Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 250919

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 10/27/2023

Hearing Officer: Mitchell Regenbogen, Esq. x [Redacted], a minor, by and through His Legal Guardian, [Redacted]

FINDINGS OF FACT AND

DECISION AND ORDER

Petitioner

-against- Case No. 250919

Mitchell Regenbogen

Hearing Officer New York City Department of Education, Respondent. x

PROCEDURAL HISTORY

On October 11, 2023, I completed an impartial hearing by telephone in Brooklyn, New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Student’s grandmother and legal guardian (hereinafter the “Parent”) by a due process complaint filed July 5, 2023, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2023-2024 school year. As a resolution the Parent is requesting direct payment of tuition for the Student’s attendance for the 12-month 2023-2024 school year at the ([Redacted]), including the separate costs of related services, 1:1 nursing, and special education transportation with limited travel time, a 1:1 nurse and/or 1:1 paraprofessional, air conditioning, a lift bus, a wheelchair and porter service, a new Individualized Education Program (IEP) meeting, and funding for an independent neuropsychological evaluation. Ex. A.

I was appointed as impartial hearing officer on July 11, 2023. Hearings were held on August 30, 2023, and September 20, 2023, and the due process hearing was completed on October 11, 2023.

BACKGROUND AND POSITION OF THE PARTIES

[Redacted] is a [Redacted]-year-old student who has been classified with a Traumatic Brain Injury (TBI). Exs. 1, C. The Student has severe impairments in the areas of cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing and speech. He is diagnosed with Optic Atrophy and is G-tube dependent, and is non-verbal and non-ambulatory. Id. The Student’s classification and eligibility for special education services were never in dispute.

The Parent unilaterally placed the Student at [Redacted] for the 12-month 2023-2024 school year, and now seeks, inter alia, tuition, related services, nursing and special transportation funding for the 2023-2024 [Redacted] placement. The Parent contends that the District did not provide or offer the Student a FAPE for the 2023-2024 school year, and further contends that the [Redacted] placement is appropriate and that equitable factors support the Parent’s claims. The District contends that it provided a FAPE for the 2023-2024 school year, that the [Redacted] placement is not appropriate, and that equities favor the district.

The District submitted 17 documents into evidence, including affidavits serving as the direct testimony of [Redacted], school psychologist, and [Redacted], special education evaluation placement program officer, who were cross-examined by the Parent. The District also called [Redacted], registered nurse.

The Parent submitted an evidence package containing 10 documents, including affidavits serving as the direct testimony of the Parent, and [Redacted], deputy director at [Redacted]. Both witnesses were cross-examined by the District.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; 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 WL 2982269 [Oct. 15, 2007].

Prong 1

In this case there are several areas of contention with regard to whether the District provided a FAPE for this Student for the 2023-2024 school year.

One concerns the class size. The District recommended a 12:1:4 class, and the Student’s class at [Redacted], which the Parent insists is required for the Student to make educational progress, is the smaller 6:1:1.

The Parent contends that the documentation that the District had in its possession, and used to make its recommendations, clearly state that “[the Student’s] regulation necessitates a 6:1:1 class size with decreased environmental stimuli. He fluctuates frequently between overstimulated and under-aroused and requires constant attention to help him remain calm and attentive during activities.” (Ex. C, at 9; 64.). She points out that even the District’s proposed IEP states that “[the Student] requires an environment with decreased distractions in order to promote his attention and participation during sessions.” (Ex. B, 28.). The Parent ultimately asserts that the District ignored the Student’s needs, used their “one-size-fits-all recommendations,” resulting in a denial of a FAPE. See Parent’s closing brief.

The District contends, and Ms. [Redacted] testified, that the recommendation to place the Student in an 12:1+(3:1) (also known as a 12:1:4) special classroom with the receipt of physical therapy, speech-language therapy, occupational therapy, vision education services, parent counseling and training, school nurse services, a 1:1 paraprofessional (for health, ambulation, feeding, safety), and an assistive technology device would enable the Student to make meaningful progress in the least restrictive environment. Ex. 12, paragraph 15.

