Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: [REDACTED]

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Renée J. Adonis

Date of Filing: July 5, 2023

Hearing Requested by: [REDACTED] (Parent)

Dates of Hearing: October 4, 2023

Record Close Date: November 16, 2023

Date of Decision: November 16, 2023

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (DPC) on or about July 5, 2023. In the DPC, the Parent alleges that the Department of Education (District or DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023/2024 school year on procedural and substantive grounds. See Exhibit A. 1. By way of relief, the Parent seeks (1) an award for the costs of full tuition, “transportation with limited time travel, paraprofessional, air conditioning, a lift bus, and regular-sized wheelchair” for the Student’s attendance during the 2023/2024 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities; (2) that the DOE’s Committee on Special Education (CSE) reconvene a new meeting to address changes if necessary; and (3) an order directing the DOE to fund an independent neuropsychological evaluation, at that provider’s customary rate. Id. Furthermore, Parents allege that the equities support their claim for direct funding/prospective funding for the school year at issue. Id. Considering the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student a FAPE for the 2023/2024 school year, b) the Private School offers Student an educational program with specially designed instruction sufficient to meet Student’s needs, and c) the equities do not fully support the Parents’ requested relief warranting reductions in the requested relief for tuition and denial of relief for other claims.

PROCEDURAL HISTORY

I was appointed Impartial Hearing Officer (IHO) for this case on August 11, 2023. On August 15, 2023, the parties appeared for a Pre-hearing Conference (PHC). At the PHC the Parent sought the relief noted in the DPC as outlined above. The DOE Representative (DOE Rep.) indicated that he was recently assigned to the matter and was still investigating but maintained that the District would be able to defend prong I under the Burlington/Carter standard. A Status Conference was scheduled for September 7, 2023 to give the District time to complete its investigation and explore possible resolution of the case without a hearing. At the Status Conference, the District did not appear and at Parent’s request, the due process hearing was scheduled.

On October 4, 2023, both parties appeared for a virtual due process hearing. The DOE Rep. submitted Exhibits 1-10 for admission into the record, and the Parent objected to Exhibits 7 and

10. Exhibits 1-10 were admitted into evidence over the objection of the Parent. DOE presented no witness testimony. The Parent submitted Exhibits A-I for admission into the record with no objection from the DOE.^[1] Included in the Parents’ evidence was an affidavit from the Deputy Director of Special Education at Private School (Deputy Director) ^[2]. See Tr. 30-41. The DOE cross-examined the Deputy Director and made opening and closing arguments. See Tr. 27. Regarding the three prongs under the Burlington/Carter standard, the DOE Rep. indicated that the District was relying on the documentary evidence submitted to meet its prong I burden, that it was holding the Parents to their prong II burden and that equities did not favor the parent. See Tr. 44 and 47. A list of exhibits admitted into evidence is attached. Although only portions of the evidence are referenced in this decision, all the testimony and documents were reviewed in full.

The Parties made a joint request to extend the compliance date, which was granted. The compliance date for issuing a decision on this matter is currently November 17, 2023.

FINDINGS OF FACT AND DECISION

I make the following findings of fact and determinations.

The Student is a [REDACTED]year-old who is classified by the DOE’s CSE as a student with a Traumatic Brain Injury. The Student’s classification and entitlement to special education services are not in dispute. The Student was unilaterally placed and has been attending the Private School for the 2023/2024 school year. See DOE 1. 1 and Exhibit A. 1.

On May 11, 2023, the CSE convened to develop an Individual Education Plan (IEP) for the Student. The IEP incorporated much of the content from the iBrain Report and Educational Plan (Education Plan). See DOE Exhibits 1. 1 and 9. The Student is diagnosed with retinopathy of prematurity, bilateral retinal detachment, cerebral palsy, spastic diplegia, and periventricular leukomalacia. The IEP notes that the Student has significant deficits in cognitive, adaptive, communicative, and physical development which require the Student to participate in an intensive environment of a classroom with a high adult-to-child ratio. See DOE Exhibit 1. 2, 34.

