Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 246205

Student’s Name: STUDENT

School District: SCHOOL DISTRICT

Impartial Hearing Officer: Michele Host

Date of Filing: February 24, 2023

Hearing Requested by: PARENT

Dates of Hearing: August 10, 2023

August 28, 2023

September 5, 2023

September 7, 2023

September 22, 2023

Record Close Date: October 5, 2023

Time Sensitive: No

Date of Decision: October 6, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 10, 2023:

For the Student:

REDACTED (Parent’s Counsel)

For the District:

REDACTED (DOE Counsel)

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 28, 2023:

For the Student:

Parent’s Counsel

REDACTED (Parent’s Counsel 2)

REDACTED (Parent)

For the District:

DOE Counsel

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 5, 2023:

For the Student:

Parent’s Counsel

REDACTED (Director)

For the District:

DOE Counsel

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 7, 2023:

For the Student:

Parent’s Counsel

Director

For the District:

DOE Counsel

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 22, 2023:

For the Student:

Parent’s Counsel

Parent’s Counsel

For the Parents:

For the District:

DOE Counsel

INTRODUCTION AND PROCEDURAL HISTORY

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parent’s due process complaint, originally filed on or about February 24, 2023. The Parent filed an amended due process complaint on April 7, 2023. In the Parent’s amended due process complaint, the Parent alleged that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 extended school years. In the Parent’s amended due process complaint, the Parent indicated that the Parent would seek the following relief: direct payment of the Student’s 2022-2023 tuition at the private school (“Private School”) where the Student was unilaterally placed for the 2022-2023 school year, in addition to the costs of related services, 1:1 private duty nursing services, and a 1:1 paraprofessional; direct payment of special education transportation; compensatory education to put the Student in the place the Student would have been in if the Student had received an appropriate education during the 2021-2022 school year; an order directing the DOE to convene an IEP meeting for the Student; and an order directing the DOE to fund an independent neuropsychological evaluation. (P-A, pp. 6-7) The Parent also wrote that if the matter proceeded to hearing, the Parent would seek attorneys’ fees. (P-A, p. 7)

I was appointed to this matter on February 27, 2023, and held a pre-hearing conference on March 31, 2023, before the due process complaint was amended. I then held a status conference on May 23, 2023. During that conference, Parent’s Counsel stated that the Parent was not seeking a pendency hearing and wished to schedule a due process hearing. (5/23/2023 Tr., p. 7) DOE Counsel stated that she had submitted a subpoena for documents. I informed her that I had not received it, and I asked her to resubmit it, which she said she would do. I then scheduled the matter for a due process hearing on June 20 and a subpoena hearing on June 5. (5/23/2023 Tr., pp. 10-12)

On May 30, 2023 I emailed the parties and informed them that I still had not received the subpoenas that the DOE referred to during our status conference on May 23. DOE Counsel responded and stated that she would send the subpoenas to me that day. (IHO-II)

As of the date of the scheduled subpoena hearing, June 5, 2023, I still had not received the DOE’s proposed subpoena. (IHO-III) On the date of the subpoena hearing, DOE Counsel emailed Parent’s Counsel and me and sought a “brief adjournment” because she was at the emergency room. (IHO-III) I adjourned the subpoena hearing and directed the DOE to submit her subpoena via email. (Id.) On June 7, 2023, I still had not received the subpoena, and emailed the parties; DOE Counsel responded that she had sent the subpoenas to an incorrect email address. (Id.) The DOE submitted its subpoena on June 8, and Parent’s Counsel submitted objections to the DOE’s subpoena on June 12. I reviewed Parent’s Counsel’s objections and provided the signed subpoena to the parties on June 13. To provide the DOE with time to serve its subpoena and allow for time for compliance with the subpoena, I rescheduled the due process hearing. I originally rescheduled the hearing for June 29, 2023. On the morning of June 29, 2023, DOE Counsel emailed Parent’s Counsel and me stating that she needed an adjournment because of a death in the family. Parent’s Counsel agreed to adjourn the hearing to July 25, 2023, but then sought an adjournment because of a personal matter. Ultimately, I rescheduled the case to be heard on August 10 and 28, 2023. Both parties agreed to the new dates. (IHO-IV)

The impartial hearing began on August 10, 2023. DOE Counsel requested an adjournment due to witness unavailability. (Tr. 5-7) Parent’s Counsel opposed DOE Counsel’s request. (Tr. 7-9) I denied DOE Counsel’s request, noting the repeated delays, the harm further delay would cause to the Student and Parent, and the fact that I emailed DOE Counsel on July 31 and August 9 regarding the due process hearing in this case and the DOE did not respond with any concerns regarding the DOE’s witnesses. (Tr. 11-12)

The DOE had disclosed proposed exhibits I through 10 in advance of the hearing. Parent’s Counsel objected to proposed exhibit 9, and the DOE withdrew that proposed exhibit. (Tr. 15) I admitted the DOE’s exhibits 1-8 and 10 into evidence without further objection.^[1] (Tr.

15) Parent’s Counsel had disclosed proposed exhibits A through I in advance of the hearing. The DOE objected to proposed exhibit C, and I overruled the DOE’s objection and admitted the document into evidence. (Tr. 17-19) Parent’s Counsel withdrew proposed exhibit B as duplicative of DOE exhibit 2.