I agree with the District’s assertion that the Parent provided no substantive testimony that the Student could not benefit from a class size of 12:1:4. Notwithstanding the Parent’s understandable desire to have the Student in as small a class as possible, the District in its closing brief pointed out that the 12:1:4 class ratio was the Student's least restrictive environment, noting 8 NYCRR 200.6[h][4][iii] provides:

“The maximum class size for those students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment, shall not exceed 12 students.

In addition to the teacher, the staff/student ratio shall be one staff person to three students. The additional staff may be teachers, supplementary school personnel and/or related service providers. “ The SRO in Appeal No. 20-139 found a 12:1:4 ratio appropriate for a student with global development delays with accompanying health-related needs, whose “concomitant impairments resulted in the severe educational needs that could not be accommodated in a special education program designed solely for one of the impairments.” It reasoned that: “[t]he 12:1+(3:1) special class ratio provides for variety in the type of school personnel working in the 12:1+(3:1) and is reflective of the type of service providers this student needs and which may not be found in other special classes on the continuum designed to address the needs of a student with intensive management needs.” See also Navarro Carrillo v. New York City Dep't of Educ., 2023 WL 3162127 (2d Cir. 2023) (stating that the 12:1:4 class ratio is the “most supportive classroom available” in the continuum of classroom options, and finding it to be appropriate for a student who has highly intensive management needs, severe multiple disabilities, and who receives programming that is focused on habilitation and treatment.)

In addition courts have held that for similarly situated students with a classification of traumatic brain injury and that attend [Redacted], that a 12:1:4 class ratio is appropriate. See Navarro Carrillo, id., 2023 WL 3162127, at *3 (2d Cir. 2023); Mason v. Carranza, 2023 WL 6201407, at 11 (E.D.N.Y. 2023). Appeal No. 23-073 at 16; Appeal No. 20-139 at 21.

Based on the foregoing I find that the Parent has failed to refute the District’s evidence that the offered class size of 12:1:4, while not the smallest possible class size, provided a similar staffing ratio of three staff to one student, and that it denied the Student a FAPE.

The second issue in contention is music therapy. I agree with the District here also, that the failure to provide music therapy is not a denial of FAPE. While the student may benefit from music therapy, I find that it is not required for the provision of a FAPE for the Student, in light of all of the other services that the Student was to receive pursuant to the IEP. In fact the IEP stated that the Student would be receiving music as an instructional tool in the proposed District 76 program:

“Music Therapy: The school report provided an update and recommendation for continuation of school based music therapy to target the goals specified in the report. Music therapy is not being recommended as part of the current NYC DOE IEP mandates; present levels and goals are in the draft report provided by school but are not included in this IEP. The team discussed that music can be used as an instructional tool to support with engagement throughout the school day. Parents and school team expressed significant concern about the lack of music therapy as a mandated service noting that the student will not appropriately progress towards the identified goals without the service being provided by a certified music therapist.” Ex 1-21.

According to the unrefuted testimony of Ms. [Redacted], the deficits addressed by music therapy can be adequately addressed by other therapies, such as speech-language therapy and occupational therapy. Ex. 12, paragraph 22.

Courts have found that for students with a classification of Traumatic Brain Injury who attend [Redacted], the deficits that are addressed by music therapy can sufficiently be addressed with other services. See N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013]. The State Review Office (SRO) has reached the same conclusion in a number of appeals:

“[R]eview of the district's February 2021 IEP reveals that it provided related services— albeit in a different way than those the parent preferred—and supports to address the student's needs that [Redacted] addressed through music therapy (see N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013] [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]). There was no denial of a FAPE to the student in this case merely because the district did not opt to use music therapy as a related service in the same manner as [Redacted]”. Appeal No. 22-071.