An Assistive Technology Formal Assessment was conducted of the Student. The Dynamic AAC Goals Grid-2 (DAAG-2) was used to assess the Student’s ability to use assistive technology (AT) for the purpose of communication. Based on the DAAG-2 subtest “expression,” the Student presents as a level 2, emergent transitional communicator with scattered skills in Level 3 Context Dependent. The Student communicates most successfully using facial expression, body language, gestures, and or behavior (either socially appropriate or challenging). The Student may also indicate acceptance with a smile or rejection by vocalizing or pushing items away. As such, sensory behavior is very important for calming (for instance rocking mouthing objects), and for determining likes or dislikes. The DAAG-2 subtest on “social interaction” reveals that the Student is a level 3, communicator, in that she reacts to familiar people and/or motivating activities. The Student shows a clear interest in the voices of her paraprofessional and providers and responds to close physical interaction by smiling or reaching her hand out when she hears a familiar voice. See DOE Exhibit 1. 6.

The Management Needs section of the IEP outlines extensive support and accommodations to address the Student's needs. Specifically, the Student requires among other supports, an individual paraprofessional to assist with academic achievement, physical development (including mobility and transfers, material management (including AT), health management, activities of daily living (ADL); access to a high-tech speech-generating device (SGD) with software for visual impairment; and physical, occupational, vision and speech-language therapy services. See DOE Exhibit 1. 29-34.

The CSE recommended an 8:1+1 with considerations for visual impairment to be provided in English in a Special Class in a District 75 school 35 times per week; adapted Physical Education three times per week; Occupational Therapy (OT), Physical Therapy (PT), and Speech-Language Therapy (SLT) each for five individual 60-minute sessions five times per week to be provided in English; Parent Counseling and Training (PCAT) once monthly for 60 minutes; and vision education services three individual 60-minute sessions per week. The CSE also recommended an individual paraprofessional for health, ambulation, safety, and feeding on a daily full-time basis; and Braille Embosser and individual AT services once weekly for 60 minutes. See Exhibit DOE-1. 59-60. Finally, the CSE also recommended special transportation for the Student which included:

Transportation from the closest safe curb location to school.

Adult Supervision-1:1 Paraprofessional

Vehicle and/or Equipment needs - Lift Bus

Vehicle and/or Equipment needs - Student uses wheelchair (Regular Size)

Other Accommodations - Limited Travel Time

Other Accommodations - Climate Control

See DOE Exhibit 1. 65.

There is no evidence in the record that the DOE provided the Parent with a Prior Written Notice (PWN) or School Location Letter (SLL).

On June 20, 2023, Parents, through counsel, wrote to the CSE expressing their disagreement with and rejection of the recommended program and placement. The Parent notified the DOE that the Parent was not provided with a PWN or SLL for the 2023/2024 extended school year. As such the Parent notified the CSE of the Parent’s intent to unilaterally place the Student at the Private School and the Student began attending Private School. See Exhibit D.

Burden

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. See NYS Educ. Law § 4404(1)(c).

Prong I

The IDEA provides that children with disabilities are entitled to a FAPE. See 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). See 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. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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.” See Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. The DOE Rep. indicated on the record that the District was relying on its documentary evidence to establish that FAPE was provided. See Tr. 45. The Parent argues that although the DOE’s IEP incorporated many of the recommendations of the Private School Education Plan (Education Plan), it is not appropriate as (1) the IEP failed to recommend music therapy facilitated by a board-certified music therapist and that without a board-certified music therapist, the music therapy would be recreational rather than therapeutic; (2) there is concern on whether the District 75 school program can address the Student’s intensive management needs; (3) the CSE failed to consider an NYSED approved nonpublic school placement; and (4) the DOE failed to provide an SLL letter prior to the start of the 2023/2024 extended school year.

Here, while the DOE documentary evidence establishes that the IEP appropriately describes the Student and is meaningfully calculated to confer an educational benefit to the Student, the DOE failed to provide a FAPE as it did not provide an SLL advising the Parent where the Student would be placed at the beginning of the school year. The Parent correctly highlights that the DOE adopted all the Private School education recommendations except the provision of Music Therapy by a certified Music Therapist. The IEP notes that while music can be used throughout the school day as an instructional tool, it was not recommended in the IEP. See DOE

