New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 250926

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 08/02/2023

08/07/2023

08/21/2023

08/22/2023

Actual Record Close Date: 09/06/2023

Decision Date: 09/08/2023

Hearing Officer: Daniel Ajello Esq. Hearing Officer‘s Finding of Fact & Decision

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/02/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Attorney — Student

[REDACTED], Observer — Student

[REDACTED], Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/07/2023

(All present by video or telephone)

[REDACTED], Attorney — Student

[REDACTED], Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/21/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Observer — Student

[REDACTED], ESQ., District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/22/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Observer — Student

[REDACTED], Observer — Student

[REDACTED], — Parents

[REDACTED], Director of Special Education at — Student

[REDACTED]

For the Department of Education: [REDACTED], ESQ., District Representative

Hearing Officer‘s Finding of Fact & Decision

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 08/02/2023

EX DATE DESCRIPTION PAGE(S)

A 07/05/2023 Due Process Complaint (DPC) 10 B 02/07/2021 Findings of Fact and Decision Case# 196301 13 C 09/26/2022 Order of Pendency Case # 228632 3 D 11/22/2021 Order of Pendency Case # 210742 1 E 04/16/2021 State Review Officer Decision No. 21-079 8 Entered 08/21/2023 F 05/18/2023 Department of Education (DOE)

Individualized Education Program (IEP)

23-24 School Year 52 G 05/18/2023 International [REDACTED]

([REDACTED]) IEP 2023-24 School Year 58 H 06/20/2023 Ten Day Notice (TDN) 23-24 School Year 2 I 07/07/2023 [REDACTED] Enrollment Contract 23-24 School Year 6 J 07/07/2023 Transportation Agreement 23-24 School Year 6 K 03/28/2022 DOE IEP 22-23 School Year 61 L 06/06/2019 Medical Forms 19-20 School Year 14 Entered 08/22/2023 M 08/22/2023 [REDACTED] Affidavit 23-24 School Year 4 N 08/22/2023 [REDACTED] Affidavit 23-24 School Year 5

Hearing Officer‘s Finding of Fact & Decision

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 08/02/2023 I Notice of Appointment, 07/11/2023, 4 pages II Teleconference Notice, 07/11/2023, 1 page III Notice of Appearance, 07/17/2023, 1 page IV Notice of Appearance, 07/20/2023, 1 page Entered 08/21/2023 V Pendency Order, 08/02/2023, 8 pages VI Notice of Appearance, 08/09/2023, 1 page Hearing Officer‘s Finding of Fact & Decision

INTRODUCTION

On 07/11/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 1-2)

Hearing to determine Student Pendency was held on 08/02/2023.

Pre-Hearing Conference was held, on 08/07/2023, and Hearing set to continue on 08/21/2023 and 08/22/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

The IEP, entered as Exhibit F, was identified and dated 06/01/2023. However, the 06/01/2023 date is actually the IEP commencement date. (Ex F 40) The actual date of the IEP is 05/18/2023. (Ex F 47)

Pendency Order was issued, on 08/02/2023, identifying Pendency via a Findings of Fact and Decision, Case No. 196301, 09/07/2021 (Ex B 10), which contained:

- The New York City Department of Education is directed to fund the cost of the Student’s twelve-month school year placement at [REDACTED] in a total amount not to exceed $[REDACTED];

- The New York City Department of Education is directed to provide payment for transportation for the Student upon proof that the service was provided by issuing payment directly to [REDACTED] for any balance due within two weeks of the submission of an affidavit setting forth the amount due; and

- The New York City Department of Education is directed to provide payment for Related Services at a rate of $[REDACTED] per hour which include individual nursing services, transportation paraprofessional and assistive technology devices for the entire twelve-month school year by issuing payment directly to [REDACTED] for any balance due within two weeks of the submission of an affidavit setting forth the amount due. Hearing Officer‘s Finding of Fact & Decision

(IHO Ex V 7)

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 2023-2024 school year. (Ex A 1)

The DPC includes a review of Student’s educational history, and allegations:

- Student suffers from a brain injury which results in impairments, and diagnoses affecting his education and health, with a Classification of

Traumatic Brain Injury (TBI);

- Due to the severe nature of his brain injury, [REDACTED] is non-verbal and non-ambulatory and has highly intensive management needs, requiring a high degree of individualized attention and intervention throughout the school day;

- Student requires a small, structured classroom offering an educational program delivered via a 1:1 direct instruction model, as well as a modified environment reducing visual and sound distractions. [REDACTED] additionally requires a full-time 1:1 paraprofessional, to support his healthcare needs, to ensure that he is able to attend and participate in his educational program, and to assist with all activities of daily living (“ADL”). [REDACTED] also requires a 1:1 nurse to monitor seizure activity, monitor asthma signs and symptoms, observe aspiration precautions, monitor his feeding, monitor his allergy plan, provide treatment in any of the aforementioned areas as needed, and to attend to his medical and academic needs throughout the day. It should be noted that [REDACTED] has severe life-threatening allergies to fish, eggs and latex. He requires a controlled school environment without these allergens in order to maintain his health and safety;