Both parties made opening statements, and the DOE rested. (Tr. 20-25) The matter then adjourned until August 28, 2023, as previously scheduled.

On August 28, 2023, over email, the DOE asked for an adjournment of the second day of the due process hearing because DOE Counsel had a medical emergency. (Tr. 34) I directed the DOE to have someone appear for the continued hearing, and DOE Counsel 2 appeared on behalf of the DOE. Once the hearing began, DOE Counsel 2 reiterated the DOE’s request for an adjournment. For the reasons set forth in the record, including the fact that the Parent had appeared for cross-examination on August 28, 2023 and has difficulties making herself available due to the Student’s complex medical needs, I denied the DOE’s request for an adjournment. See 34 C.F.R. § 300.515(d); (Tr. 38-39) I did, however, pause the proceedings to allow DOE Counsel 2 time to review the Parent’s affidavit, and I agreed to adjourn the matter immediately after the Parent’s cross-examination so that DOE Counsel could appear for the Director’s cross-examination and closing arguments. (Tr. 39-40) DOE Counsel 2 stated that this was “an appropriate way of sort of balancing the two competing interests in this case.” (Tr. 40) Accordingly, after a brief recess, DOE Counsel 2 conducted cross-examination of the Parent, Parent’s Counsel asked some questions on redirect, and I asked several clarifying questions. (Tr. 80-88) DOE Counsel 2 then asked several questions on re-cross. (Tr. 89) I then adjourned the matter to September 5. (Tr. 97)

On August 29, 2023, Parent’s Counsel submitted two additional proposed exhibits over email, and DOE Counsel 2 objected over email. (IHO-V) On September 5, 2023, both parties appeared for the continued due process hearing and made arguments on the record regarding the additional exhibits. (Tr. 106-107) Ultimately, I entered Parent’s exhibit J and K into the record to ensure a complete hearing record. See Application of a Child with a Disability, Appeal No. 22-105 (Oct. 3, 2022) (“[C]ourts have not enforced absolute adherence to the five-day rule for disclosure but have upheld the discretion of administrative hearing officers who consider factors such as the conditions resulting in the untimely disclosure, the need for a minimally adequate record upon which to base a decision, the effect upon the parties’ right to due process, and the effect upon the timely, efficient and fair conduct of the hearing.”). To mitigate any prejudice to the DOE, I paused the proceeding to allow the DOE to review Parent’s J and K before crossexamining the Director, and I told the parties that we would need to re-call the Parent so that the DOE could cross-examine the Parent regarding Parent’s J and K. While the parties were off the record, Parent’s Counsel also communicated with the Parent and re-confirmed that the Parent consented to Parent’s Counsel proceeding in her absence. (Tr. 116-117) DOE Counsel then began her cross-examination of the Director. DOE Counsel did not complete her cross-examination that day, so I adjourned the hearing to September 7, 2023.

On September 7, 2023, DOE Counsel continued her cross-examination of the Director, followed by redirect from Parent’s Counsel. I asked several clarifying questions, and counsel asked questions based on my questions. I then noted that we needed to schedule a final date for the Parent to be crossed regarding Parent’s exhibits J and K, and the parties scheduled the final date of hearing for September 22. (Tr. 230-232) I granted the parties an extension of the timeline based on the factors contained in 8 N.Y.C.R.R. § 200.5(j)(5). The parties and I also discussed closing statements, and we agreed that the parties would submit 15-page closing statements on or before October 4, 2023. (Tr. 232)

On September 22, 2023, the DOE cross-examined the Parent regarding Parent’s exhibits J and K, and Parent’s Counsel conducted redirect. I asked several clarifying questions, and the Parent rested. (Tr. 250)

On October 4, 2023, Parent’s Counsel submitted the Parent’s closing brief. DOE Counsel emailed Parent’s Counsel and me at 12:09 a.m. on October 5, 2023, asking for confirmation that I had received her brief. I had not, and I informed her so via email later on the morning of October 5, 2023. DOE Counsel submitted the DOE’s brief at 9:06 a.m. on October 5, 2023, and I closed the record. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

After considering all the evidence, as well as the closing briefs of both parties, my findings of fact are as follows:

The Student is currently REDACTED years old and is classified by the DOE as a Student with Multiple Disabilities. (D-2, p. 1; P-H, ¶ 2) The Student has a complex medical profile with diagnoses including but not limited to REDACTED. (D-2, p. 7) The Student is non-verbal and uses a wheelchair. The Student has limited ability to control the Student’s arm and leg movements, and also has limited ability to maintain antigravity head and trunk postures. (Id.) The Student is nonverbal and requires assistance from an adult for all activities of daily living, including toileting, dressing, and feeding (using a tube). (D-2, pp. 4, 7) On December 21, 2021, the DOE convened a Committee on Special Education (“CSE”) and held an IEP meeting for the Student’s 2021-2022 school year. (D-2; P-H, ¶ 4) At the time of the IEP meeting, the Student attended a District 75 public school. (P-H, ¶ 8) The IEP referred to an assessment conducted of the Student using the Student Annual Needs Determination Inventory in October 2020, which found that the Student’s reading, writing, math, and communication skills were “at the target skills of a pre-kindergarten level.” (D-2, p. 2) The IEP contained an entry from the Student’s speech-language therapy (“SLT”) provider that stated the provider had not yet had time to properly assess and get to know the Student. (D-2, p. 4)