1. 15. By contrast, the Education Plan recommends Music Therapy for two 60-minute individual sessions and one 60-minute group session. The Music Therapy is intended to assist the Student with self-regulation, increased communication skills, and independence to complete the activities presented. The Education plan noted that the Student is “innately very musical and is highly motivated by music.” See DOE 1. 58. Moreover, the Deputy Director testified that the Student has benefited from Music Therapy, and it has served to help the Student regulate her emotions and as a motivator as the Student loves to sing and dance. See Tr. 63. However, absent from the Education Plan and the Deputy Director’s testimony is an explanation as to specifically what specialized techniques or methodologies are used by the certified Music Therapist as differentiated from the use of music as an instructional tool throughout the Student’s school day. As such, I am unpersuaded by the Parent’s argument that the absence of Music Therapy provided by a certified Music Therapist renders the IEP inappropriate. Moreover, the IEP outlines the needs and goals of the Student with sufficient detail and recommends an appropriate program, related services, AT, full-time individual paraprofessional, and specialized transportation to meet the Student’s needs. As such, I find that the IEP is reasonably calculated to meet the Student’s needs and allow the Student to make meaningful progress.

The record indicates that the District failed to provide the Parent with the SLL prior to the start of the 2023/2024 extended school year. Moreover, the record indicates that the District to date has not provided the Parent with an SLL, even though the Parent wrote to the DOE prior to the start of the school year to inform them of this fact. See Exhibit D. Although the federal and State regulations only mandate that an appropriate IEP be created prior to the start of the school year ^[3], implicit in a district’s obligation to implement an IEP is the requirement that prior to or contemporaneous with the date of initiation of services under an IEP, a district must provide parents with reasonable notice of the bricks and mortar location of the special education program and related services in a student's IEP. See SRO 21-077 quoting T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016). Moreover, in A ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. Feb. 1, 2011) the court also held that the school district’s failure to offer a student a placement was a denial of FAPE. Therefore, I hold that the District failed to provide the Student with a FAPE for the 2023/2024 school year as it did not provide the Student with notification of the brick-and-mortar school that would be implementing the Student’s IEP prior to the start of the school year

Prong II

A private school placement must be "proper under the Act."^[4] This means that the private school must offer an educational program that meets the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." See Gagliardo, 489 F.3d at 112. "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.'" See Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. See 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." See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. See 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

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 benefits, 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. See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The Deputy Director testified via affidavit and live testimony on cross-examination, that the Private School is a highly specialized special education program servicing children who suffer from acquired brain injuries or brain-based disorders. The Private School is an interdisciplinary program for school-age students, many of whom are nonverbal and non-ambulatory with each student requiring an individual power professional to assist with ADLs while having access to and benefiting from the education program. The Private School currently has seven classes with a teacher-student ratio of 6:1:1 and three classes with a teacher-student ratio of 8:1:1 over two campuses with students aged five to twenty-one years with disability classifications of traumatic brain injury. Students receive an IEP aimed at improving functioning skills appropriate to their cognitive, physical, and developmental levels through a collaborative and multidisciplinary approach that incorporates the best practices from medical, clinical, and educational fields. The Private School utilizes direct instruction, cognitive strategies, and compensatory education (using diagnostic prescriptive approaches, behavioral management, physical rehabilitation, therapeutic intervention, social interaction, and transition services. In addition, the Private School offers its students related services including OT, PT, SLT, visual education, assistive technology services, music therapy, PCAT, and hearing education services in 60-minute sessions. See Exhibit H. 1-3.

During the 2023/2024 school year, the Student is placed in a class with an 8:1:1 teacherstudent ratio and is also provided with the following related services: (1) OT five times per week for 60 minutes; (2) PT five times per week for 60 minutes; (3) SLT five times per week for 60 minutes; (4) vision education services three times per week for 60 minutes; (5) music therapy two times per week for 60 minutes (individual), and one time per week for 60 minutes (group); (6) hearing education services four times per week for 60 minutes; and (7) AT once per week for 60 minutes. The Student was also provided with a 1:1 paraprofessional throughout the day. See Exhibit H 4-5 and DOE 9. 44 - 65.

The Education Plan also recommended that the Student receive 30 minutes of individual academic instruction daily and that the Student participate in small group activities throughout the day, including math, science, literacy, art, and music. These activities are intended to “incorporate aspects of direct instruction and aim to integrate a wider range of concepts along with the skills targeted in individual goals.” The Education Plan notes that the Student’s paraprofessional would support the Student during these activities and therapists would push into these sessions to ensure that the student is able to participate in them with her classmates and that the Student is carrying skills over into the classroom and generalizing them across a range of activity. See Exhibit DOE-

9. 2-3.