“Here, the evidence in the hearing record shows that music therapy at [Redacted] offered a different approach for addressing the student's skill needs that were also identified and addressed by the February 2022 IEP related services, annual goals, and management needs, and as such, that the CSE did not recommend music therapy specifically did not result in a denial of a FAPE in this instance. Therefore, I find no reason to disturb the IHO's finding that the student did not require music therapy to receive a FAPE (see N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013] [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]). “ Appeal 22-136.

Accordingly, review of the March 2022 IEP reveals that it provided related services— albeit different than those the parents may have preferred—and supports to address the student's needs that [Redacted] addressed through music therapy (see N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 592-93 [S.D.N.Y. 2013] [finding that, although the evidence may have supported that music therapy was beneficial for the student, it did not support the conclusion that the student could not receive a FAPE without it]).

Accordingly, the district did not fail to offer the student a FAPE because it did not opt to recommend music therapy as a related service for the student in the same manner as [Redacted] and instead recommended different supports and services to address the needs which [Redacted] targeted, in part, with music therapy.” Appeal 23-073.

Based on the foregoing I find that the Parent has failed to refute the District’s position that the omission of music therapy in the IEP fails in and of itself denies the Student a FAPE.

The school location letter (SLL) and prior written notice (PWN) is another point of contention. It is undisputed here that the District developed the relevant IEP in February 2023, and that the District claims to have sent the SLL and PWN, by email, to the Parent, on June 19, 2023, four months later, on a holiday, and three days before the recommended school closed for the year. Tr. 115. While the District in its closing brief artfully argues, and presents legal authority for the general proposition, that the District has no particular deadline when it comes to sending out a SLL and PWN other than before the start of the applicable school year, and that the parent is not necessarily entitled to tour the proposed school, I find that the District sitting on its hands and doing nothing for four months in this case after development of the IEP were unconscionable. This is a Student with profound disabilities and who needs a host of facilities, personnel and supports. To effectively, unnecessarily, and avoidably deprive the Parent of the ability to diligently and comprehensively investigate the proposed school in this case injects significant doubt that the District took seriously either its IEP or this Student’s needs. The District’s argument, if one can call it an argument, that the SLL and PWN were properly delivered because it sent the notices simultaneously with the Parent sending her 10-day notice is disingenuous, as the District’s abject negligence in failing to promptly send out the SLL and PWN after development of the IEP had already shoved the Parent’s back against the wall. Additionally, I am unimpressed with the use of email to send the SLL and PWN, as there is no third party such as the Postal Service or UPS to verify sending and delivery, and no way to establish, other than by emails that can easily be altered, that the notices were actually sent and received. In this case the Parent denies having received the forms, and I find that the District has given me no reason to doubt her.

Based on the foregoing I find that the District’s failure in this case to provide a SLL and PWN in a timely manner, if it did so at all, denied the Parent meaning participation in the placement process for this severely disabled student and denied the Student a FAPE. But that is not the District’s only problem.

A major issue of contention involves 1:1 nursing. The District contends that the Student does not need a 1:1 nurse based on its own registered nurse’s recommendation. The nursing witness, [Redacted], who works as a staff nurse for the District, testified that she based her nursing recommendations that were adopted by the IEP on forms she received and reviewed the same day that the Committee of Special Education (CSE) convened to create the February 2023 IEP. (Tr. 69). She further testified that the forms she received indicated that the Student suffered from seizures, and that he relied on the use of a g-tube for feeding. (Tr. 71). Ms. [Redacted] also stated that her review of forms on February 15th and her resulting conclusions were based solely information on what medications were currently being administered to the Student, and not on any familiarity with the Student or the other extensive medical information that was available about the Student (Tr. 62-63). She stated that she had no personal training with patients diagnosed with traumatic brain injury other than her knowledge of the types of medications such patients are typically given. (Tr. 71). Ms. [Redacted] further testified to her belief that, if a student was on a ventilator, that would require a nurse to be with that student at all times, but if they “don’t have complex needs” then it is typically recommended for the student to simply utilize a school nurse, as was recommended here for this Student (Tr. 64). I find that the conclusion that Ms. [Redacted] reached on the paucity of information that she considered, namely that the Student does not have “complex” medical needs, despite her admitted knowledge of his seizure activity and g-tube nutrition, is a deliberate use of tunnel vision and an unjustifiable minimization of the Student’s conditions, needs, and risks, and is contrary to the evidence in the record.

