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COVER SHEET
| Case Number | 250889 |
| Requested | July 4, 2023 |
| Hearing Officer | Sharyn Finkelstein |
FINDINGS OF FACT AND DECISION
| Student’s Name | REDACTED |
| Case Number | 250889 |
| Date of Birth | REDACTED |
| District | REDACTED |
| Hearing Requested By | Parent |
| Date of Hearing | September 29, 2023 |
| Hearing Officer | Sharyn Finkelstein Esq. |
| Record Close | October 25, 2023 |
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2023
FOR THE STUDENT
| REDACTED | Attorney |
| REDACTED | Attorney |
| REDACTED | Observer |
| REDACTED | Observer |
| REDACTED | Parent |
| REDACTED | Deputy Director REDACTED |
FOR THE DEPARTMENT OF EDUCATION
| REDACTED | Attorney |
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (hereinafter referred to as “Student”) for the 2023-2024 school year.
The parties moved to extend the compliance date on several occasions for preparation for hearing and witness availability. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need for one extension was greater than any delay in the resolution in this matter.
Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on October 25, 2023.
BACKGROUND
Student is REDACTED old and classified with traumatic brain injury. He is diagnosed with cerebral palsy and epilepsy. He is non-ambulatory and nonverbal. He uses a wheelchair. (Tr. 89, Exhibit C)
On March 31, 2023 the CSE convened to create an IEP for Student for the 2023-2024 school year. They recommended an 8:1:1 class with related services. They recommended a District 75 placement. (Exhibit 1)
Parent did not receive a placement prior to the start of the 12- month school year.
Parent sent ten -day notice to DOE. (Exhibit G)
Student had attended REDACTED since 2019-2020 school year. Parent re-enrolled Student at REDACTED for the 2023-2024 school year. (Exhibit D)
Parent entered into a transportation agreement. (Exhibit E)
Parent entered into a nursing agreement. (Exhibit F)
Parent filed a due process complaint in order to obtain funding for Student’s attendance at REDACTED including costs for nursing and transportation to and from the school. (Exhibit A)
DEPARTMENT OF EDUCATION’S CASE
The Department of Education (DOE) was represented by their attorney REDACTED. They did not put on any witnesses. They conceded that they provided Parent with a prior notice package for placement on July 10, 2023 after the start of the 12-month school year. (Tr. 28) They challenge the request for tuition, nursing services, and transportation to and from REDACTED. (Tr. 29) It is their position that Parent’s requests should be denied in their entirety. They submitted evidence in support of their position and cross-examined Parent’s witnesses. They submitted a closing brief.
PARENT’S CASE
The parent was represented by their attorney REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 2023-2024 school year. They maintain that Student’s current program at REDACTED is appropriate and addresses all of Student’s individual needs. They maintain that there are no equitable considerations that would bar Parent from full relief. It is their position that Parent is entitled to funding for tuition including related services, one-to one nursing and transportation. (Tr. 30) They submitted evidence in support of their position The deputy director of REDACTED and Parent testified. They submitted a closing brief.
FINDINGS AND CONCLUSIONS
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
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. 04-046; The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).
The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v. New York City Department of Education (SDNY 2010).
The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the Parent’s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter. 114 S.Ct. 361[1993]). The parent must prove that the student will receive an appropriate educational benefit from the program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education 459 F. 3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District. 489 F.3d 105 (2d. Cir. 2007). Under Frank G the Court held that “to qualify for reimbursement under the IDEA, Parents need not show that a private placement furnishes every special service necessary to maximize the student’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handclapped child, supported by such services and are necessary to permit the child to benefit from instruction” (Id.).
With respect to prong two, the parents must show that the educational program met the student's special educational needs Burlington supra at 471 M.S. v. Board of Education, 231 F.3d 96, 104-105 (2nd Cir 2000). The private school need not employ certified special education teachers, nor have its own IEP for the student. Application of the New York City Department of Education, Appeal No. 06-037; Application of a Child with a Disability, Appeal No. 02-111.