The IEP recommended that the Student be placed in a 12:1+(3:1) special class in a DOE specialized school on a 12-month basis. (D-2, pp. 25-26) The IEP recommended occupational therapy (“OT”) twice a week for 30 minutes; physical therapy (“PT”) twice a week for 30 minutes; SLT twice a week for 30 minutes; and vision education services twice a week for 30 minutes, all on an individual basis. The IEP also recommended parent counseling and training (“PCAT”) four times per year for 40 minutes. (D-2, p. 25) The IEP notes that the Student needed special transportation accommodations/services, including a 1:1 paraprofessional, 1:1 nursing services, and a lift bus with air conditioning. (D-2, p. 30) Oddly, although the IEP states in its recommendations section that the Student should receive SLT twice a week for 30 minutes, in the IEP’s section labeled “Other Options Considered,” the IEP states: [The Student’s] speech mandate was changed from 2x30:3 back to 3x30:3 as it was reduced during remote learning. Parent agreed to the change in mandate. Psychologist discussed the fact that while [the Student] is mandated for PT services a provider was not available because [the Student] was dropped from the original provider’s caseload due to absenteeism at the beginning of the school year and when [the Student] returned to in person learning all the provider’s caseloads were full. Also, although the IEP does not clearly mandate a 1:1 nurse during the school day, in the section on “Other Options Considered,” the IEP states that “this meeting was held to add the nurse which was finally approved by OHS after months of waiting.” (D-2, p. 33) The Parent testified that she disagreed with the December 2021 IEP because she believed the Student “needed more therapy, like three times a week instead of the two times a week.” (Tr. 73)

The Parent testified that the Student was not provided with an IEP for the 2022-2023 school year. (P-H, ¶ 10) The Parent also testified that she did not receive a prior written notice or school location letter for the Student’s 2022-2023 school year. (P-H, ¶ 10)

On September 2, 2022, the law firm representing the Parent sent a ten-day notice letter to the DOE. (P-D) The ten-day notice letter states that the Parent intends to place the Student at the Private School because of the DOE’s failure to offer the Student a FAPE for the 2022-2023 school year. Also, the ten-day notice letter states that as of September 2, 2022, the Parent had not received a school location letter for the Student, and the Parent was dissatisfied with the public school the Student had attended for the past four years because the Parent requested longer and more frequent related services sessions for the Student, and when the Parent voiced her concerns, she was told the school could not offer more than 30 minute sessions. (P-D, p. 2)

The Student enrolled in the Private School on September 19, 2022. The Director testified about the Private School, generally, as well as the Student’s educational program there. (P-I) The Director has a master’s degree in teaching and is New York State-licensed for Students with Disabilities grades 1-6 as well as Childhood Education. (P-I, ¶ 3) The Director has been employed in the Director’s current position since June 2018, and in her position, she is responsible for overseeing the educational components of the Private School’s program and the supervision and training of teachers. (P-I, ¶ 1) The Director also participates in the intake of new students. (Id.)

The Director testified that the Private School is a: [P]rivate, not-for-profit, and highly specialized special education program in New York City created for children who suffer from brain injuries or brain-based disorders. [The Private School] operates on an extended 12-month school year calendar and offers all services during its extended school day, which runs from 8:30 a.m. to 5:00 p.m. [The Private School] is an interdisciplinary program with students, many of whom are non-verbal and non-ambulatory. Every student at [the Private School] requires a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit form the educational program. Many students require a 1:1 nurse to attend to the student’s medical needs. (P-I, ¶ 5)

The Director testified that most of the Private School’s students have traumatic brain injuries. At the time of the Director’s testimony, the Private School had seven 6:1:1 classes and three 8:1:1 classes operating on two campuses, one in Manhattan and one in Brooklyn.

The Director testified in her affidavit that the Student attended a 6:1:1 class during the 2022-2023 school year, where the Student received 1:1 instruction on a daily basis. During cross-examination of the Parent and the Director, however, it was revealed that the Student’s classroom did not have a full-time lead teacher for between four and eight months of the 2022-2023 school year. (Tr. 62-63; 213-215; 223-224) The Director testified that during that time period, the Student’s assistant teacher largely assumed the role of lead teacher, although the Private School “had other teachers who were coming in . . . to provide support with one-to-one academics, as well as assisting with, you know, we had people who were assisting with, making sure, you know, reports were complete.” (Tr. 214)

The Private School provides its students with the Private School’s version of an IEP, and the Student’s Private School IEP dated June 4, 2023 is in the record as Parent’s exhibit C. The Private School IEP has a projected service date of June 12, 2023, but when read in conjunction with the Director’s testimony, it is clear that the Student was receiving rigorous related services during the 2022-2023 school year. (P-C; I) The Student received OT, PT, SLT, and vision education (“VE”). The Student was supported by a 1:1 paraprofessional and a 1:1 nurse. (P-C, pp. 61-62) The Student also received weekly 60-minute sessions of assistive technology training (“AT”) from a certified AT provider. (Tr. 194)

The Private School IEP contains an introduction and background section that discusses the Student’s diagnosis and preferences. (P-C, p. 1) The Private School IEP notes that the Student “is non-verbal; however, [the Student] was able to use visual eye gaze and facial expression to show interest and awareness.” (Id.)