I find that the Student’s need for a 1:1 nurse is supported not only by documentation that was within the District’s possession, but further by testimony in this hearing. The Parent gave extensive testimony to this effect at the hearing: “[the Student] needs the one-to-one nurse, and because [the Student] have so many different issues. He had some problems with his brain, he's -- he has seizures, and his GI is constantly giving problems. I'm constantly back and forth with [the Student] to the GI doctor. I just had to take him to NYU to get a second opinion on his GI. Right now he has to do -- they have to do surgery to remove the hole from where it is. Last week, Tuesday, I got up the morning early to get him - - start, prepare him for school, and I realized he was still asleep, but he was having seizures in his sleep, and I had to call in the ambulance for him. So we were at -- we were at the hospital two days, Tuesday and Wednesday with him, because of his GI area. We are constant -- this is over two years now that we're having these issues with him and the leakage, constant leakage, I have to constantly be changing the dressing on his GI three, four times a day. Every minute you change it, you look back, you've got to change it again. But these are all the issues with [the Student], so I -- no, I can't say think, I know he needs the one-to-one nursing because you have to constantly be on top of it. Otherwise, the leakage from inside his stomach breaks down his skin. You can't leave the dressing on for too long. “He has seizures. He has brain damage, yes, he doesn't really fully understand what he's doing or understand what you're saying to him. And this is the reason why he needs a one-to-one nurse, because in case that -- okay, he has a seizure and the nurse at the school is tending to him and then another child comes with a problem, then that child is going to suffer. If [the Student] has a problem and they have to take [the Student] to the nurse at the school and the nurse is attending somebody, he has to wait. So that would be a problem for him.” Tr. 145-146, 150-1.

In addition the [Redacted] IEP indicates that the Student requires a 1:1 nurse to manage his medical needs at all times, including frequent feedings and maintenance of his REDACTED. His nurse also assists with management of the Student’s’s oral secretions, as he does not consistently demonstrate independence in swallowing effectively. Ex. C.

Overall, I find the testimony of Ms. [Redacted] unpersuasive and disturbing, while I find the Parent’s evidence and testimony credible, honest and convincing. For a registered nurse sitting at an IEP meeting for a student with TBI and many other physical and medical problems to make a critical nursing recommendation on medicinal needs alone, without considering or giving any weight to information about the Student’s total and continuous severe medical needs and his Parent’s and school’s observations as to the Student’s actual functioning, is hard to fathom. This Student would have, if it was up the District, been forced to rely on a floating school nurse who was responsible for any number of students at one time. I find that the record shows that the District’s IEP would have turned this Student into an embarrassing mess in the classroom, at best completely destroying his ability to learn and at worst causing extensive regression academically, socially and emotionally.

I find therefore that the District’s IEP was inappropriate and likely dangerous for this Student, and that the District denied this Student a FAPE for the 2023-2024 school year. Prong 2 The Parent has the burden of proving that the unilateral placement was appropriate. In order 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 the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. However, 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 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The 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 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):

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

The District presented no evidence to challenge the Parent’s contention that the [Redacted] placement was appropriate for this Student, other than the testimony of Ms. [Redacted], which I have already found unpersuasive. The Parent presented testimony and submitted documentary evidence in support of her position that the [Redacted] placement was appropriate, that it provides a unique and specialized program that is individualized to meet the Student’s needs, and that the Student made educational progress considering his severe disabilities. Parent Exs. A, C, J, K, and Tr. 131-136, 142-153. I find that Parent’s witnesses were credible and persuasive.