- Student also needs periodic breaks, additional processing time for tasks, and purposeful repetition of tasks during therapy sessions and educational instruction, to accommodate [REDACTED]’s intensive needs;

- Student requires an extensive regimen of related services, delivered in 60- minute sessions, including occupational therapy (OT), physical therapy (PT), speech and language therapy (SL), assistive technology (AT), vision education Hearing Officer‘s Finding of Fact & Decision services (VES), hearing education services (HES), and music therapy (MT) in order to benefit from special education instruction. Because of the intensive level of services that [REDACTED] requires, it is necessary for [REDACTED]

to attend a program which operates on an extended school day;

- [REDACTED] also requires an extended school day in order to accommodate the intensive level of care required to prepare him for the school day upon arrival, and to prepare him for dismissal at the end of the day. (Ex A 3)

- Student has attended [REDACTED] since the 18-19 school year, and currently attends a 6:1:1 class, with am array of services and supports (Ex A 3-4)

- [REDACTED] services are detailed, and meet said services continue to meet Student’s academic needs;

- IEP was developed, on 03/17/2023, and a placement offered in a DOE Public

School;

- Parent visited the recommended placement and voiced concerns, including safety, noise and allergies (Ex A 4);

- Paret does not believe the proposed placement would be appropriate (Ex A 5);

- Parent went through the Hearing process and the DOE was found to have denied the Student a FAPE, for the 22-23 school year and that [REDACTED]

was appropriate. Presently, this matter is under Appeal;

- For the 23-24 school year, an IEP was completed, on 04/28/2023;

- Some agreement was reflected in the IEP, including classification as TBI and a

6:1:1 class;

- Parent disagreed with:

• DOE’s failure to recommend music therapy;

• Committee on Special Education’s (CSE’s) failure to recommend an extended school day;

• CSE’s failure to recommend or hearing education services

(HES);

• CSE’s failure to recommend 1:1 nursing as Student has a clear need due to his medical conditions. Student would not be able to attend school without a 1:1 nurse. (Ex A 5); Hearing Officer‘s Finding of Fact & Decision

- As of the date of this DPC, Student’s Parent has not received a Prior Written Notice (PWN) or a School Location Letter (SLL) for the 2023-2024 extended school year. This is a violation of FAPE as Student’s Parent has no place to send their child for the 2023-2024 school year.

- Due to these failures, the Parent decided to re-enroll Student at [REDACTED]

for the 23-24 Extended School Year (ESY). (Ex A 5)

Parent seeks relief that includes:

a. An Order declaring that DOE denied [REDACTED] a FAPE during the 2023-

2024 ESY;

b. A determination that [REDACTED] (Unilateral Placement – UP) is appropriate for Student;

c. An Order directing payment by DOE directly to [REDACTED] for the cost of

Full Tuition for the 2023-2024 ESY in addition to the costs of related services, 1:1 nursing services, and a 1:1 paraprofessional;

d. Direct and/or prospective funding of special education transportation with limited travel time, a 1:1 transportation nurse, air conditioning, a lift bus, and a regular-sized wheelchair;

e. An Order directing DOE to fund an IEE in the form of an independent neuropsychological evaluation conducted by a qualified provider of Parent’s choosing at a reasonable market rate;

f. An Order directing DOE to reconvene a new IEP meeting within sixty (60) days to address changes if necessary; and

g. An Order directing DOE to conduct all necessary evaluations of [REDACTED]

within thirty (30) days.

(Ex A 8-9)

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 Hearing Officer‘s Finding of Fact & Decision

Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 23-24 school year. (T 27)

The also failed to rebut any evidence presented by the Parent.

Parent Attorney, via opening statement, and then closing statement, recounted the Student’s challenges and educational history, the Parent’s position relating to the alleged denial of FAPE for the 23-24 school year, and sought after relief. (T 34-37, T 58-62)

Parent Attorney provided information regarding how the UP Tuition was calculated. Student’s full tuition, of $[REDACTED].00, does not cover transportation. (T 43, Ex I)

Parent Attorney believes the Student’s nurse is paid via Medicaid, so long as included in an Order. (T 45-46)

Regarding Student transportation, a yearly cost of $[REDACTED].00, is reflected in the Student’s Transportation Contract. (Ex J)

The IHO noted a daily rate was not reflected in the Contract. (Ex J)

The DOE representative argues that any DOE funding of transportation be limited to days transportation actually took place. (T 49)

Parent Attorney argues that the transportation provider should be paid for any day transportation is available for the Student. (T 49 & 52)

The IHO notes that the Transportation Agreement should address how days where Student was not transported would be billed, if at all. For example, would notice be required in advance to avoid potential billing for a transportation day where transportation was available, but did not take place. (T 50-51 & 54-56)

Student’s Parent added Testimony, related to transportation, which included, that sometimes another child is transported with the Student (T 53); and Student is transported in an Ambulette. (T 57)

At Hearing, the Parent supported its position via uncontested Documentary, and Testimonial Evidence Hearing Officer‘s Finding of Fact & Decision The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

A 07/05/2023 Due Process Complaint (DPC)

Details Parent allegations of a denial of a FAPE, for the 23-24 school year, and sought after relief.