Based on the documentary evidence submitted, I find that the Parents have met their burden in proving that Private School offered an educational program that met the Student’s needs under Prong II of the Burlington/Carter standard. The record shows that the Student has made progress because of his placement with the Private School. The Student’s Education Plan notes that the Student has shown a lot of improvement following one-step instructions with few queues and at times can answer “Wh” questions about a story or daily activity using her AAC device. The Student has also shown significant progress since starting at the private school in her ability to remain regulated and participate during sessions with less support and is able to join her class for activities and be comfortable interacting with her peers. See Exhibit DOE-9. 3. Moreover, the Student’s Quarterly Progress Report for April 2023 notes that the Student achieved progress by meeting her goals in AT, Hearing: Communication, and Hearing Communication/Comprehension whereas the Student was not previously reaching those goals. See Exhibit DOE-8. 5-9 and 64-68.

In reviewing all the evidence presented by the Parent, the weight of the evidence establishes that the Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." See Frank G., 459 F.3d at 364. The evidence in the record shows that the Student is benefiting and progressing under the small group setting offered at the Private School. See Exhibits H, DOE-8, and DOE-9.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here a review of the record shows that the equities do not fully favor the Parent. The Parent did provide notice to the District regarding the unilateral placement of the Student. In a letter dated June 20, 2023, the Parents detailed specific concerns and gave the DOE notice of their intention to unilaterally place the Student at the Private School. See Exhibit D.

However, I find the costs of tuition, associated with the Private School as outlined by the Parent, to be highly unreasonable. Further, I find the evidence of the Student’s attendance lacking despite repeated inquiries by the IHO to complete the record. See Exhibits E and F. The Parent submitted an affidavit from the Deputy Director indicating that the Student attended the Private School since April 2022. See Exhibit H. 4. The District submitted an attendance record that the Deputy Director identified as the Student’s actual attendance record. See Exhibit DOE-5 and TR.

66. The attendance record shows that the Student was “present” for 19 days in July 2023, 19 days in August 2023, and four days in September 2023. The attendance record also noted that “y” under present can mean present in-person, excused absence, or home services. The Deputy Director testified that the Student could be present via one of the following ways:

(1) in-person;

(2) telehealth, where the Student is home with a paraprofessional and the providers would provide services via telehealth/remotely;

(3) through the Home Exercise Program (HEP) where the teacher/provider sends home “exercises or activities that the Parent can conduct with the Student at home.” See Tr. 67. During the hearing I sought clarification from the Deputy Director as to the number of days that the Student was receiving her education physically at the Private School, at home via telehealth, or excused absence/HEP. However, the Deputy Director indicated that he would not be able to provide that information at the time of the hearing but indicated, “I would be able to find that out, yes” when asked if the information could be provided later. See Tr. 71-72. At the conclusion of the hearing, I ordered the Parent to provide clarification of the Student’s inperson attendance records by October 13, 2023 even though Parent Attorney 1 indicated he would only need until “the end of the week” which was October 6th, 2023. The Parent failed to respond by October 13, 2023 as required.^[5] See Tr. 89 and

91. I then provided the Parent with another opportunity to provide the requested information and ordered a response by October 27, 2023. The Parent Attorney 2 responded, after the deadline in my order, on November 7, 2023, stating that “no such documentation exists.” See IHO Exhibit II.

I find the representation of Parent Attorney 2 that no documentation regarding the Student’s attendance at the Private School exists to be in contradiction to the testimony of the Deputy Director. In addition, it is peculiar that the Deputy Director, who has been employed with the Private School since February 2023, did not know that the Private School does not maintain attendance records as this would be a significant and unusual policy. Moreover, I find it generally incredulous that Parent Attorney 2 is representing to this tribunal that a school does not possess attendance records, especially given the practice of providing services via telehealth and HEP/excused absence. This further calls into question the entirety of the attendance records presented by the District and identified by the Parent’s witness the Deputy Director. I take a negative inference against the Parent for first ignoring IHO orders and then submitting an incredulous and late response.

Further, I find that a reduction in the tuition award in this case is appropriate. The Private School costs fall into two categories (1) Base Tuition at a cost of $190,000.00 and (2) Supplementary Tuition fees at a cost of $125,700.00. According to the Private School enrollment contract, “the base tuition includes the cost of an individual paraprofessional, and school nurse as well as academic programming…” and does not include the transportation paraprofessional or AT devices and equipment. See Exhibit E.1. The supplementary 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...” See Exhibit E. 1-2. The Education Plan notes that the Student is recommended to receive 30 minutes of individual academic instruction and group sessions throughout the day. The Private School’s schedule noted the Student’s 30-minute academic program but failed to indicate when or if the Student received group sessions.