Plaintiff's burden is to show that the program was properly designed for the student to progress and is not required to show that the student in fact progressed significantly. G.R. v. New York City Department of Education, 07 CIV 4711 (TPG) (SD NY Decided August 7, 2009).
The SRO has determined as a matter of law that a parent's unilateral placement of a child in a school that does not provide the necessary related services a student needs renders the placement inappropriate under Prong II of Burlington. See, Application of a Child with a Disability, Appeal No. 11-057 (SRO denied tuition because the private school did not provide adequate related services to meet the child's needs)
Courts consider the “totality of the circumstances” and 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.” Frank G., 459 F.3d at 364-65;
The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. at 203-204. While parents are not held as strictly to the least restrictive environment standard as school districts, “the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement.” Application of a Student with a Disability, Appeal No. 08-130 (denying reimbursement where unilateral placement “did not provide the student with special education services in the least restrictive environment”)
The third and final criterion for an award of reimbursement is that the claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA, Burlington supra at 471 U.S. At 374.
New York courts consider whether the parent has “failed to cooperate with a school district or otherwise frustrated a district's attempt to offer a FAPE” and whether the parent attended IEP meetings and school visits, and communicated with the DOE. D.A v. N.Y.C. Dep't of Educ, 769 F. Supp 2d 403, 419020 (S.D.N.Y. 2011). under the IDEA, Burlington supra at 471 U.S. At 374.
With respect to prong one the DOE conceded that they did not provide a timely placement. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program or placement. DOE did not dispute any of the allegations. I find DOE failed to provide Student with a FAPE for the 2023-2024 school year. I find that the DOE did not meet their burden under prong one.
With respect to prong two, REDACTED is a 12-month school. All of the students are nonverbal and non-ambulatory. They serve students that suffer from acquired brain injuries and brain-based disorders. They all require a one- to -one paraprofessional to assist them in activities of daily life. Some students required a one-to-one nurse. Students range from age five to twenty-one. (Tr. 35)
There are ten classrooms. Seven classrooms are 6:1:1 and three are 6:1:1.
Every student has an IEP which is done through a multidisciplinary approach. The providers and educators collaborate to identify what is best for a student in terms of academic needs, cognitive and socioemotional needs. An IEP was developed for Student. It describes his needs and abilities and includes goals to meet his needs. (Exhibit C)
They have an extensive range of related services including occupational therapy, physical therapy, speech therapy, vision education, music therapy, and assistive technology. Related services are provided in sixty -minute sessions either in push-in or pull -out models. This accounts for transferring and repositioning needs, and times for rest. (Tr. 37-38)
Student receives occupational therapy, physical therapy and speech language therapy five times a week. He receives vision education and hearing services three times a week. He receives assistive technology once a week and music therapy four times a week, all in sixty-minute intervals. (Tr. 44)
Student is in an 8:1:1 classroom and requires a significant degree of individualized attention and highly intensive management needs. (Exhibit C)
Student receives one to one academics every day for thirty minutes as well as academics delivered through group meetings. Student has extensive opportunities to have academics throughout the day by means of group meetings which Student receives in a group. There are push in sessions given to Student by his teacher assistants and therapists. (Tr. 45) Students have specific individualized one to one academics from their teachers. Each teacher or instructor addresses Student’s individualized academic goals. The group academics address social skills such as ability to attend and greet. The one -to-one academics and one to one push ins are more tailored and specific to address individual goals. (Tr. 64) The one- to -one academics are provided outside of the classroom. (Tr 66)
Student has a one- to- one paraprofessional as well as a one -to -one nurse. (Tr. 45)
Witness opined that Student made progress in his one- to- one academics. Student made progress in music therapy. He explained that music therapy assists Student in his socio-emotional regulation. Student is motivated by music therapy. (Tr. 46)
Witness described academic progress Student made in math and literacy and social skills. (Tr. 46-47) Witness observed that Student made progress with his ambulation. Witness opined that Student made progress with his daily living skills. (Tr. 48)
Classrooms are designated by the setting mandated on an IEP and by their age. Witness explained that a student can make academic progress and remain in same class. (Tr. 52) He opined that student made progress by remaining with same teachers. (Tr. 52)
Student is able to utilize his AAC device and has improved significantly in his social skills.
