Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No. 251058

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parent

Private School: REDACTED

Hearing Dates September 12, 2023

September 29, 2023

October 17, 2023

October 25, 2023

Record Close Date: December 18, 2023

Hearing Officer: REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED, LAW CLERK

REDACTED, ESQ. ATTORNEY

REDACTED, LAW CLERK

REDACTED, DIRECTOR OF SPECIAL ED, REDACTED

REDACTED, PARENT

REDACTED, REDACTED

For the Department of Education:

REDACTED, ESQ., ATTORNEY

REDACTED, SPECIAL EDUCATION COORDINATOR, REDACTED

REDACTED, DEPARTMENT OF EDUCATION SCHOOL PSYCHOLOGOIST

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about July 6, 2023, regarding the 2023/24 school year. (Ex. A). The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to recommend an appropriate program and placement. (Id.). The Parent has requested direct tuition funding and other costs for their unilateral placement of the Student at the Private School.

BACKGROUND AND POSITIONS OF THE PARTIES

I was appointed as impartial hearing officer (“IHO”) on July 12, 2023. A Pre-hearing conference was held on August 21, 2023, followed by a pendency hearing on September 7, 2023. A hearing on the merits convened on September 29, 2023. On said date the Parent moved for partial summary judgement (Ex. i). The Parent’s application was denied on October 17, 2023. The hearing on the merits reconvened on October 17, and concluded on October 25, 2023. Both parties submitted closing briefs on November 17, 2023.

The Parent unilaterally placed the Student at the Private School for the 2023/24 school year. (Ex. 1). The Parent now seeks direct tuition funding. (Id.) The Parent asserts that the District failed to offer the Student a free and appropriate program and placement for the 2023/24 school year, thus failed to offer the Student a free appropriate public education (“FAPE”). The Parent further asserts that the Private School placement is appropriate and that equitable factors support the tuition claim.

The District asserts that it provided the Student FAPE for the 2023/24 school year and that the Student’s Private School is not an appropriate placement and that the equities fail to support the Parent. The District offered various documents into evidence including the Student’s IEP, progress reports and an attendance record from the Private School. Evidence further included a subpoena response from the Private School, and testimony from the special education coordinator at the recommended public school and the school psychologist who participated at the Student’s IEP meeting. (A complete list of evidence is attached to this Order).

To support her claim for tuition reimbursement the Parent submitted a documentary evidence package that included an IEP, ten-day notice, an enrollment contract, transportation and nursing agreement, affidavit testimony from the Parent, and the Director of Special Education at the Private School.

All witnesses at the hearing were cross examined by opposing counsel.

FINDINGS OF FACT AND DECISION

The Student is a REDACTED-year-old who is classified by the CSE as a student with a Learning Disability (Ex. A). His classification and eligibility for special education supports and services is not in dispute. (Ex. 8). The Student suffers from a brain injury and relies upon a REDACTED, experiences REDACTED, and has severe delays in his motor functioning. (Exs. C, 8). The Student presents with impaired REDACTED and REDACTED and sensitivity REDACTED. As a result of the Student’s brain injury he has global impairments and delays, which impact cognition, language, attention motor abilities, physical functions, and speech. He is nonverbal and non-ambulatory and requires assistance for all school-related activities and daily living. (Id.)

On June 13, 2023, an IEP meeting was held. (Ex 8). The Parent attended the meeting with her attorney who served as her advocate, the School’s Education Director, and the School’s music therapist. (Ex 8-57). A REDACTED was provided to the Parent for the IEP meeting. (Id).

The CSE team used various documents to develop the Student’s IEP. Documents included progress reports from the Private School, the student’s social history which contained information provided by the Parent, classroom observations, and the Private School’s IEP, dated June 12, 2023. (Tr.103-105). The Private School’s IEP included cognitive, social/emotional and communication evaluations including evaluations from the Student’s service providers. (Tr. 103-104, Exs 9-2, 1-5, Ex. 8-2 - 8-5, 8-10 – 8 – 22, Ex. C2 - C16). The CSE concluded that the Student required a lot of one-to-one adult support to assist him with his gross motor needs. The CSE’s School psychologist testified that she believed it necessary to maintain the Student’s related services. (Tr. 107, Ex. C). Accordingly, the CSE adopted most of the recommendations contained in the Private School’s IEP. The CSE recommended the following services for the Student’s 2023/24 school year.

- 6:1:1 special education classroom, individual.

-REDACTED education services 2 x 30 minutes per week, individual.

- Occupational Therapy 5 x 60 minutes per week, individual.