The Deputy Director testified that the Student receives group sessions during what is noted as “Morning Sessions” on the school schedule which contradicted his previous testimony that “Morning Sessions” were for “social skills,” “interacting with peers,” working on their “greetings, being able to communicate with their devices.” He also testified that teachers or teacher assistants push into a session conducted by a service provider. This testimony also contradicted the Education Plan which states that the Student: participates in small group activities throughout the day, including math, science, literacy, art and music…In addition, therapists push into these sessions, to ensure [the Student] is able to participate in them with her classmates and that she is carrying skills over into the classroom and generalizing them across a range of activities.

In sum, the record is devoid of evidence of any group activities provided to the Student and I am unpersuaded by the Deputy Director’s testimony in this regard and give that portion of his testimony no weight. Furthermore, the Private School’s program places little importance on the academic program and focuses instead on the related services needed for the Student as academics account for a small percentage of the Student’s schedule. As a result, I find that it is unreasonable and inappropriate to charge $190,000.00 for 2.5 hours of academic classroom instruction per week, a paraprofessional, and access to a “school nurse” and the related services which represent the majority of the Student’s program are included under separate charges.

Moreover, the evidence shows that the Student can receive services in person or via Telehealth or HEP where the Parent conducts activities or exercises. I find the HEP services akin to homework, which while valuable to students, cannot be substituted for qualified teacher/provider instruction. It is of particular concern to me that the record is unclear how many of the days where the Student was marked as “present” were attributed to the HEP program or Telehealth and that HEP/excused absences count towards the Student’s attendance. Further, given the Parent’s lack of candor and failure to provide this information after repeated requests and orders, I take a negative inference in this regard as well. As such, this further persuades me of the inappropriate and unreasonable fee being charged by the Private School for its base tuition and I find that a reduction of the base tuition cost of 50% is warranted for the reasons outlined above.

The record shows that the Student’s schedule is primarily focused on providing the Student with related services. In addition, the quarterly progress reports corroborate the Education Program’s assertion that the Student is receiving these services and experiencing some progress. Therefore, my concern regarding the Student’s attendance and receipt of services is less than my concern regarding the base tuition. As such, I find that no reduction is necessary for the cost of supplementary tuition fees as it amounts to the majority of the Student’s Schedule.

Transportation

The IDEA mandates that a school district provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” See Donald B., 117 F.3d at 1375 (internal citations omitted). 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.” See Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww].

Here the Parent is seeking direct payment or prospective funding for transportation with limited time travel, paraprofessional, air conditioning, a lift bus; and a regular-sized wheelchair. I find that the funding for such transportation would be inappropriate for the reasons described below. It is undisputed that the Student requires the transportation as requested by the Parent since the May 11, 2023 IEP recommends that the Student requires the same transportation as described by the Parent. The Parent requests direct and prospective payments in the amount of $192,930.00 for the 2023/2024 extended school year based upon a contract between the Parent and Transportation Provider. See Exhibit F. The contract is undated and signed electronically without any digital stamp or notary stamp confirming who signed the document and when. In addition, the signature does not match the signature of the Parent on the Private School Enrollment Contract. See Exhibit E. I will note that the Parent’s signature on other documents in evidence matches the Parent’s signature on the Private School Enrollment Contract. See Exhibit 2. 3-4, 11-12. The Parent did not testify at the hearing^[6] and was therefore unable to authenticate the document. No other evidence was submitted to corroborate the validity transportation contract or that the Parent signed the contract. As such, I do not find the document reliable or credible without authentication, corroboration from other documents in evidence, digital signature stamp, or signature notarization. While the rules of evidence are relaxed in administrative proceedings, and relevant documents may be admitted without full adherence to the formal rules of evidence, it is within the IHO's discretion to determine the weight and credibility given to evidence. Here, I find that no weight should be given to this document as I do not find the document reliable or credible for the reasons discussed above.