Witness explained that Student has made progress with dressing himself. He requires a lot less assistance. He requires less and less cues. (Tr. 71)
Parent testified that Student made progress over the year. He was able to identify more objects, attempted to self -feed and drink on his own and has made improvements in his daily skills. He is able to retain more information. (Tr. 97)
Parent testified that Student is very receptive to music therapy which helped him to improve his attentiveness. He has improved his attention span and ability to retain information. (Tr. 93) She opined that it helped him a lot with his social skills and opined that it is a great motivator for keeping his attention. (Tr. 96)
Parent submitted a progress report. (Exhibit J).
I find that REDACTED provides Student with a special education program that addresses his various and complex needs. I find evidence establishes that Student did in fact make progress in various areas. Student had attended REDACTED during the prior year which an IHO found to be appropriate. (Exhibit I) find it was reasonable for Parent who was provided with no other timely placement from the DOE, to continue to place Student at REDACTED during the 2023-2024 school year. DOE points out in their closing that Witness had limited knowledge with respect to many issues. I find that in spite of the inability of witness to respond to all questions on cross-examination, REDACTED is reasonably calculated to confer an educational benefit on Student. I find Parent met their burden under prong two.
With respect to prong three, Parent attended the IEP meeting and provided ten-day notice. There is no evidence that Parent did not cooperate with the DOE. I find nothing that would prevent Parent from obtaining relief for tuition reimbursement.
Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements (See Connors v. Mills, 34 F.Supp.2d 795 at 805- 806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)
Parent testified she is unable to pay up front for most of the bills. (Tr. 97) I find Parent is entitled to direct funding
NURSING SERVICES
Parent entered into a nursing contract for 1 :1 nurse on the bus and during school hours at school. (Exhibit F)
DOE argues in closing that 1:1 nursing is not necessary.
Witness opined that Student requires a one- to- one nurse because of his medical problems which affect his physical functioning and ability to process speech. (Tr. 46)
Witness explained that the paraprofessional is there to assist student with transferring and in student’s activities in daily life. The nurse is there to assist Student in areas regarding his medical needs. (Tr. 56) Student has had a one-to-one nurse since attending school. Student has seizures and needs to be monitored. (Tr. 90) Parent submitted an MAF form (Exhibit N) Parent opined that the one-to-one nurse is “very vital” because Student has unknown triggers for his seizures. (Tr. 92) Parent testified that Student cannot attend school without a nurse. When Student is on bus or at school, he requires a nurse. (Tr. 102)
DOE points out that Parent Witness was unaware of how many seizures Student had during the prior year or in the current school year. They point out that there is no specific updated medical form for the 2023-2024 school year. A review of the medical accommodation forms (Exhibit N) establishes that Student has epilepsy and untriggered seizures. I find evidence establishes that Student requires a nurse on the bus and while at school.
DOE in closing states that the contract is not appropriate based on the rate but they did not offer any alternative rate. I find no evidence that the rate is excessive. I find Parent signed an agreement for the nursing services which obligated her to pay even if services were not provided. I find that Parent was not aware at the time of the hearing, of the provisions of the agreement. I cannot conclude that there was any fraud or duress. I find that even if Parent is obligated for services that were not provided, it does not follow that DOE is responsible to pay for said services. As DOE points out in closing, Witness had no knowledge of attendance and there is no attendance record in evidence.
Parent testified that the nurse does attend some remote sessions because she is at work. (Tr. 102) Contract applies to transportation nurse. It also provides a 1:1 private duty nurse for student during the school hours at SCHOOL. (Exhibit F-2) I find that contract does not apply to nursing services in the home.