B 02/07/2021 Findings of Fact and Decision (FOFD) Case# 196301

Served as the basis of the Student’s current Pendency (IHO Ex V), directing DOE funding of Student UP program with related services and transportation, for the 20-21 school year.

C 09/26/2022 Order of Pendency Case # 228632

Previous Student Pendency Order.

D 11/22/2021 Order of Pendency Case # 210742

Previous Student Pendency Order.

E 04/16/2021 State Review Officer Decision No. 21-079

State Review Officer (SRO) Decision modifies, slightly, the FOFD Case 196301. (Ex B)

Modification clarifies how DOE is to fund Student’s related services. (Ex E 7-8)

F 05/18/2023 DOE IEP 23-24 School Year

Confirms Student’s classification of TBI. (Ex F 1)

Details areas of Student special education need and recommends services, and supports, that include:

- Management needs relating to: Academics, Environment, Social Development, Physical Development, and Health (Ex F 19-20)

- Assistive Technology (Ex F 22) Hearing Officer‘s Finding of Fact & Decision

- Special Class 6:1+1

- Occupational Therapy (OT)

- Parent Counseling and Training (PCAT)

- Physical Therapy (PT) (Ex F 40)

- School Nurse Services, as needed

- Speech Language Therapy (SLT)

- Vision Education Services

- Health Paraprofessional

- Assistive Technology (Ex F 41)

- 12 month services (Ex F 42)

- Special Transportation:

o Transportation from the closest safe curb location to school.

o Adult Supervision – 1:1 Nursing Services

o Vehicle and/or Equipment Needs – Student uses Oxygen o Vehicle and/or Equipment Needs – Lift Bus o Vehicle and/or Equipment Needs – Air Conditioning o Vehicle and/or Equipment Needs – Student uses wheelchair (Oversize)

o Other Accommodations – Limited Travel Time (Ex F 46)

G 05/18/2023 [REDACTED]/[REDACTED] IEP 23-24 School Year

Student UP Report and Education Plan includes:

- Detailing Student’s special education needs, and challenges: non-verbal and nonambulatory with seizures, spastic quadriplegia, cerebral palsy, intractable epilepsy, microcephaly, asthma, Cortical Vision Impairment, nystagmus, primary disability classification of Traumatic Brain Injury, and severe allergies. (Ex G 1);

- Detailing Student Functional Performance, and supports required, in areas that include:

-

o Cognitive (Ex G 1-3)

o Physical, including equipment needs (Ex G 3-6) Hearing Officer‘s Finding of Fact & Decision o Classroom Participation Skills (Ex G 6)

o Needs, including Student: requires continuation of a 1:1 private nurse and 1:1 paraprofessional to attend to his medical and academic needs throughout the day. Seizure related activity will vary (i.e., frequency and number of seizures) where [REDACTED] will typically require breaks and reassurance from his paraprofessional and/or 1:1 nurse before continuing the session. A 1:1 paraprofessional is required for Student as he requires total assistance in all areas of selfcare, positional changes, sensory regulation, and mobility to navigate his environment.

(Ex G 6)

o Gross Motor Skills (Ex G 8-10)

o Vision (Ex G 11-14)

o Academics (Ex G 14-15)

o Visual Performance (Ex G 15-18)

o Assistive Technology (Ex G 18-19)

o Expressive Language (Ex G 19)

o Social Interaction (Ex G 20)

o Speech (Ex G 21-22)

o Receptive Language

o Expressive Language (Ex G 23-24)

o AAC (Ex G 23-24)

o Oral Motor

o Feeding (Ex G 24)

o Hearing Education Services (HES) (Ex G 25)

o OT (Ex G 26-27)

o PT (Ex G 27-29)

o Music Therapy (Ex G 30-31)

Report details Student Management Needs, affecting Student Academic Achievement, Social Development, and Physical Development broken down into:

o Human Management Needs Hearing Officer‘s Finding of Fact & Decision o Environmental Management Needs o And Material Management Needs (Including Assistive Technology)

(Ex G 31-33)

Report details Student Health Management Needs, focused on Nursing services. (Ex G 33-35)

Includes Behavioral Strategies and supports. (Ex G 35-36)

Sets forth goals in areas that include: Academics (Ex G 36-38); VES (Ex G 3839); HES (Ex G 39-40); Assistive Technology Services (Ex G 40-42); SLT (Ex G 42-44); PT (Ex G 44-46); OT (Ex G 46-48); Music Therapy (Ex G 48-50); PCAT (Ex G 50-52); and Paraprofessional (Ex G 52-53)

Up Program recommendation includes:

o 12-Month Program

o 6:1:1

o 1:1 Paraprofessional

o 1:1 Nurse

Reason for recommendation is provided:

Student “…has progressed in his current class setting and a more restrictive setting is not warranted at this time. Further, [Student] continues to require a small class size of no more than 6 students due to his need for a highly structured, contained environment with limited visual and auditory distractions. [Student’s] health needs require that he be in a safe environment that can ensure his safety; a classroom with students who are dissimilar to [Student] in profile would pose a potential health risk. [Student] requires 1:1 direct instruction, and the larger class sizes would significantly and inappropriately reduce the amount of time that [Student] would be able to receive 1:1 time with the teacher.” (Ex G 54)

Transportation recommendation includes:

Busing with:

o Adult Supervision – NURSE

o Vehicle and/or Equipment needs – AC

o Vehicle and/or Equipment needs – LIFT-BUS/WHEELCHAIR RAMP Hearing Officer‘s Finding of Fact & Decision o Vehicle and/or Equipment needs –WHEELCHAIR (Large size)

o Vehicle and/or Equipment needs – Oxygen on bus o Other Accommodations – LIMITED TRAVEL TIME 90 MINUTES.

(Ex G 56)

Summary of Student’s program and services includes:

Program and Service Service Delivery Frequency Duration

12-Month Program, Non- 6:1:1 35 times weekly/ 1 period Public School extended day

Occupational Therapy Individual 3 times weekly 60 minutes Physical Therapy Individual 5 times weekly 60 minutes

Music Therapy Individual 2 times weekly 60 minutes

Group 1 time weekly 60 minutes (Ex G 56) Speech-Language Therapy Individual 5 times weekly 60 minutes

Vision Education Services Individual 3 times weekly 60 minutes Parent Training and Individual/Group 1 time monthly 60 minutes Counseling

1:1 Paraprofessional Individual Daily Throughout the day 1:1 Nurse Individual Daily Throughout the day Hearing Officer‘s Finding of Fact & Decision

Assistive Technology Individual/ 1 time weekly 60 minutes Services Indirect (Ex G 57)

Assistive Technology Devices: AAC Device, AAC Wheelchair Mount

Switches, Switch Mounts, Computer, Computer Switch Interface, Software (list),

Adaptive Seating (list), example: [REDACTED] chair for toileting, Adaptive

Seating, Custom molded wheelchair, hand and foot braces.

(Ex G 57)

Supports for School Personnel on behalf of the Student: 2-person transfer training

Seizure safety training, Assistive technology training, Vision education training,

G/J Tube Training, Allergy safety and awareness training.

(Ex G 57-58)

12 Month School Year (Ex G 58) H 06/20/2023 Ten Day Notice (TDN) 23-24 School Year

Parent provides, via Attorney, appropriate TDN, of: alleged DOE failure to offer the Student a FAPE, for the 23-24 school year; intent to continue Student’s enrollment at the UP; and intent seek DOE funding, for Student 23-24 attendance, at the UP. I 07/07/2023 [REDACTED] Enrollment Contract 23-24 School Year

Student’s 23-24 UP Tuition Contract sets forth Tuition as follows:

- Base Tuition Fees: Base Tuition Fees: Base Tuition Fee for the UP program is

$[REDACTED] for the School Year starting on July 5, 2023 and ending on June 21, 2024. The Base Tuition includes the cost of an individual paraprofessional, and school nurse as well as the academic programming (Ex I

1);

- Supplemental Tuition Fees: The Base Tuition cost does not include the cost of Hearing Officer‘s Finding of Fact & Decision related services, transportation paraprofessional, any individual nursing services or assistive technology devices and equipment. Supplemental Tuition includes the cost of the Student's related services programming such as physical therapy, occupational therapy, speech-language therapy, vision education services, assistive technology services, music therapy, hearing education services and parent counseling and training (Ex I 1-2);

Full Tuition, including Base Tuition and Supplemental Tuition is set as:

$[REDACTED].00. (Ex I 2)

Parent is obligated to payment under the Agreement, via signature. (Ex I 3)

J 07/07/2023 Transportation Agreement 23-24 School Year

Transportation Agreement sets forth a yearly total of $[REDACTED].00, for 218 school days of transportation. This includes accommodations such as air conditioning, wheelchair accessibility and limited travel time. (Ex J 1-2)

Contract includes that services will be billed whether or not Student is actually transported. (Ex J 2)

Parent obligates herself to payment under the terms of the contract, via signature. (Ex J 6)

Contract signature is undated, though it does specify the 23-24 school year. (Ex J 1 & 6)

K 03/28/2022 DOE IEP 22-23 School Year

Student’s 22-23 school year IEP confirms Student history of special education challenges and need for an array of services and supports, covering academics, physical health, and safety.

