District within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD

SCHOOL DISTRICT EXHIBITS

DUE PROCESS COMPLAINT AND RELATED DOCUMENTS

• • 7/1/2022 Initial Due Process Complaint (000001 – 000026) (26 pages)
• • 8/15/2022 Resolution Agreement (000027 – 000032) (6 pages)
• • 8/15/2022 Parent Withdrawal of Due Process Complaint (000033) (1 page)
• • 8/15/2022-8/16/2022 Complaint Withdrawal Correspondence (000034 - 000035) (2 pages)
• • 09/30/22 Refiled Due Process Complaint (000036 - 000059) (24 pages)
• • 10/12/2022 District’s Response to Complaint (000060 – 000094) (35 pages)
• • 10/12/2022 Affidavit of Service (000095) (1 page)

INDIVIDUALIZED EDUCATION PROGRAMS (“IEPs”)

• • 4/20/2020 IEP – Requested Review CPSE to CSE Transition (000141-000152) (11 pages)
• • 6/17/2021 IEP – Amendment (000153 – 000165) (13 pages)
• • 11/18/2021 IEP – Amendment (000166 – 000178) (13 pages)
• • 2/28/2022 IEP – Amendment (000179 – 000191) (13 pages)
• • 6/3/2022 IEP – Annual Review (000192 – 000204) (13 pages)

EVALUATIONS / ASSESSMENTS / REPORTS

• • 5/9/2018 Bilingual Occupational Therapy Evaluation, REDACTED, MS, OTR/L (000466 – 000472) (7 pages)
• • 5/10/2018 Speech and Language Evaluation, REDACTED M.A., C.C.C. (000457 – 000461) (5 pages)
• • 5/11/2018 Bilingual Physical Therapy Evaluation, REDACTED, PT, DPT, MA, PCS (000462 – 000465) (4 pages)
• • 5/11/2018 Bilingual Psychological Evaluation, REDACTED, Ph.D. (000722 – 000726) (5 pages)
• • 2/7/2019 Bilingual Speech/Language Annual Progress Report, REDACTED-REDACTED, M.S.CCC-SL-Bil (000477 – 000479) (3 pages)
• • 2/6/2020 Annual OT Progress Report, REDACTED, COTA/L (000436 – 000439) (4 pages)
• • 2/10/2020 Speech/Language Annual Progress Report, REDACTED REDACTED, M.S. C.F. Bilingual SLP, TSSLD (000411 – 000412) (2 pages)
• • 2/13/2020 Physical Therapy Annual Progress Report, REDACTED, PT, MS (000408 – 000409) (2 pages)
• • 4/14/2021 Speech/Language Re-Evaluation and Progress Report, REDACTED REDACTED, M.S.CCC-SLP (000380 – 000382) (3 pages)
• • 4/26/2021 Psychological Evaluation, REDACTED, M.S., Bilingual School Psychologist (000692 – 000695) (4 pages)
• • 5/7/2021 Social History Re-Evaluation, REDACTED, LMSW (000940 – 000942) (3 pages)
• • 5/10/2021 Physical Therapy Re-Evaluation Report, REDACTED PT, DPT (000281 – 000285, 000389-000391) (8 pages)
• • 5/11/2021 Re-Evaluation Progress Report, REDACTED REDACTED (000943 - 000946) (4 pages)
• • 5/16/2021 Occupational Therapy Re-Evaluation/Annual Progress Report, REDACTED MS, OTR/L (000383 – 000388) (6 pages)
• • 5/19/2021 REDACTED Speech Pathology Clinical REDACTED Evaluation (000398 – 000400). (3 pages)
• • 9/30/2021 Psychological Evaluation, REDACTED REDACTED (000636 – 000653) (18 pages)
• • 3/18/2022 Speech/Language Annual Progress Report, REDACTED REDACTED, M.A., CCC/SLP, TSHH (000368 – 000370) (3 pages)
• • 3/21/2022 Annual Occupational Therapy Progress Report, REDACTED, MOT,
• • OTR/L (000371 – 000373) (3 pages)
• • 3/23/2022 Physical Therapy Annual Progress Report, REDACTED, PTA, REDACTED, DPT (000374 – 000376) (3 pages)
• • 4/5/2022 Annual Progress Report (REDACTED REDACTED) (000365 – 000367) (3 pages)

MEDICAL NOTES

• • 1/29/2020 Doctor Note, REDACTED REDACTED, MD (000917)
• • 5/19/2021 Doctor Note, REDACTED REDACTED, MD (000918-000919)
• • 8/21/2021 Doctor Note, REDACTED REDACTED, MD (000920) (1 page)
• • 1/31/2022 Doctor Note, REDACTED, CPNP & REDACTED, MD (000748) (1 page)
• • 1/31/2022 Doctor Note, REDACTED, MD (000746) (1 page)
• • 2/15/2022 Doctor Note, REDACTED, MD (000751) (1 page)
• • 5/3/2022 Doctor Note, REDACTED REDACTED, MD (000364) (1 page)

RESOLUTION AGREEMENT PLACEMENT APPLICATION RESPONSES

• • 8/16 2022 REDACTED for REDACTED Rejection Letter (000967) (1 page)
• • 8/17/2022 REDACTED Rejection Letter (000972) (1 page)
• • 8/23/2022 REDACTED Rejection Letter (000968) (1 page)
• • 8/25/2022 REDACTED for REDACTED Rejection Letter (000969) (1 page)
• • 8/29/2022 REDACTED Rejection Letter (000973) (1 page)
• • 9/2/2022 REDACTED Rejection Letter (000975) (1 page)
• • 9/13/2022 REDACTED Rejection Letter (000971) (1 page)
• • 9/22/2022 REDACTED Rejection Letter (000976) (1 page)
• • 11/4/2022 REDACTED Rejection Letter (000970) (1 page)
• • 11/10/2022 REDACTED Rejection Letter (000974) (1 page)