- Parent Counseling and Training 1 x 60 minutes per week, group.

-Physical Therapy 5 x 60 minutes per week, individual.

-Speech Language Therapy 5 x 60 minutes per week, individual.

- REDACTED Education Services 3 x 60 minutes per week, individual

-Paraprofessional for health, safety, ambulation and feeding full time daily, individual.

- Assistive Technology 1 x 60, individual. Ex. 8-47-8-48The CSE did not include music therapy, a one-to-one nurse and limited time transportation on an air-conditioned bus which were recommended in the Private School’s IEP.

The District provided explanations for its recommendations in the Student’s IEP. (Tr. 104-116, Ex 8). The District’s IEP contained a series of measurable goals and smaller goals to address the student’s deficits and allow the Student to make progress. (Ex 8). Many of the goals contained in the Private School’s IEP were incorporated into the District’s IEP. (Tr. 108, Exs, 8, C).

The CSE did not recommend a one-to-one nurse for the Student. (Ex. 8-45 – 8-48). The CSE did not consult with a medical doctor at IEP meeting although it was aware that the Student utilized a one-to-one nurse at the Private School. (Id). (Tr. 132-133). The psychologist testified that to approve a one-to-one nurse, the Parent needed to have medical authorizations signed and submitted to the District for a nurse to be approved. (Tr. 135). At the IEP meeting the Parent presented medical forms from 2022. The CSE informed her that they were outdated and that she needed updated medical information. Id. Ex. 8-56. Testimony from the school psychologist indicated that a follow up letter was sent to the Parent after the IEP meeting, in the English Language regarding the medical authorization forms. (Tr. 134-135). The Parent did not submit medical authorization forms; thus, the School did not provide a one-to-one nurse. Medical authorizations were also needed to make determinations regarding the Parent’s transportation request. (Ex. 8, Tr. 140-144).

Finally, the CSE did not recommend music therapy. The Private School’s IEP notes that the purpose of the music therapy was to increase functional movements, arousal, and attention. (C52-C53). The CSE determined that there were alternative ways to achieve these objectives as noted by the various related services and the goals noted in the IEP. (Ex 8-27 - 8-45). The goals of the REDACTED Education Services and Speech Language Therapy, recommended by the CSE, were recommended to allow the Student to increase awareness/responding, visual attention and movement to a variety of auditory and tactile stimuli. (Ex. 8-30-8-36).

The Parent submitted 10-day notice to the District on June 20, 2023. (Ex. H). The District sent the Parent a school location letter in REDACTED in a letter dated July 3, 2023, for a REDACTED school. (Ex. 9). The Parent testified that she did not receive a school location letter and that she did not visit the recommended placement. (Ex. 9).

The Special Education Coordinator at the Private School testified that the public school had a seat available for the Student and was able to implement the IEP. (Tr. 50). The location was able to provide a 6:1:1 class, had an elevator to accommodate the Student’s mobility needs and had service providers who could implement the service portion of the Student’s IEP.

The Parent signed an enrollment contract for the Student to attend the Private School on July 7, 2023. (Ex. D). The first day of the Student’s extended school year at the public-school placement was July 3 or July 5, 2023. (Tr 93-94). The Student attended the Private for the 2023/24 school year.

The Director of Special Education at the Private School offered both affidavit testimony and testimony at the hearing. (Ex. K). He testified that his duties at the School are to ensure the implementation of the IEP except for the related services as two other People are tasked with that chore. (Ex. 158, Tr. 227).

The Special Education Director testified that when physically absent from school the Student received home services during the school year. Specifically, the Student’s paraprofessional would go to the Student’s home to administer academic and related services to the Student while using a video link to connect the Student to his teacher and providers. (Tr 167-169, 173, 199-205).

The witness’s testimony was contradicted by the Parent who testified that she never met the Student’s paraprofessional, and that no paraprofessional ever came to her home to service the Student. (Tr. 256). The Social History report, based upon conversations with the mother, notes that the Student is absent form school a lot due to sicknesses and medical appointments. (Ex. 2-3). The mother’s testimony corroborated the social history report.

The Student’s 2023/24 class schedule which was also subpoenaed and offered into evidence by the District shows that the Student’s curriculum includes the subjects of social skills, math, and literacy. (Ex. 10). The Director of Special Education testified that the Student received math, literacy, and social skills classes for the current school year. The progress reports are inconsistent with this testimony as it indicates that these three subject areas had either not been introduced to the Student or were discontinued from the Student’s schedule. (Ex 13-3 – 13-6).