The District contends that the Parent failed to prove that the nursing services obtained by the Parent were appropriate. I disagree.

I have already discounted the testimony of the Districts nurse-witness, and I find that it is no more useful now. On the contrary, the [Redacted] IEP provides detailed information about the need for a 1:1 nurse, Ex. C:8-9, Tr. 67, as did the Parent persuasively and credibly in her testimony:

“[The Student] needs the one-to-one nurse, and because [the Student] have so many different issues. He had some problems with his brain, he's -- he has seizures, and his GI is constantly giving problems. I'm constantly back and forth with [the Student] to the GI doctor. I just had to take him to NYU to get a second opinion on his GI. Right now he has to do -- they have to do REDACTED from where it is. Last week, Tuesday, I got up the morning early to get him - start, prepare him for school, and I realized he was still asleep, but he was having seizures in his sleep, and I had to call in the ambulance for him. So we were at -- we were at the hospital two days, Tuesday and Wednesday with him, because of his GI area. We are constant -- this is over two years now that we're having these issues with him and the leakage, constant leakage, I have to constantly be changing the dressing on his GI three, four times a day. Every minute you change it, you look back, you've got to change it again. But these are all the issues with [the Student], so I -- no, I can't say think, I know he needs the one-to-one nursing because you have to constantly be on top of it. Otherwise, the leakage from inside his stomach breaks down his skin. You can't leave the dressing on for too long. ...

He has seizures. He has brain damage, yes, he doesn't really fully understand what he's doing or understand what you're saying to him. And this is the reason why he needs a one-to-one nurse, because in case that -- okay, he has a seizure and the nurse at the school is tending to him and then another child comes with a problem, then that child is going to suffer. If [the Student] has a problem and they have to take [the Student] to the nurse at the school and the nurse is attending somebody, he has to wait. So that would be a problem for him.” Tr. 145-6, 150-1.

I find that on this issue the Parent has presented enough evidence to shift the burden to District to present evidence in rebuttal, which I find the District failed to do with its inadequate nurse witness. In addition the Parent testified that the Student receives nursing services 120 hours per week, Ex. J, the nursing agreement states that the nursing service provides “properly trained and licensed nurses,” Ex. I, and the [Redacted] IEP discusses what the nurse does, Ex. C, especially C43-47. None of this evidence was refuted by any testimony or evidence from the District.

The District’s next complaint is that there is a lack of evidence as to whether the special education transportation was appropriate. I disagree.

The [Redacted] IEP makes clear the Student’s transportation needs, Ex. C:65-66, which the District did not dispute, and the transportation agreement and nursing agreements, Exs. G, I, detail the transportation arrangements that are in conformance with the Student’s stated needs. I find that this is sufficient to shift the burden to the District to offer rebuttal evidence, which it did not do.

I find the District’s next complaint, that the Parent failed to prove that the Student’s instruction is individualized is contrary to the record. The [Redacted] IEP is replete with the instruction that the Student receives, and how it is individualized to his needs. Ex. C. The IEP intersperses, as it must considering the Student’s severe deficits, the Student’s functional activities, academic instruction, use of related services, nursing, use of technology devices, social and classroom activities, and areas of progress and struggle. Id. The District here fails to recognized that this is a severely disabled student, and that much of the work with the Student is concerned with getting him to a point where he can beneficially receive instruction. The IDEA is clear that the determination of what is appropriate is tied to the student’s needs, not a superficial formulaic approach, and I find that based up the unrefuted detailed and comprehensive [Redacted] IEP the school is working with the Student as best as possible, to improve in all of the areas in which the Student needs to improve to benefit from academic instruction. This conclusion is not altered simply because [Redacted] may use common themes and established procedures to deal with all of its TBI students.

I find therefore that the [Redacted] program is appropriate and individualized to meet the Student’s needs as much as practical considering this Student’s unique circumstances. I would note here that the District produced not a single witness to say otherwise.