The District also introduced evidence that members of the May 11, 2023 IEP team from the CSE and the Private School were in communication regarding transportation. See Exhibit DOE-7. The attendance sheet for the May 11, 2023 IEP meeting shows the District Representative and Related Service Provider/Special Education Teacher and the Private School Director of Special Education each attended the IEP meeting. See Exhibit DOE-1. 69-70. The record shows that the District Representative emailed the Private School Director of Special Education on May 31, 2023, to inform her that the DOE was developing routes and establishing transportation for the extended school year students and inquired if iBrain Students were seeking transportation services from the DOE. The District Representative then followed up again on June 27, 2023 regarding her previous email and received a response from the Private School Director of Special Education stating, “I am not aware of any [Private School] students who will be seeking transportation through the DOE.” The District Related Service Provider was also copied on the email correspondence. See Exhibit DOE-7. 1-3. I find this document credible, it contains the full names, titles, email addresses, and signature boxes of each sender and recipient. Moreover, the identity of the personnel involved in the email is corroborated by the IEP attendance sheet.

Here the evidence shows that the District recommended that the Student receive specialized transportation, a member of the CSE team reached out to the Private School to provide the required transportation and was told by the Private School Director of Special Education, who attended the IEP meeting with the Parent, that transportation services were not required by any Private School Student. The record is clear that the District tried to fulfill its obligation but was told that the transportation services were not required. The Parent’s only evidence of transportation service is a contract which is not credible. Moreover, the record is also unclear as to the need for transportation as it is unclear if or when the Student received services in person at the School, thus requiring transportation. The Deputy Director made clear that services could be provided remotely and while the progress reports substantiate that the Student is receiving services and experiencing some progress, they do not expound on whether the services are being provided remotely or in person. As such, there is not sufficient, reliable, and credible evidence to suggest that the Parent contracted with the Transportation Provider, or that the Student was transported to the Private School to receive services. Further, the evidence shows that the District tried to provide the required transportation services and they were rejected Private School. Therefore, the Parent’s claim for direct funding of $192,930.00 to the Transportation Provider is hereby DENIED and dismissed with prejudice.

However, the District is ordered to provide transportation to the Student to the extent needed as outlined in the IEP and Education Plan to the extent that the Student requires such transportation from home to school to receive the special education services outlined in the Education Plan in person at the Private School.

Independent Education Evaluation

The Parent also requests a neuropsychological evaluation be conducted at public expense. The Parent argues that they are entitled to a neuropsychological evaluation since the District failed to appropriately evaluate the Student by failing to adopt the Private School’s recommendation for Music Therapy and failing to conduct appropriate testing of the Student’s cognitive abilities considering her complex diagnosis. See Exhibit A. 4.

Here the Parent has not provided any evidence or testimony that they disagreed with the District evaluation. The Parent raises its disagreement with the District’s failure to appropriately evaluate the Student for the first time in the DPC.

The IDEA seeks to ensure that all children with disabilities have available to them a free appropriate public education. See 20 U.S.C.S. § 1400(d)(1)(A). Consequently, IDEA establishes a process by which school districts and parents collaborate to develop individualized education programs for students with disabilities. As part of this process, school districts evaluate children to assess any disabilities and determine their educational needs. See 20 U.S.C.S. § 1414(a)(1)(C), (d)(1), and (d)(3)(A)(iii). The IDEA and State and federal regulations allow a parent of a child with a disability to request an IEE at public expense if the parent disagrees with a school district’s evaluation. See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).

When a parent disagrees with a school district’s evaluation and 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. See 34 C.F.R. § 300.502(b)(2)(i) -(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).

SROs have expressed reservations where the initial request for IEEs is noted in the DPC and held that such a request is not the process contemplated by the IDEA and its implementing regulations (Application of the Dep't of Educ., Appeal No. 23-034; Application of a Student with a Disability, Appeal No. 22-150). See SRO 23-157, 22.

In this action, the District conducted a social evaluation and a Vineland-3 Assessment while also relying on the evaluations and assessments conducted by the Private school and was able to recommend substantially the same program as the Private School with the exclusion of Music Therapy by a certified Music Therapist. See Exhibit DOE-1, DOE-3, and DOE-4. For reasons outlined earlier in this decision, I am not persuaded that Music Therapy is necessary to provide the Student with a FAPE. In addition, there is no evidence in the record to note that the Parent gave a notice of disagreement with the District’s evaluation or requested an IEE as required by the regulations. The Parent only expressed disagreement with the District’s evaluation and requested IEEs in the DPC. Therefore, since the Parent failed to express disagreement and request an IEE prior to the DPC, I find that pursuant to 8 NYCRR § 200.5(g)(1)(iv) the Parent is not entitled to an IEE at public expense.