The Private School IEP then presents information regarding the Student’s present level of performance. The section on academic performance contains teacher observations regarding the Student’s ability to request preferred items, identify colors, respond to the Student’s name, attend to activities, and respond to questions about activities and texts. (Id. at p. 2) The section discussing the Student’s SLT is extremely detailed, and contains information about the Student’s communication history, the Student’s behavior in SLT sessions, and the Student’s performance on various SLT assessments. (Id. at pp. 3-4) The IEP states that the Student “is making slow, steady progress towards [the Student’s] speech and language-based goals.” (Id. at p. 4) The Private School IEP discusses the Student’s expressive language, receptive language, and oral motor goals, noting that the Student’s performance and support is generally varied “based upon levels of arousal and interest/motivation when the session begins/ends.” (Id. p. 4) The Student received SLT five times a week, four times per week for 60-minute individual sessions, and once a week in a group. (Id. at pp. 3, 62) The Private School IEP also contains a section describing the Student’s physical abilities and limitations. The Student is not able to get dressed without assistance, and the Student requires “total assistance” for managing fasteners and diapering. (Id. at p. 10) The Student is unable to maintain a grasp for more than 10 seconds and does not demonstrate independent finger movements. (P-C, p. 11) The Student “requires a 1:1 paraprofessional throughout the school day for navigation of [the Student’s] environment, completion of ADLs, assistance with attention and sensory input as needed, motor control, access to and use of assistive technology/equipment, managing orthotics, transfers, positioning, and overall safety.” (Id. at p. 12) The Private School IEP refers to the Student’s October 2022 PT assessment, which was performed when the Student began attending the Private School, and also contains a description of the Student’s 60-minute PT sessions, which occurred five times per week. (Id. at pp. 17, 61) The Student received OT five times per week for 60 minutes via a push-in and pull-out model. (P-C, p. 61) The Private School IEP describes the Student’s OT sessions in detail, noting that the Student needs 60-minute sessions to “allot for time to receive direct instruction, preparatory activities, 2-person transfers, positional changes, environmental set-up, repetition of tasks for skill development, increased processing time, redirection to activities, transferring to and from different therapeutic spaces, and rest breaks due to decreased muscle endurance.” (Id. at p. 29)

The Private School IEP also contains information regarding the AT and VE that the Student receives at the Private School. The Student received AT once a week for 60 minutes, and VE twice a week on an individual basis for 60 minute sessions. (P-C, p. 62) Although the Parent’s Enrollment Contract with the Private School states that the Student would receive individual music therapy twice a week for 60 minutes and group music therapy once a week for 60 minutes, the Private School IEP contains no narrative regarding the Student’s music therapy sessions, no music therapy goals, and no recommendation regarding the amount of the Student’s supposed music therapy. (P-C) In addition, no music therapist is listed with the Student’s other related service providers. (P-C, p. 63)

The Parent’s Enrollment Contract with the Private School separates the amount owed by the Parent into two amounts: a base tuition fee of $137,774.65 for the 2022-2023 school year, and a supplemental tuition fee of $81,020.80 covering the Student’s “supplementary services,” namely, OT, PT, SLT, VE, AT, music therapy, and PCAT for the Parent. (P-F, pp. 1-2) The Parent entered into a separate agreement for the Student’s transportation services with a private transportation provider (“Transportation Provider”). (P-G) The agreement specifically references the Private School as the Student’s drop-off location in the morning and pick-up location in the afternoon, and states that the vehicle will have air conditioning and regular-size wheelchair accessibility. (P-G, p. 2) Under the agreement, each morning and afternoon trip was billed as a flat rate of $345.00, and the fees were based on school days whether or not the Student used the Transportation Provider’s services, unless the Transportation Provider was at fault. (P-G)

The Parent entered into an additional separate agreement with a private nursing service provider (“Nursing Service Provider”) for a 1:1 private transportation nurse for the Student, as well as a 1:1 private duty nurse to accompany the Student during school hours. (P-J) The agreement states that all services would be billed on a monthly basis at a flat rate of $113.00 per hour. (P-J, p. 2)

The Parent testified that she cannot afford to pay the cost of the Student’s tuition at the Private School. (P-H, ¶ 17)

CONCLUSIONS OF LAW AND ANALYSIS

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

In general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119. However, “a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” N.Y. Educ. § 4404(1)(c).

Under the three-prong test established by the Supreme Court in Sch. Comm. of Burlington, Mass, v. Dep’t of Educ. of Mass, 471 U.S. 359 (1985) and Florence County. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), parents who unilaterally place their children in private school are entitled to reimbursement from the school district if the services offered by the school district were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim. See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert. denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 U.S. LEXIS 11520 (Oct. 15, 2007). The first prong of the Burlington-Carter test requires an examination of whether the student’s IEP provided a FAPE. Brock v. Dutton, 2015 U.S. Dist. LEXIS 44254, *14 (S.D.N.Y. March 31, 2015).

The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d at 364-65). The private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d at 364.