The progress reports suggest that the Student has received no academic instruction. Progress reports reveal that the Student has had inconsistent progress in Assistive Technology and Occupational Therapy. (Ex. 13-1 –13-7, 13-11 -13-14). The Student is on track to meet physical therapy goals, although the report indicates that 50% of the goals were discontinued. (Ex. 13-15 -13-17). The Student has shown steady progress in music therapy and Speech Therapy and is expected to reach his goals in these areas. (Ex. 13-8 – 13-10, 13-17 – 13-20). With respect to the Student’s REDACTED services, the 2023/24 progress report from the private school shows that the Student’s performance in four of the REDACTED benchmarks decreased from 3 (emerging) to 2 (inconsistent progress) even though the REDACTED goals remained unchanged from the prior school year. Where there was no regression in REDACTED education services, the Student’s mark primarily remained unchanged with the continued mark of “emerging”. (Exs. 5-23 – 5-26, 13-21 -13-26.)

FAPE

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

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

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

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

A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

The Parent’s Due Process Complaint raised multiple challenges to the committee on special education (“CSE”) which included its failure to recommend a program and placement that were responsive to the Student’s learning needs. (Ex. A2-A3). The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). The DOE conceded the denial of FAPE.

The District’s IEP recommendations largely followed the recommendations in the Private School’s IEP. Accordingly, there is no dispute as to the 6:1:1 classroom size or any of the related services with the exception of the music therapy. The District appropriately relied upon discussions with the Parent, the social history update, progress reports, classroom observation and the Private school’s IEP which contained several evaluations including a thorough review of the Student’s cognitive, physical development and social/emotional progress, in addition to his progress with related services. The IEP considered the Student’s current academic levels, his current program, his areas of weaknesses and offered all related services at the duration and frequency contained in Private School’s IEP. It included annual goals and short-term goals to help the Student make progress towards those goals. Ex. 8-27-8-45. Music Therapy

While the evidence demonstrates that the Private School recommended music therapy, the District is not obligated to provide the Student with every service the Student would receive at a private institution. There is no testimony that the absence of music therapy would be detrimental to the Student or cause regression. The Private School’s music therapy sessions were recommended to help the Student achieve greater attention, increase functional movement, increase arousal and attention maintenance. While the District did not include music therapy in its IEP, the REDACTED education services, occupational therapy, speech therapy and assistive technology were offered to the Student to help increase the Student’s awareness/responding, visual attention and movement to a variety of auditory and tactile stimuli, increase his participation, communication, and social skills. (Ex. 8-30-8-36). There is no evidence that music is the only means in which to achieve the same or similar objective. Accordingly, the absence of music therapy is not a denial of FAPE.

One to One Nurse

The school psychologist testified that to provide a one-to-one nurse for the Student the Parent needed to submit medical authorizations to allow the District to contact the Student’s physician. A school does not have to rely on a Student’s physician to make a medical determination, a school District may rely on the opinion of its own physician with respect to medical determinations (Matter of Hauser, 14 Ed. Dept. Rep. 336; Application of a Handicapped Child, 25 id. 365; Application of a Child with a Handicapped Condition, Appeal No. 90-12).

While it would have been helpful for the Parent to submit the medical authorizations, it is ultimately the District’s responsibility to properly evaluate the Student. At the time of the IEP meeting the District was aware of the Student’s medical condition, his REDACTED his dependence on others for every aspect of his life. Accordingly, medical personnel should have been present at the IEP meeting to decide on the one-to-one nurse.

In the alternative the District should have requested that the Parent submit the Student for an evaluation by the District’s own doctor to determine whether a one-to-one nurse was appropriate for the Student for the 2023/24 school year. The Student’s safety is a serious matter and the issue of whether the Student needed a one-to-one nurse needed to be determined by the District to develop an appropriate IEP that considered the medical and safety needs of the Student to allow him to safely receive educational instruction.

Limited Time Transportation/Air-Conditioned Bus

The District is required to provide "suitable transportation to and from special classes or programs" (New York Education Law § 4402[4][d]). The District should have utilized its own medical doctor, in the absence of medical documents from the Parent to decide whether limited time travel and an air-conditioned bus was a medical necessity for the Student.

The failure to conduct an appropriate medical evaluation to determine the Student’s transportation needs to travel safely to and from school is a denial of FAPE, For the reasons above, the District did not meet its burden of proof in this proceeding. The Parent, on the other hand, met the first of the three Burlington/Carter criteria for tuition reimbursement.