L 06/06/2019 Medical Forms 19-20 School Year

Confirms Student need for various conditions, such as asthma, medication interventions, allergies, need for G-Tube Feeding, suctioning and necessity of a nurse. Hearing Officer‘s Finding of Fact & Decision

M 08/22/2023 Carolyn Mason Affidavit 23-24 School Year

Student’s mother details Student challenges, and medical conditions, affecting his education. (Ex M 1-2)

Student condition requires a 24 hour a day caregiver, physical and environmental accommodations, and a variety of specific special education needs, such as a “1:1 paraprofessional and a 1:1 nurse to monitor seizure activity and to attend to his medical and academic needs throughout the day.” (Ex M 2)

Parent details components of Student’s UP program, which she believes are required, which include:

- a regimen of related services, delivered in 60-minute sessions, including occupational therapy (OT), physical therapy (PT), speech and language therapy (SL), assistive technology (AT), vision education services (VES), hearing education services (HES), and music therapy

(MT) in order to benefit from special education instruction. Because of the intensive level of services that [Student] requires, it is necessary for [Student] to attend a program which operates on an extended school day.” (Ex M 2-3)

Parent confirms IEP meeting took place, on 04/28/2023, and an IEP was developed. (Ex M 3) As noted above, the IEP meeting actually took place on 05/18/2023. (Ex F 47)

Parent disagrees with the IEP, in part due to a lack of 1:1 nursing services, and lack of an extended school day. (Ex M 3)

Parent states she has not received a School Location Letter for the 23-24 school year. (Ex M 3)

Parent sent a TDN to the DOE. (Ex M 3, Ex H)

Parent believes the Student has made progress, at the UP. (Ex M 4)

Parent is unable to pay the UP Tuition and transportation cost upfront and await reimbursement. (Ex M 4)

N 08/22/2023 [REDACTED] Affidavit 23-24 School Year Hearing Officer‘s Finding of Fact & Decision

Director of Special Education, at the UP, provides Testimony that includes:

- Witness qualifications and experience (Ex N 1-2);

- General characteristics, of the UP, including:

o private and highly specialized special education program o created for children who suffer from acquired brain injuries or brain-based disorders o an extended 12-month school year calendar and offers all services during its extended school day, which runs from 8:30 am to 5:00 pm o interdisciplinary program for school-aged students, many of whom are non-verbal and non-ambulatory o every student at UP requires a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit from the educational program o many students require a 1:1 nurse to attend to the student’s medical needs o UP currently has seven (7) 6:1:1 classes and three (3) 8:1:1 classes over two campuses, one in Manhattan and the other in Brooklyn o can accommodate students aged 5 to 21

o most student’s at UP have a disability classification of Traumatic Brain Injury (TBI) and have management needs that are either intensive or highly intensive and which require a significant degree or high degree of individualized attention and intervention (Ex N 2)

o UP provides each student with an IEP (Ex N 2)

o Offers a wide range of related services (Ex N 2)

- Witness details Student challenges affecting his education, health and safety, including:

o suffers from a brain injury

o diagnosed with seizures, spastic quadriplegia, cerebral palsy, intractable epilepsy, microcephaly, asthma, nystagmus, and Cortical Visual

Impairment (CVI), a term used to describe visual impairment due to a brain injury that causes damage to the part of the brain that processes Hearing Officer‘s Finding of Fact & Decision vision o non-verbal and non-ambulatory o has highly intensive management needs, requiring a high degree of individualized attention and intervention throughout the school day.

(Ex N 3)

- Student services and supports, provided by the UP, for the 23-24 school year include:

o a 6:1:1 class with academic and direct instruction o music therapy o vision therapy o speech therapy o occupational therapy o physical therapy o assistive technology services o hearing education services o 1:1 paraprofessional who helps him remain focused and assists him in responding to directives, participating in instruction and related services, and interacting with peers, and to fully benefit during his 1:1 related services both inside and outside the classroom o 1:1 nurse to monitor seizure activity, monitor asthma signs and symptoms, observe aspiration precautions, monitor his feeding, monitor his allergy plan, provide treatment in any of the aforementioned areas as needed, and to attend to his medical and academic needs throughout the day. Student has severe life-threatening allergies to fish, eggs and latex. He requires a controlled school environment without these allergens in order to maintain his health and safety. (Ex N 4)

- Disagreement with the DOE 23-24 Student recommendations:

“I disagree with the failure of the DOE to recommend a 1:1 school nurse for [Student]. I disagree with [Student’s] placement in a District 75 school. I disagree with the class recommended for [Student]. I disagree with the lack of an extended school day recommendation for Hearing Officer‘s Finding of Fact & Decision

[Student]. I also disagree with the lack of Music Therapy recommendations.” (Ex N 4)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400- 1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are alleged, an administrative officer may find Hearing Officer‘s Finding of Fact & Decision 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 (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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district 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, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 Hearing Officer‘s Finding of Fact & Decision

F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court Hearing Officer‘s Finding of Fact & Decision found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). 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., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR Hearing Officer‘s Finding of Fact & Decision

200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' 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, parents 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 final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise 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 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible Hearing Officer‘s Finding of Fact & Decision scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

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 their removal of 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 a [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 CFR 300.148[d][1]). This statutory provision "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]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2023-2024 School Year The DOE opted not to present a defense to the Parent’s allegations. (T 27)

The district has presented no witnesses in this matter. Although an IEP has been submitted into evidence, for the 23-24 school year (Ex F), it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

The evidence presented regarding the appropriateness of the DOE IEP, is not supportive. Evidence consistently points to failings of the DOE IEP. (Ex F, H, M 3, N 4)

Parent also states she has not received a School Location Letter for the 23-24 school year. (Ex M 3) Hearing Officer‘s Finding of Fact & Decision

Accordingly, I conclude that the district has not met its burden to establish that it offered the Student a FAPE, for the 23-24 school year.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 23-24 school year.