The final prong of the Burlington-Carter test involves the balancing of the equities. 20 U.S.C. § 1412(a)(10)(C)(iii). Reimbursement may be limited or denied if the parent failed to act reasonably, did not cooperate with the DOE’s attempts to evaluate the student, or failed to provide proper notice of the parent’s rejection of the Student’s placement. See 20 U.S.C. § 1412(a)(10)(C)(iii). When considering whether the parent has shown that the equities weigh in the parent’s favor, it is important to consider “whether the [parent] cooperated with the district in its efforts to meet its obligations under the IDEA.” C.L v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

Burlington-Carter Test Prong One

As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this matter, although the DOE entered nine documents into evidence, the DOE did not support its case with any witness testimony explaining its decisions regarding either the 2021-2022 or the 2022-2023 school years.

Regarding the 2021-2022 school year, absent witness testimony to put it in context, the December 21, 2021 IEP failed to demonstrate that the Student was offered a FAPE. Given the extent of this Student’s educational needs, the IEP’s related services recommendations are extremely light—and the “Other Options Considered” section makes clear that the DOE was not providing the Student with any PT at all. (D-2, p. 33)

Regarding the 2022-2023 school year, it is uncontested that the DOE failed to have an IEP in effect for the Student by the beginning of the 2022-2023 school year in accordance with 34 C.F.R. § 300.323. The DOE also never provided the Parent with a school location letter for the 2022-2023 school year. School districts must ensure that an IEP is in effect by the start of the school year. Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010) (citing 34 C.F.R. § 300.323(a) (“At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP....”). Failure to provide the parents with an IEP before the start of the school year is a procedural violation of the IDEA. C.U. v. N.Y.C. Dep’t of Educ., 23 F.Supp.3d 210, 225 (S.D.N.Y. 2014). Moreover, to carry its burden under Prong One, the DOE must prove that it timely offered the Student a placement. Failure to do so constitutes a procedural violation that significantly impedes the parent’s ability to participate in the decision-making process regarding the provision of a FAPE. V.A. v. City of N.Y., 2022 U.S. Dist. LEXIS 84556, *28 (E.D.N.Y. May 10, 2022).

For the reasons set forth above, I cannot find that the DOE offered the Student a FAPE for either the 2021-2022 or the 2022-2023 school year.

Burlington-Carter Test Prong Two: The Appropriateness of the Parent’s Unilateral Placement

A unilateral private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The relevant standard to apply is whether “the unilateral private placement . . . provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (quotations omitted). No single factor is dispositive in this analysis. Id. The private placement does not necessarily need to provide certified special education teachers or every special service that could assist in maximizing the Student’s potential. Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 2020 U.S. Dist. LEXIS 16007 (S.D.N.Y. 2020), aff’d 2020 U.S. App. LEXIS 39739 (2d Cir. 2020) (citation omitted). Moreover, parental placements are not subject to the same mainstreaming requirements as a school district placement. Frank G. v. Bd. of Educ., 459 F. 3d at 364.

In this case, the Parent submitted an IEP prepared by the Private School dated June 4, 2023, in addition to the testimonial affidavits of the Director and the Parent. In multiple places, the Private School IEP contains statements showing that the Student’s 2022-2023 educational program at the Private School was strategically designed to meet the Student’s unique educational needs and produced meaningful academic benefit. In SLT, the Student was described as making “slow, steady progress towards [the Student’s] speech and language-based goals.” (P-C, p. 4) The Student was working towards developing the ability to name items, use specific words or gestures to direct or request action, and talk about feelings. (P-C, p. 6) In PT, the Student was making slow and steady progress towards an annual goal of crawling forward 5 feet, with head extended and with support at the Student’s pelvis and shoulders. (P-C, p. 15)

In AT, the Student was using a trial device that worked well for the Student. The device increased the Student’s overall access to vocabulary and increased participation in more advanced academic tasks. (P-C, p. 20)

The IEP states that in the Student’s OT, the Student began “to demonstrate progress across all areas of functional performance” and demonstrated “great” progress in the Student’s ability to extend the Student’s arms through the Student’s sleeves with decreased cues. The IEP further states that “in the area of academics, [the Student] has significantly improved in [the Student’s] sustained attention.” (P-C, p. 28)

The Director and the Parent both testified regarding the Student’s program and progress at the Private School. The Director emphasized that the Student received OT, PT, and SL “on a daily basis and in 60-minute sessions to allow for repetition, rest, transitioning, and reinforcement of skills. (P-I, ¶ 11) The Director testified that the Student “made progress in skills across all academic and related service domains in [the Student’s] educational program at [the Private School].” (P-I, ¶ 13)

The Parent also testified that at the Private School, the Student “receives more time for related services, as well as additional activities like walks.” (P-H, ¶ 12) The Parent testified that she “noticed a lot of improvement with [the Student’s] communication, movement and mood at home since [the Student] started attending school at [the Private School].” (P-H, ¶ 16)

Both the Director and the Parent testified credibly. Although the Director did not disclose that the Student’s classroom was lacking a lead teacher for several months of the 2022-2023 school year in her affidavit, she was truthful when asked about it on cross-examination.