The above being said, I find the District’s complaint about the lack of credential information about the Student’s teachers and related services providers to be founded. While the credential requirement for teachers in private unilateral placements is flexible, I agree with the District that the related services providers should be duly licensed, certified, or otherwise qualified to provide each related service, and that the burden is on the Parent to provide that information for the record.

Yet there is no evidence in the record, either in the form of a sworn statement or unsworn statement, as to the identities of the Student’s teachers or related services providers or their credentials, other than what is listed on the last page of the [Redacted] IEP entitled “Providers and Contributors.” Some have initials after their names, the “physical therapist” has nothing, and there is nothing in the record as to what the initials mean, and nothing indicating who are the “contributors” and who are the Student’s providers, or whether one or more are both.

Based on the foregoing I will utilize my discretion and reduce the awards for tuition and related services.

I find that the Parent has met the second of the three Burlington/Carter criteria for tuition and related funding, subject to certain award reductions.

Prong 3

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE.

The District’s assertions as to the equities are limited to complaints about the costs of the requested services and the adequacy of the Parent’s ten-day notice.

In general, the District complains that the funding being requested by the Parent is excessive. I can state at the outset that the District asserts several times that funding for a unilateral placement should be limited to the “medicaid” rate. The District provides no authority for the proposition that medicaid-rate funding is required under the IDEA and its position on this is rejected.

The first specific District complaint in its closing brief, that the Parent secured both the transportation and nursing services through [Redacted], is irrelevant and is discarded. If the District is trying to imply something nefarious, it did not prove so or even try to.

The second complaint is that the District has made a general offer to [Redacted] to provide transportation for [Redacted] students and that [Redacted] rejected it. Since the District concedes that it never made the transportation offer to the Parent its argument is irrelevant and is discarded.

I agree with the District that it should be required to fund special education transportation only on days when such transportation took place, and that the District should fund nursing services only on days when nursing services were provided. Nursing and transportation are professional services and should be funded by the taxpayers only when such services are provided.

I also agree with the District’s complaint that the tuition-related cost, which is a separate charge from the nursing, related services and transportation charges, is excessive for what is being provided. The classroom schedule is annexed as Ex. 14 (confirmed in Tr. at 132, lines 7-15), and the only classroom instruction for which $190,000 is being charged are the ADL’s from 8:30-9:00 a.m., class meeting / activity from 2:00-2:30, 1:1 academics from 2:30 to 3:00, and ADL’s again from 4:00-4:30. As this is at most two hours per day, I find that the $190,000 is excessive, especially in light of the lack of evidence about the credentials of the Student’s teachers.

The District’s final complaint about the adequacy of the Parent’s 10-day notice is laughable, considering that it took four months, if it happened at all, for the District to provide to the Parent a proposed school location for this severely disabled and extremely needy child. I find that the Parent’s 10-day notice was more than adequate, Ex. E, and that contrary to the District’s assertion it need not mirror a subsequent due process complaint.

Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition and related funding for the 12-month 2023-2024 school year, less reductions as detailed below. The Parent has therefore met the third of the three Burlington/Carter criteria for unilateral placement funding. Having met all three of the Burlington/Carter criteria, the Parent is entitled to certain funding for the costs of the Student’s 12-month 2023-2024 [Redacted] placement.

It should also be noted that the Parent also requested in her due process complaint a new IEP meeting and funding for an independent neuropsychological evaluation. Ex. A. As the burden was on the District with respect to these two requests and the District presented no evidence or argument in opposition thereto, they shall be ordered.