I find the DOE failed to offer the Student a FAPE for the 23-24 school year.

UP Placement for the 23-24 School Year

Testimony and documentary evidence, as reviewed above, support the UP as an appropriate Student placement for the 23-24 school year.

The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.

Evidence sets forth areas of Student special education need, services to address those needs, and notes progress. (Ex A, G, H, I, J, L, M, N)

I find that the UP provides special education services specifically tailored to meet the needs of the Student.

I find UP provides an appropriate education and program for the Student for the 23-24 school year.

TUITION FUNDING 2023-2024 School Year

I find the Parent is entitled to Student’s UP Tuition funding, via the DOE, for the 23-24 school year.

The DOE has denied a FAPE to the Student for the 23-24 school year.

Parent provides appropriate TDN, for the 23-24 school year. (Ex H)

UP Enrollment Contract, for the 23-24 School Year, evidences Tuition as follows:

- Base Tuition Fees: Base Tuition Fees: Base Tuition Fee for the UP program is $[REDACTED] for the School Year starting on July 5, 2023 and ending on June 21, 2024. The Base Tuition includes the cost of an individual paraprofessional, and school nurse as well as the academic programming (Ex I 1);

- Supplemental Tuition Fees: The Base Tuition cost does not include the cost of Hearing Officer‘s Finding of Fact & Decision related services, transportation paraprofessional, any individual nursing services or assistive technology devices and equipment. Supplemental Tuition includes the cost of the Student's related services programming such as physical therapy, occupational therapy, speech-language therapy, vision education services, assistive technology services, music therapy, hearing education services and parent counseling and training (Ex I 1-2);

Full Tuition, including Base Tuition and Supplemental Tuition is set as:

$[REDACTED].00. (Ex I 2)

Parent is obligated to payment under the Agreement, via signature. (Ex I 3)

Parent testifies she is unable to pay the UP tuition based on her limited income. (Ex M 4)

With regard to fashioning equitable relief, one court has addressed whether it is appropriate under the IDEA to order a school district to make retroactive tuition payment directly to a private school where: (1) a student with disabilities has been denied a FAPE; (2) the student has been enrolled in an appropriate private school; and (3) the equities favor an award of the costs of private school tuition; but (4) the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 [S.D.N.Y. 2011]). The court held that "[w]here . . . parents lack the financial resources to 'front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief" (Mr. and Mrs. A., 769

F. Supp. 2d at 428). The Mr. and Mrs. A. Court relied in part on dicta from earlier cases in which similar claims seeking direct retroactive payment to a private non-approved school were asserted (see Connors v. Mills, 34 F. Supp. 2d 795, 805-06 [N.D.N.Y. 1998] [opining that such financial disputes should be resolved within the administrative hearing process]; see also S.W., 646 F. Supp. 2d at 358-60). The Mr. and Mrs. A. Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs (Mr. and Mrs. A., 769 F. Supp.2d at 430).

In this matter the Parents choose to continue Student placement at UP, without any DOE alternative. (Ex M 3)

I find the Parent meets the burden of production and persuasion with respect to whether Hearing Officer‘s Finding of Fact & Decision they have the financial resources to "front" the costs of a unilateral placement and whether they are legally obligated for the student's tuition payments (Application of the Dep't of Educ., 12132; Application of a Student with a Disability, 12-036; Application of a Student with a Disability, 12-004; Application of the Dep't of Educ., 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041).

I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to direct DOE funding of the UP tuition, for the 23-24 school year.

I find the Parent is entitled to direct UP funding as Ordered below.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State 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" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot Hearing Officer‘s Finding of Fact & Decision access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Evidence supports the need for Student to receive special education transportation.

This includes the DOE IEP, and the UP IEP, which set forth Student special education needs, and supports. (Ex F 46 & G 56)

The DOE raises no objection to continuing special education transportation.

I find evidence supports the provision of a special education transportation for the Student for the 23-24 school year.

Transportation Agreement sets forth Parent’s obligation to pay for Student’s transportation.