The DOE argues that the absence of a lead teacher from the Student’s classroom for much of the 2022-2023 school year renders the Student’s placement at the Private School inappropriate. (District Closing Brief at pp. 5-7) I am extremely concerned about this issue, especially in light of the Student’s complex educational and medical needs. Both the Director and the Parent testified in detail about the extraordinary support provided by the classroom’s assistant teacher, however. The Director testified that the assistant teacher was “like Superman” and “learned techniques from . . . several teachers that he’s worked with. And . . . goes to the teachers’ meetings, the training. So he did really a phenomenal job.” (Tr. 220-221) The Parent testified that the assistant teacher “was on point with everything, making sure all his students were fine, making sure that all the programs they were supposed to do were fine. He was on top of everything. He was great with the kids.” (Tr. 65) The Parent testified that the Student did not miss any of the Student’s related services. (Tr. 82) The Parent also testified that under the supervision of the assistant teacher, the Student made progress in terms of the Student’s focus and attention span. (Tr. 83) Moreover, during the period when the Student’s classroom did not have a lead teacher, the Student was always supported by the Student’s 1:1 paraprofessional and private nurse, and the other students in the classroom also had individual paraprofessionals. (Tr. 66)

The DOE also argued that the Parent did not provide evidence regarding the qualifications of the Student’s teachers and related services providers. (DOE Closing Brief at p.

6) This assertion is simply incorrect; the Director testified on cross regarding the educational qualifications of the Student’s new lead teacher, as well about as the qualification of the assistant teacher who filled in when the Student’s classroom had no lead teacher. (Tr. 148-49) The Student’s related service providers are named in the Private School IEP, and their certifications are listed (i.e., after the SLT Provider’s name, the Private School IEP lists her certifications as “MS, CCC-SLP, ATP”).

DOE Counsel also argues that the Private School “provides limited academic instruction” and that “this Student, and all other students at [the Private School] only receive 30 minutes per day of academic instruction.” (DOE Closing Brief at p. 6) DOE Counsel cites nothing in the record in support of these assertions, and the Private School IEP emphasizes that due to the Student’s disability, the Student’s curriculum requires “a high-level degree of individualization.” (P-C, p. 34) Moreover, the record makes clear that the Student’s related services incorporated academic instruction. For example, the portion of the Private School IEP addressing the Student’s occupational therapy states that the Student should receive “skilled occupational therapy services, individually 5x per week for 60 minutes via a push-in and pull-out model to address areas of academics, play/leisure/ and self-care skills.” (P-C, p. 27) The reference to “academics” highlights that the Student’s related services incorporated academic instruction.

I find that the Parent has met her burden to prove that the private program offers an educational program that met the Student’s needs under Prong Two of the Burlington/Carter standard. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). “[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). In this matter, although the Student did not have a lead teacher in the classroom for much of the 2022-2023 school year, the Student received 60-minute sessions of OT, PT, and SLT on a daily basis, in addition to VE and AT. The record shows that the Student made meaningful progress, and the Student was supported by both a 1:1 paraprofessional and a private nurse. Given the Student’s unique needs, the weight of the evidence establishes that the Student’s individual special education needs were addressed by the Private School.

Burlington-Carter Test Prong Three: Equitable Factors

Equitable factors are relevant to fashioning relief under the IDEA. Burlington, 471 U.S. at 374; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir., 2014); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000) (citations omitted); see also Carter, 510 U.S. at 16 (“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”). Reimbursement of private school tuition may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); see S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 U.S. Dist. LEXIS 11354 (S.D.N.Y. Feb. 4, 2008); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 C.F.R. § 300.148(d)(1). This statutory requirement “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).

In this case, the record does not establish that the Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that the Parent interfered in any manner with the CSE’s evaluation of the Student or prevented it from providing the Student with a FAPE for either of the school years at issue in this case. Furthermore, the DOE has raised no argument that the equities would not weigh in favor of the Parent. The record supports a finding that the Parent cooperated fully with the DOE and timely sent the requisite ten-day notice to the DOE in advance of the commencement of the 2022-2023 school year. (P-D)

In addition, the record clearly establishes that the Parent incurred an obligation to pay the Attending School $137.774.65 for the Student’s 2022-2023 base tuition. Because it appears from the Private School IEP that the Student did not, in fact, receive music therapy, I will not award the full amount of supplementary tuition described in the Enrollment Contract. I have calculated the cost of the Student’s music therapy mandate described in the contract (individual music therapy x 60 minutes x 2 times per week at $112 per hour, group music therapy x 60 minutes x 1 time per week at $56 per hour) over the 39 weeks and 4 days covered by the contract, and I will deduct $11,032.00 from the amount of supplemental tuition billed in the contract.

Direct tuition funding is relief encompassed by the equitable remedial powers inherent in the IDEA. See, e.g., Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). Given my finding that the Private School is the appropriate placement for the Student, the Student is entitled to an award for tuition funding for the Student’s attendance at the Private School for the 2022-2023 school year, to be paid directly to the Private School. See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453-54 (2d Cir. 2013) (“direct payment fits comfortably within the Burlington-Carter framework: like reimbursement, direct payment to the private school that provided the required educational program ‘merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.’”) (quoting Burlington, 471 U.S. at 370-71).