OTHER RECORDS

• • 3/22/2021 REDACTED Letter to CSE Chairperson (001053-001054) (2 pages)
• • 6/25/2021 REDACTED Report Card 2020-2021 (001007-001030) (24 pages)
• • 2/28/2022 Request for Placement to REDACTED (000249) (1 page)
• • 3/25/2022 REDACTED Acceptance Letter to REDACTED (000251) (1 page)
• • 6/24/2022 REDACTED Report Card 2021-2022 (000995-001006) (12 pages)
• • 2020-2021 Attendance Card (001007 - 001030) (24 pages)
• • 2021-2022 Attendance Card (001031 – 001052) (22 pages)
• • 7/21/2021 Doctor Note, REDACTED, MD (000939) (1 page)

PARENT EXHIBITS

B 11/9/2021 Handwritten Notes (1 page)

C 10/28/2019 Letter from Dr. REDACTED REDACTED (1 page)

E 8/3/2021 Letter from Dr. REDACTED REDACTED (1 page)

F 7/27/2022 Letter from Dr. REDACTED REDACTED (2 pages)

IHO EXHIBITS

I 11/28/2022 Scheduling and Extension Orders (2 pages)

II 1/11/2023 Scheduling and Extension Orders (2 pages)

III 2/1/2023 Email from Counsel re Discharge (1 page)

IV 2/10/2023 Email to REDACTED re Telephone Conference (2 pages)

V 2/15/2023 Parent’s Request for Adjournment (1 page)

VI 2/27/2023 Scheduling and Extension Orders (2 pages)

VII 3/23/2023 Extension Order (2 pages)

VIII 4/27/2023 Extension Order (2 pages)

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; District exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labeled as “IHO.”

[2] The transcripts of the prehearing conferences are paginated separately from the transcripts of the hearing. References to the transcript of the November 14, 2022 prehearing conference are designated as “PHC I Tr.” with a page number; references to the transcript of the February 24, 2023 prehearing conference are designated as “PHC II Tr.” with a page number; and references to the transcript of the hearing are designated as “Tr.” with a page number.

[3] At the hearing, Ms. REDACTED opined that REDACTED was not yet ready for an AAC evaluation because REDACTED’s “[p]relinguistic skills” needed to “be in place before [REDACTED could] effectively use an AAC device for communication purposes.” Tr. 135-136. Ms. REDACTED explained that “before a person learns to communicate there are some underlying skills that need to be put in place,” including intent and desire to communicate, understanding of cause and effect, consistent attention, and ability to “discern in their environment what it is that they want.” Tr. 136-137.

[4] At the June 2021 meeting, the CSE did not consider Dr. REDACTED’s letter dated May 19, 2021 (Ex. 34) because REDACTED did not provide this letter to the District until January 2022. Tr. 226-227.

[5] Ms. REDACTED had initially testified that Dr. REDACTED’s ABA recommendation was discussed at the June 2021IEP meeting and opined that, at the time of the June 2021 IEP meeting, REDACTED “did not have the cognitive skills to be able to process ABA. Her cognitive skills were around a 6-month-old child” and that ABA requires that the child “be able to comprehend what is being asked of him in ABA. It’s a lot of repetition. It’s a lot of communication skills. [REDACTED] did not have any at that time.” Tr. 220-222.

[6] These transcript pages state that the dates were December 9 and 12. The context of the testimony and the totality of the transcript indicates that these referenced events occurred in November 2021. See, e.g., Tr. 471-479.

[7] Such an incident and such injuries to a child are deeply disturbing and should not occur, and REDACTED should not suffer harm. I do not make findings with respect to the bruising or with respect to REDACTED’s investigation of REDACTED’s injuries, and the incident appears to have been reported to and investigated by Child Protective Services. Tr. 463.

[8] Dr. REDACTED’s letter is dated August 21, 2021. Ex. 35. The CSE did not receive this letter until April 2022.

[9] Ms. REDACTED explained that instead of reducing REDACTED’s ESY related services, the District was recommending the “same complement” of ESY related services as was recommended during the rest of the school year. These additional related services would serve as some component of the compensatory related services. Tr. 313.

[10] The agreement states that the District’s actions in sending applications to residential schools “shall not be used at any time as evidence that the educational program and services recommended by the CSE does not constitute the least restrictive environment” for REDACTED. Ex. 2 at 1. Furthermore, while the document admitted in evidence as District Exhibit 2 is not executed, there is no dispute that both parties executed the agreement. See also Ex. 3 (REDACTED executed “Parent’s Statement”).

[11] REDACTED asserted that she had telephoned a nursing agency, whose personnel informed her that the agency did not have a nurse for REDACTED. Tr. 502-503. I find this testimony unreliable, and I do not credit it, because: (a) REDACTED did not identify the agency, and the District had contacted a number of agencies seeking a nurse for REDACTED; (b) REDACTED did not raise this issue with REDACTED or District personnel in September 2022; (c) and Ms. REDACTED admitted that when a nursing agency personnel contacted her about setting up nursing services for REDACTED, REDACTED asked them to stop contacting her (tr. 503).

[12] In this analysis, I do not credit testimony that REDACTED, due to her cognitive and engagement delays, would be unable to benefit from ABA therapy.

[13] This does not include home-based compensatory instruction and services, for which scheduling may be outside of the regular school day.