Transportation Agreement sets forth a yearly total of $[REDACTED].00, for 218 school days of transportation. This includes accommodations such as air conditioning, wheelchair accessibility and limited travel time. (Ex J 1-2)

Contract includes that services will be billed whether or not Student is actually transported. (Ex J 2)

Parent obligates herself to payment under the terms of the contract, via signature. (Ex J 6)

Contract signature is undated, though it does specify the 23-24 school year. (Ex J 1 & 6)

Discussions, on the Record, included the DOE position that it only should be obligated to pay for services actually performed, when Student was transported. (T 49)

The Parent Attorney notes that there are costs associated with scheduling transportation, even if the Student is not transported. (T 49 & 52)

The Contract does not include a per diem rate. (Ex J)

I find it appropriate that the transportation services are only funded when they actually take place. This logically will encourage the Parent and Transportation company to plan for any days when transportation is not necessary. Hearing Officer‘s Finding of Fact & Decision

INDEPENDENT EDUCATIONAL EVALUATIONS

The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]). Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations Hearing Officer‘s Finding of Fact & Decision provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The time period for asserting claims based upon a disagreement with a school district's evaluation can be shorter than the mandatory three-year reevaluation period in some cases (see D.S., 357 F. Supp. 3d at 179).

An IEE must use the same criteria as the public agency's criteria (Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973–79 [5th Cir. 2016]). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area (Letter to Baus, 65 IDELR 81 [OSEP 2015]), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments (D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 [D. Conn. 2019], citing N.D.S. v. Acad. for Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5–*7 [D. Minn. 2018] [explaining that where parents request an IEE to challenge an obsolete evaluation, they are entitled to a due process hearing limited only to whether the evaluation was appropriate at the time it was completed; if parents wish for a publicly funded IEE with respect to their child's current condition, then they must allow the school district to conduct a current reevaluation and then request an IEE if they disagree]).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). In accordance with this burden, the district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parents' requests for IEEs at public expense

Additionally, an IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). IHOs are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]).

A district must conduct an evaluation of a student where the educational or related Hearing Officer‘s Finding of Fact & Decision services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2]). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities (8 NYCRR 200.4[b][3]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

Under 200.5 (g) of the New York regulations and 34 CFR § 300.502 (b) (1) of the federal regulations, if a Parent disagrees with a district’s evaluation or re-evaluation of her child, she has the right to request an IEE at public expense. Upon Parent IEE request the public agency must, without unnecessary delay, either:

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§ 300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria. 34 CFR 300.502(b)(2). 8

NYCRR § 200.5 (g)

Additionally, IEEs matters must be considered in light of recent decision as reviewed below.

Regulations define an IEE as "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question." 34 C.F.R. § 300.502(a)(3)(i) (emphasis omitted). The regulations establish that a parent's right to an IEE at public expense is triggered when the parent "disagrees with an evaluation obtained by the public agency." Id. § 300.502(b)(1) (emphasis omitted). And the regulations provide that Hearing Officer‘s Finding of Fact & Decision

"[e]valuation means procedures used in accordance with §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs." Id. § 300.15. Sections 300.304 through 300.11 of the regulations, in turn, parrot and expand upon the mandatory evaluation conduct and procedures outlined in Section 1414 of the IDEA. See, e.g., id. § 300.304; see also J.A. 789 (hearing officer's conclusion of law that "[a]n evaluation under 34 C.F.R. § 300.304 refers to the processes and procedures used to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, that may assist in determining ... [t]he content of the child's IEP, which includes the use of technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors" (internal quotation marks omitted)).

A school has the right in the first instance to obtain a comprehensive evaluation upon which to structure a student's IEP, and only if the child's parents believe that the evaluation is insufficient can they seek an IEE at public expense for the school's additional consideration. The publicly funded IEE protects parents' ability to contribute and have their voices heard; but this right arises in response to school action, it does not preempt it. Nor does it give parents the first and final word. The school, as a beneficiary of federal funds, has the right and obligation to conduct an evaluation in the first instance and to prove that its evaluation was appropriate. Only when those established procedures fall short does a parent get an IEE at public expense. See Schaffer, 546 U.S. at 60-61.

It is noted that a parent’s DPC may serve as a demand for an IEE. A Parent may file a DPC notice with respect to "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). A sought after IEE may be a proper remedy for disagreement with a District's evaluation. Absent any requirement that the parent express her disagreement with the results of a district evaluation in a specific format, there is no reason why a DPC may not serve the function of expressing the parent's disagreement to the district.

Additionally, the DPC may serve as a basis for an IEE request when the District has failed to evaluate the Student in an area of suspected disability. The District, through a written Hearing Officer‘s Finding of Fact & Decision response, or Resolution Process, can respond with whatever mechanism it has available to dispute the Parent request, or consent to an evaluation of some sort.

When a parent initiates a request for an impartial hearing by filing a DPC notice the IDEA provides for a resolution process that must be followed before a parentally requested hearing can proceed (34 CFR 300.510[a]). The parent cannot unilaterally waive the resolution meeting because the regulation requires both parties to waive a resolution meeting (34 CFR 300.510[a][3]). Accordingly, the District would have up to 30 days to consider and resolve any DPC, including any request for an IEE, before being required to proceed to an impartial hearing to defend its own evaluation, or IEP process which has been undertaken, for a student (see 34 CFR 300.510[b]). During that period, the District could agree to a parent's request for an IEE or seek further information from the parent.