I find that DOE is only responsible for days when nursing services were provided on the bus and at school. Contract was based on 218 school days. (Exhibit F1) The total amount is $292,556. (Exhibit F-2) I find DOE is responsible to fund $1342 for each day that Student received services on the bus and at school.
TRANSPORTATION CONTRACT
It is undisputed that Student requires special transportation. There is no evidence that DOE offered to provide Student with special transportation. Parent entered into a contract which clearly obligates them to pay for transportation services even on days when they are not provided. (Exhibit E)
Parent was unaware of the provisions at the time of the hearing. I cannot conclude that there was fraud or duress. As discussed above there is no evidence of when Student attended school. I find DOE should not be required to pay for services that were not provided.
Contract is based on 218 school days (Exhibit E-1) The total amount of the contract is $166,770. (Exhibit E-2) I find DOE should fund $765 for each day that services were provided.
In summary, I find that DOE did not provide a FAPE to Student for the 2023-2024 school year, REDACTED is appropriate and equities favor Parent. I find Parent is entitled to direct funding for the tuition. I find Student required a 1:1 nurse on the bus and while at school. I find DOE is only responsible for services that were actually provided. I find Student is entitled to special transportation. I find DOE is only responsible for services that were actually provided.
ORDER
DOE shall directly fund tuition for Student’s attendance at REDACTED during the 2023-2024 school year upon evidence of contract and attendance.
DOE shall directly fund nursing contract for 1:1 service provided on the bus and at school at the rate of $1342 per day upon evidence of services that were provided.
DOE shall directly fund transportation contract at the rate of $765 per day upon evidence of services that were provided.
Sharyn Finkelstein November 4, 2023
PLEASE TAKE NOTICE
Within 40 days of receipt of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and with 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
EVIDENCE ENTERED INTO THE RECORD
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| A | Due Process complaint 250889 | July 5, 2023 | 10 pages |
| B | Findings of fact and Decision 228074 | October 20, 2022 | 19 |
| C | REDACTED IEP 23/24/ school year | March 30, 2023 | 77 |
| D | REDACTED enrollment contract 23/24 school year | July 3, 2023 | 6 |
| E | Transportation agreement | July 7, 2023 | 6 |
| F | Nursing agreement 23/24 school year | July 7, 2023 | 8 |
| G | Ten-day notice 23/24 school year | June 20, 2023 | 2 |
| H | Private school location letter 23/24 school Year | July 10, 2023 | 13 |
| I | DOE IEP 22/23 school year | March 7, 2022 | 74 |
| J | Quarterly progress report 23/2024 school Year | July 7, 2023 | 30 |
| K | Omitted | ||
| L | Functional vision evaluation 19/20 school year | September 12, 2019 | 7 |
| M | Psychoeducational evaluation 21/22 school year | January 17, 2022 | 8 |
| N | MAF 22/23 school year | August 17, 20022 | 9 |
DEPARTMENT OF EDUCATION
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| 1 | IEP | March 31, 2023 | 55 |
| 2 | IEP attendance page | March 31, 2023 | 1 |
| 3 | Prior notice package replacement | June 12 2023 | 8 |
| 4 | Prior notice package replacement | July 10, 2023 | 8 |
| 5 | Nursing referral 2023 | unidentified date | 1 |
| 6 | REDACTED IEP | March 22, 2023 | 77 |
| 7 | Quarterly progress report | January 6, 2023 | 28 |
| 8 | Quarterly progress report | November 7, 2022 | 27 |
| 9 | Medical accommodation form | August 16, 2022 | 9 |
| 10 | Prior notice package replacement | June 11, 2022 | 2 |
| 11 | Prior notice package replacement | June 7, 2022 | 2 |
| 12 | Classroom observation | February 4, 2022 | 2 |
| 13 | Psychoeducational evaluation | January 17, 2022 | 8 |
| 14 | Social history update | January 5, 2022 | 2 |
IHO EVIDENCE
| Exhibit | Description | Date | Pages |
|---|---|---|---|
| I | DOE closing | October 19, 2023 | 14 |
| II | Parent closing | October 18, 2023 | 17 |