While the amount of tuition at the Private School is not insignificant, I do not find that the tuition costs are excessive or unreasonable, given the Private School’s educational program for the Student. Carter, 510 U.S. 7, 15-16. After considering the entire record presented at hearing, I find that the equities support the Parent’s claim for direct funding, except for the Parent’s claim for the costs of music therapy, which the Student does not appear to have received.

OTHER RELIEF SOUGHT

In addition to tuition funding for the Student’s attendance at the Attending School, the Parent seeks additional relief that I will discuss below.

Transportation

The IDEA requires that a school district must provide transportation for a child with a disability if that service is necessary for a disabled child ‘to benefit from special education.” Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d). Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted).

In addition, New York law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).

The due process complaint seeks funding for the Student’s placement at the Private School for the 2022-2023 school year and transportation to and from this placement. In the DOE’s Closing Brief, the DOE cites two cases in support of its argument that I should issue a reduced transportation award in this matter.^[2] Neither case controls here. Moreover, to the extent DOE Counsel is arguing that DOE should only be responsible for paying for transportation services actually provided to the Student, regardless of the terms of the Transportation Agreement, the State Review Office has explicitly rejected that argument. See Application of a Student with a Disability, Appeal No. 22-138 (January 5, 2023). Citing a recent Southern District of New York decision, the SRO wrote:

The district does not dispute that this student required special education services and would have received such services through the district had it offered a FAPE.

Further, during the impartial hearing, the district did not offer any evidence that other transportation options were available, which would have resulted in a more reasonable cost or identify any other company with whom the parents could have contracted that would not have charged for the days when the student did not utilize the services. Indeed, if the district had provided special transportation to the student, it is unlikely that the district would incur no transportation expenses on the school days that the student was unable to attend school. Id., at p. 9.

In this case, like in Appeal No. 22-138, the DOE presented no evidence regarding possible alternative transportation options for the Student. Accordingly, as I am finding the Private School to be the appropriate placement, I will order that the DOE pay for the Student’s transportation to and from the Private School for the 2022-2023 school year in accordance with the agreement between the Parent and the Transportation Company. See, e.g., Donohue v. Banks, 2023 U.S. Dist. LEXIS 176574, **26-27 (S.D.N.Y. Sept. 30, 2023).

Nursing Services

The DOE has a duty to provide students with disabilities with a FAPE, including the related services that are necessary to assist students with disabilities to benefit from special education. 20 U.S.C. § 1401(a)(17); 34 C.F.R. § 300.34. The Supreme Court has held that if a student cannot attend school without private nursing services, the school district must fund the student’s private nursing services to help guarantee that students with disabilities “are integrated into the public schools.” Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 79 (U.S. 1999).

In this matter, the record shows that the Student could not attend school without the services of a private nurse. As the Director testified, the Student is non-verbal, non-ambulatory, requires adult assistance in all activities of daily living, and is fed via a g-tube. (P-H, ¶ 3) The Director testified that the Student’s one-to-one private nurse has been “absolutely critical for [the Student] to be able to attend school safely. [The Student] does have seizure activity during school. [The Student] does have respiratory concerns during school.” (Tr. 207) The Director further testified: [T]he level of nursing services that [the Student] requires would be way more intensive than what the school nurse could do while maintaining her responsibilities toward the remainder of our students. The school nurse has been available to assist in any kind of emergencies with the one-to-one nurse. You know, there have been times when [the Student’s] oxygen levels have been very low, particularly after seizures or if [the Student’s] getting a little bit of a cold or something. And our school nurse is able to, you know, assist so that the one-on-one nurse can tend to [the Student] and can—they can be kind of a supportive helping hand in those kind of situations. But in terms of the intensive monitoring of [the Student’s] ongoing health condition, our school nurse would then be neglecting the other 41 kids at the Manhattan campus. (Tr. 205)

The DOE cites one case in support of its argument that the DOE should not be responsible for the Student’s one-on-one nursing services: Crosley v. Banks, 2023 U.S. Dist. LEXIS 144938 (S.D.N.Y. Aug. 16, 2023) That case is inapplicable here. In Crosley, the parents sought enforcement of an IHO’s order directing the DOE to pay for tuition and related services in district court. Id. at 8. In that case, the IHO ordered the DOE to pay the student’s tuition and related services in specific amounts, and the parents then argued that additional payment for the Student’s skilled nursing services was required under the umbrella of “related services.” Noting that there were “scant references to nursing services in the underlying administrative record,” the Southern District held against the parents because the IHO’s order clearly did “not require full and separate payment for nursing services.” Id. at 9.

In this matter, as discussed above, there is ample information in the record regarding the Student’s need for skilled nursing services, and there is no issue regarding an underlying prior order. Accordingly, I will order the DOE to pay for the Student’s 1:1 nursing services provided during the 2022-2023 school year, at a flat rate of $113.00 per hour, in accordance with the Parent’s Nursing Services Agreement, and upon receipt of appropriate invoices. (P-J, p. 2)

Attorneys’ Fees

The Parent also requested attorneys’ fees and expenses in the Parent’s amended due process complaint. (P-A, p. 11) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.