Based on the foregoing, I find that:

1. The District failed to provide or offer a FAPE for this Student for the 12-month 2023-2024 school year;

2. The Parent established that [Redacted] was appropriate for this Student for the 12-month 2023-2024 school year, subject to certain reductions, and that the Student has made progress at [Redacted] considering his severe disabilities;

3. That equitable considerations support the Parent’s claims, subject to certain reductions;

4. That the Parent established the right to have the District fund an independent neuropsychological evaluation; and

5. The Parent established that the District should convene a CSE meeting to properly consider all information available to it. In addition, I make the following findings of fact and utilize my discretion as follows:

A. The tuition cost being sought, of $190,000.00, Ex. F, as it includes only two hours per day of applicable instruction, compared to a normal school day of approximately six hours, shall be reduced to 34% of the requested amount. However, considering that [Redacted] likely provides facilities and incurs overhead expenses in connection with the separately charged related services and nursing services, and includes a 1:1 paraprofessional, I shall add an additional 30%. Further, considering the difficulties and special skills needed to handle TBI students, I shall add an additional 20%.

Finally, as the Parent provided inadequate information about the credentials, qualifications and experience of any of the [Redacted] personnel working with the Student I shall subtract 15%. Accordingly, I shall award 69% of the requested tuition charge, or $131,100.00 for the 12-month 2023-2024 school year.

B. As the Parent has provided inadequate information about the licensing, credentials or experience of any of the related services providers who are actually working with the Student, the charge of $116,544.00, Id., which [Redacted] calls “supplemental tuition fees,” shall be reduced by 50%, and I shall award $58,272.00.

C. While the Parent may have contracted with the transportation provider to pay for transportation “based on SCHOOL DAYS, whether STUDENT used SERVICES or not,” Ex. G, I find that the taxpayers shall not pay for services not provided.

Consequently, I shall award the requested transportation charge of $111,180.00, Id., but shall allow the District to subtract from that amount a proportional amount for any school days for which transportation was not provided.

D. While the Parent may have contracted with the nursing services provider to pay for nursing services “based on SCHOOL DAYS, whether STUDENT used SERVICES or not,” Ex. I, I find that the taxpayers shall not pay for services not provided.

Consequently, I shall award the requested nursing charge of $265,960.00, Id., which represents charges for both transportation and school nursing, but shall allow the District to subtract from that amount a proportional amount for any school days for which nursing services were not provided.

ORDER

Accordingly, it is hereby ORDERED that the New York City Department of Education is directed:

1. To pay directly to [Redacted] a maximum amount of $131,100.00, towards the [Redacted] tuition charges for this Student for the Student’s attendance for the 12-month 2023-2024 school year, within 30 days of receipt of an invoice from [Redacted];

2. To pay directly to [Redacted] a maximum amount of $58,272.00, towards the [Redacted] supplemental tuition charges for this Student for the Student’s attendance for the 12-month 2023-2024 school year, within 30 days of receipt of an invoice from [Redacted], if and only if the invoice includes the names and credentials of the related services providers who worked directly with the Student;

3. To pay directly to the transportation provider a maximum amount of $111,180.00, for the Student’s special education transportation for the 12-month 2023-2024 school year, within 30 days of receipt of an invoice from the transportation provider, if and only if the invoice details every school day for which transportation was provided and every school day for which transportation was not provided, and the District may subtract from the above maximum amount a proportional amount for the number of school days for which transportation was not provided;

4. To pay directly to the nursing services provider a maximum amount of $265,960.00, for the Student’s transportation and nursing services for the 12-month 2023-2024 school year, within 30 days of receipt of an invoice from the nursing services provider, if and only if the invoice details every school day for which nursing services were provided and every school day for which nursing services were not provided, and also includes the names and credential of the nurses who provided the services, and the District may subtract from the above maximum amount a proportional amount for the number of school days for which nursing services were not provided;

5. The District shall forthwith fund an independent neuropsychological evaluation for this Student; and

6. The CSE shall convene a new IEP meeting for this Student after receipt of the independent neuropsychological evaluation report; and It is further ORDERED all other relief requested by the Parent is denied.

Dated: November 8, 2023

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parents:

[Redacted], Esq.

[Redacted], Esq.

[Redacted], Grandparent

[Redacted], Witness

For the District:

[Redacted], Esq.

[Redacted], Witness

[Redacted], Witness

[Redacted], Witness

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.