Finally, I decline to exercise my broad authority to order the requested evaluation at the District's expense as the record does not indicate that the neuropsychological evaluation is necessary to craft an appropriate educational program for the Student or that the assessments available to the IEP team were insufficient to render a recommendation. As such, Parent’s request for the District to fund a neuropsychological evaluation is DENIED with prejudice.

Other Requested Relief

Finally, I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

(1) Parents’ claim for tuition reimbursement and funding for the Student’s unilateral placement at the Private School is GRANTED for the 2023/2024 school year to the following extent:

(a) The District shall directly fund the Student’s tuition at the Private School in an amount not to exceed $95,000.00;

(b) The District shall directly fund the Student’s supplemental tuition fee at the Private School in an amount not to exceed $125,700.00;

(2) The District shall pay to the Private School tuition funds, totaling $220,700.00 within 35 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent, as outlined in item 1 (a) and

(b) of this order, to the Private School for the Student’s attendance at the Private School for the 2023/2024 school year; and

(3) The District shall provide transportation with limited time travel, paraprofessional, air conditioning, a lift bus; and a regular-sized wheelchair for the remainder of the 2023/2024 school year as needed by the Student to receive in-person special education services.

Dated: November 16, 2023

0---

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education 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.

DISTRICT EVIDENCE

EXHIBIT DESCRIPTION DATE # OF PAGES

1. IEP 05.11.23 70 pages DOE

2. Nursing Documents 08.04.23 13 pages DOE

3. Vineland-3 04.11.22 21 pages DOE

4. Social History Update 04.11.22 4 pages DOE

5. Attendance Record 09.14.23 1 page DOE

6. Class Schedule 07.25.23 1 page DOE

7. Email Chain re Transportation 06.27.23 3 pages DOE

8. Progress Reports (2022-2023) 04.21.23 92 pages DOE

9. Private School Report and Educational Plan 05.11.23 65 pages DOE

10. Preschool/School March Supportive Health Services Program (SSHSP) - Medicaid-in-Education - Medicaid Provider Policy and Billing Handbook (update 9) Available at: https://www.oms.nysed.gov/medicaid/handb ook/ sshsp_handbook_9_march_21_2018_final.pd f 2018 84 pages DOE

PARENT EVIDENCE

EXHIBIT DATE DESCRIPTION # OF PAGES

A. Due Process Complaint Omitted as a B duplicate of DOE-1 Omitted as a C duplicate of DOE-9 Ten Day Notice 07/05/2023 9 pages

D. 2023-24 School Year Private School Enrollment 06/20/2023 2 pages

E. Contract 2023-24 School Year Transportation Agreement 07/01/2023 6 pages

F. 2023-24 School Year Withdrawn G [REDACTED]Affidavit 07/01/2023 6 pages

H. 2023-24 School Year Eye Report and 09/27/2023 5 pages

I. Recommendation 2023-2024 08/29/2023 1 page

IHO EXHIBITS

EXHIBIT DESCRIPTION DATE # OF PAGES

PARENT

I. Attorney 2 and IHO email re: order for 10/13/2023 1 page

II. additional info on attendance dates Various 3 pages

Footnotes

[1] Parent’s Exhibits B and C were excluded from evidence as it was a duplicate of DOE Exhibits 1 and 9. See Tr. 42.

[2] Parent submitted an unsigned affidavit from the Student’s father as Exhibit G but withdrew the exhibit at the due process hearing. See Tr. 43.

[3] See K.Y. ex rel. T.Y. v. New York City Dept. of Educ., 584 F.3d 412, 419 (2d Cir. 2009) [finding that "the requirement that an IEP specify a 'location' does not mean that the IEP must specify a specific school site"].

[4] See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).

[5] Parent Attorney 1 did respond October 13, 2023 to my request that he provide also list of citations. See Tr. 89 and IHO Exhibit I.

[6] An unsigned Parent Affidavit was submitted in the Parent’s disclosure and Parent was slated to testify. However, at the merits hearing the Parent withdrew the Parent’s affidavit and advised that the Parent would not be testifying.