IEP Meeting and Additional Requests for Relief

In the amended due process complaint and the Parent’s opening statement, the Parent requested a new IEP meeting for the Student. (Tr. 24-25) Given that the DOE did not hold an IEP meeting for the 2022-2023 school year, and given that I am denying the Parent’s request for a neuropsychological evaluation, as set out below, I will order that the DOE convene a CSE for the Student, hold a new IEP meeting, and discuss whether any new evaluations of the Student are necessary at this time.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Notably, Parent’s Counsel did not clearly articulate what compensatory relief the Parent is seeking as relief for the DOE’s denial of FAPE for the 2021-2022 school year, or why the Student needs a neuropsychological evaluation at this time. When I asked the Parent what she was seeking in term of compensatory education, she testified that she would “love for [the Student] to learn more, explore more, working more on [the Student’s] all [the Student’s] ability to walk or talk or do anything that is possible.” (Tr. 86) Similarly, although the Parent requested a neuropsychological evaluation of the Student in the Parent’s amended due process complaint, in the Parent’s opening statement, and in Parent’s closing brief, the Parent presented no evidence regarding why a neuropsychological evaluation of the Student is necessary, and there is evidence in the record showing that the Parent waived the Student’s triennial evaluation in 2021. (D-5) I asked the Parent if the Student should be re-evaluated, and the Parent testified that it would be nice to have an evaluation on record, but did not provide any information regarding a clinical or educational need for a neuropsychological evaluation. (Tr. 86; Parent’s Closing Brief, pp. 4, 15) Without any specific information regarding the type or amount of compensatory education that is required to put the Student in the position the Student would have been in but for the 2021-2022 denial of a FAPE, I cannot craft an appropriate compensatory education award. See, e.g., Doe v. East Lyme Bd. Of Educ., 790 F.3d at 454. Furthermore, the award of tuition at the Private School for the 2022-2023 school year should contribute to remedying the denial of FAPE for the 2021-2022 school year, given the extensive related services the Student received. Likewise, without any evidence regarding the Student’s current need for a neuropsychological evaluation, I will not order one.

Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based above the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall directly fund the Student’s base tuition fee for the 2022-2023 extended school year at the Private School, in the amount of $137.774.65; it is further

2. ORDERED, that the DOE shall directly fund the Student’s supplemental tuition for the 2022-2023 extended school year at the Private School, in the amount of $69,998.80; it is further

3. ORDERED, that the DOE shall fund the Student’s transportation to and from the Private School for the 2022-2023 school year, in accordance with the Parent’s agreement with the Transportation Provider, and pay up to $345.00 for each morning and afternoon trip the Student took/was scheduled to take using the Transportation Provider upon the receipt of appropriate invoices; it is further

4. ORDERED, that the DOE shall fund the Student’s 1:1 private nursing services for the 2022-2023 extended school year, at a flat rate of $113.00 per hour, in accordance with the Nursing Services Agreement, upon the receipt of appropriate invoices; it is further

5. ORDERED, that the DOE shall convene a CSE for the Student and hold an IEP meeting within 45 days of this order, during which the CSE members shall address what, if any, evaluations are necessary and appropriate for the Student.

SO ORDERED.

DATED: October 6, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at: http://www.sro.nysed.gov.

APPENDIX A – ADMITTED EXHIBITS

DISTRICT’S EVIDENCE

1. Notice of IEP 12/20/2021 3 pages DOE

3. Accommodations Request Documents Various 6 pages DOE

4. Prior Written Notice 12/26/2021 11 pages DOE

5. 3 Year Evaluation Letter and Signed Waiver 3/18/2021 3 pages DOE

6. Parent Notification Additional Services 2/12/2019 3 pages DOE

7. Recovery Services Letter 11/4/2021 3 pages DOE

8. Recovery Services Letter 12/8/2021 3 pages DOE

9. IEP 6/6/2023 57 pages DOE

PARENT’S EVIDENCE

A. Amended Due Process Complaint 4/7/2023 7 pages

C. Private School IEP 6/4/2023 64 pages

D. Ten Day Notice 9/2/2022 2 pages

E. DOE Determination Report 9/26/2022 1 page

F. Private School Enrollment Agreement 9/12/2022 7 pages

G. Transportation Agreement 9/19/2022 5 pages

H. Affidavit of Parent 6/12/2023 3 pages

I. Affidavit of Director of Special Education 6/12/2023 5 pages

J. Nursing Service Agreement Effective from 9/15/22-6/23/23 6 pages

K. Medical Provider Treatment & Accommodation Forms

IMPARTIAL HEARING OFFICER’S EVIDENCE

Various 23 pages

I. Emails re: Student, , Adjournment/Subpoena 6/13/2023 9 pages

II. Emails re: , Student, Status/DPH 5/31/2023 2 pages

III. Emails re: Student, , Adjournment/Subpoena 6/9/2023 7 pages

IV. Re: Urgent – Emergency – Death in Family/New DPH Date 7/13/2023 13 pages

V. Re: 246205 Student Updated Disclosures 8/29/2023 2 pages

Footnotes

[1] The DOE’s exhibits are cited as “D” followed by a letter, the Parent’s exhibits are cited as “P” followed by a letter, and IHO exhibits are cited as “IHO” followed by a roman numeral. The due process hearing transcript is cited by “Tr.” followed by a page number. Transcripts from conferences are cited using their dates followed by “Tr.”

[2] The DOE provided only the Southern District’s civil docket numbers for these cases, rather than proper citations.