Parent alleges the DOE failed to appropriately evaluate the Student, relative to the 23-24 IEP (Ex F); and ultimately seeks comprehensive evaluation, of the Student. (Ex A 8-9)

Evidence does not indicate any area in which there exists a lack of information upon which to develop an appropriate Student program.

The UP Report does include a notation that: “Upon return to in person services, [Student] will undergo reevaluation to obtain the most accurate and up-to-date information regarding his functioning and ability to utilize equipment, positions, etc. as per doctor’s clearances.” (Ex G 1)

In this case the DOE does not present any disagreement to the Parent request for evaluations.

The DOE does seek opportunity to conduct the requested evaluation moving forward.

Specifically, Parent seeks an Order:

- directing DOE to fund an Independent Educational Evaluation (IEE) in the form of an independent conducted by a qualified provider of Parent’s choosing at a reasonable market rate. (Ex A 8); and

- An Order directing DOE to conduct all necessary evaluations of [REDACTED]

within thirty (30) days. (Ex A 9)

In this, considering the evidence above, I find it appropriate to allow the DOE the opportunity to evaluate the Student is all areas of suspected disability. Hearing Officer‘s Finding of Fact & Decision

If the DOE fails to evaluate the Student, or provides evaluations the Parent feels are inadequate, the Parent can respond at that time. Specifically, the Parent can challenge any completed evaluation, and/or any issue with an evaluation that was not conducted, and should have been to properly evaluate the Student in all areas of suspected disability.

PROGRAM AND PLACEMENT

When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).

Parent DPC includes seeking:

- An Order directing DOE to reconvene a new IEP meeting within sixty (60) days to address changes if necessary. (Ex A 8)

In this case no specific evidence was set forth which would support an Order calling for a reconvene of the Committee on Special Education. (CSE)

This relief is not found to be appropriate. Hearing Officer‘s Finding of Fact & Decision

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2023- 2024 school year.

2. The DOE shall evaluate the Student in all areas of suspected disability, within 90 days of the date of this Order. This shall include a neuropsychological evaluation.

3. The [REDACTED] (UP) provides Student with an appropriate program and placement, for the 23-24 school year, via recommended services and supports, provided and/or facilitated by [REDACTED] (UP) which include:

o Transportation:

Adult Supervision – NURSE

Vehicle and/or Equipment needs – AC

Vehicle and/or Equipment needs – LIFT-BUS/WHEELCHAIR RAMP

Vehicle and/or Equipment needs –WHEELCHAIR (Large size)

Vehicle and/or Equipment needs – Oxygen on bus

LIMITED TRAVEL TIME 90 MINUTES.

o 12-Month Program

o Occupational Therapy

o Physical Therapy

o Music Therapy

o Speech-Language Therapy

o Vision Education Services

o Parent Training

o Counseling

o 1:1 Paraprofessional

o 1:1 Nurse

o Assistive Technology Services

o Assistive Technology Devices:

AAC Device, AAC Wheelchair Mount Switches, Switch Mounts, Hearing Officer‘s Finding of Fact & Decision

Computer, Computer Switch Interface, Software (list), Adaptive Seating for toileting, Adaptive Seating, Custom molded wheelchair, hand and foot braces.

o Supports for School Personnel on behalf of the Student:

2-person transfer training, Seizure safety training, Assistive technology training, Vision education training, G/J Tube Training, Allergy safety and awareness training.

4. The DOE shall directly fund Tuition and costs related to Student attendance, at [REDACTED] (UP), for the 12 month, 23-24 school year, as follows:

$[REDACTED].

This amount includes:

Base Tuition Fees: $[REDACTED] for the School Year starting on July 5, 2023 and ending on June 21, 2024. The Base Tuition includes the cost of an individual paraprofessional, and school nurse as well as the academic programming; and

Supplemental Tuition Fees: Includes the cost of the Student's related services programming such as physical therapy, occupational therapy, speech-language therapy, vision education services, assistive technology services, music therapy, hearing education services and parent counseling and training.

5. The DOE shall fund Student transportation to and from [REDACTED] (UP) for the 23-

24 school year, for days Student is transported to and from [REDACTED] (UP).

Funding to contracted provider, [REDACTED], LLC, a New York State limited liability corporation, as follows:

o Up to Contracted amount of $[REDACTED].00, for 218 school days of transportation. ($[REDACTED] per day) This includes accommodations such as air conditioning, wheelchair accessibility and limited travel time. Hearing Officer‘s Finding of Fact & Decision

6. The DOE shall provide Parent with any documents or forms necessary to facilitate payment, and services, under this Order, within ten days of the date of this Order.

7. This decision is subject to appeal and review by the State Review Officer. DATED: September 8, 2023

DANIEL AJELLO

DANIEL AJELLO

Impartial Hearing Officer Hearing Officer‘s Finding of Fact & Decision

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.