UNILATERAL PLACEMENT

The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]). The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether 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 Private School is an appropriate placement as evidence by the IEP it developed that was largely adopted by the District. The Private School provided a thorough evaluation of the Student needs, and recommended a program and services that was uniquely tailored to address the Student’s deficits and allow him to make progress. The Private School considered the Student’s medical needs in and outside of the classroom by recommending a one-to-one nurse. The Private School also limited travel time and provided an air-conditioned bus to allow the Student to comfortably travel from home to School safely and quickly in the event of a medical emergency.

The testimony at the hearing, raises a question with respect to the implementation of the Student’s IEP. There was conflicting testimony between the Director of Special Education and the Parent that suggests that the Student has not been receiving any home services. Testimony further reveals that changes were made to the IEP which included the discontinuation or failure to introduce the Student to math, literacy, and social skills. Despite this seeming implementation issue, the Parent has demonstrated that at the time of the Student’s placement, the Private School was appropriate as it offered the Student a program tailored to meet the Student’s significant and unique needs. Moreover, the Private School’s IEP demonstrates that the school was equipped with all the necessary service providers and supports as evidenced by their evaluations in the Student’s IEP.

Accordingly, the Private School was an appropriate placement for the Student for the 2023/24 school year. The Parent has therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

EQUITIES

The equities support the Student’s tuition funding claim. The Parent cooperated with the IEP process, provided information to the CSE to allow it to develop a social history update, provided important medical documents, although determined outdated, and actively engaged in the IEP process by providing feedback and submitting the Student’s progress reports and the IEP from the Private School.

The Parent served timely 10-day notice on June 20, 2023, several days before the start of the school year, and the signing of the enrollment contract, to inform the District of her dissatisfaction with the Student’s IEP and the desire to return for another IEP meeting. The Parent acted reasonably in identifying a unilateral placement for the Student in light of the District’s failure to respond and its denial of FAPE.

Direct Funding

The Parent has demonstrated that the School is an appropriate placement for the Student. The Parent has testified that she lacks the financial means to pay for the school (Ex. I). A student should not be harmed due a Parent’s limited financial means when attempting to correct the District’s failure to provide FAPE. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y 1998) (1998). To adopt the philosophy that a Parent must pay the tuition first or commit. themselves to an enrollment contract without having the financial means to fulfill the financial obligation puts an unfair burden on a Parent. Such a philosophy could subject a child to an inappropriate public education because the Parent lacks the financial means to rectify a FAPE denial. Direct tuition funding for the 2023/24 school year is appropriate.

Independent Educational Evaluation

The Parent’s due process complaint requests an order directing the District to fund an independent educational and asks the same in her closing brief. (ii 29-30). There is no evidence that the Parent requested an independent educational evaluation at public expense prior to initiating the due process complaint. The controlling statue indicates that a district is required to either grant the IEE at public expense or initiate due process to defend its own evaluation of the student, but the District need only do so “without delay”. (34 CFR 502[b][2].). The Parent has offered no evidence that it previously requested an IEE and that the request was denied or delayed by the District. Accordingly, Parent’s application for an independent educational evaluation is denied.

DECISION

The Student was denied a free and appropriate public education during the 2023/24 school year. The Private School is an appropriate placement, and the equities support the Parent.

ORDER

IT IS HEREBY ORDERED THAT the District shall directly fund the 2023/24 tuition and related services pursuant to the Annual Enrollment Contract agreed upon by the Private School and the Parent.

FURTHER ORDERED THAT the District shall directly fund the Student’s transportation company pursuant to the special transportation agreement between the Parent and the transportation company for the 2023/2024 school year.

FURTHER ORDERED THAT the District shall fund the costs for 1:1 nursing services pursuant to the Annual Nursing Service Agreement between the provider and the Parent for the 2023/24 school year.

SO ORDERED

Dated: December 18, 2023

REDACTED

REDACTED, 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.

DOCUMENTS ENTERED INTO THE RECORD

PARENT’S EXHIBITS

A. Due Process Complaint –IH # 251058 07/05/23 10 pages

B. Finding of Fact Decision-IH # 241522 05/17/23 15 pages

C. REDACTED IEP 2023-24 School Year 06/12/23 66 pages

D. REDACTED Enrollment Contract 2023-24 School Year 07/07/23 6 pages

E. Transportation Agreement 2023-24 School Year 07/07/23 6 pages

F. Nursing Agreement 2023-24 School Year Stricken 07/04/23 8 pages

H. Ten Day Notice 2023-24 School Year 06/20/23 2 pages

I. Affidavit of REDACTED 09/22/23 2 pages

J. Affidavit of REDACTED (REDACTED) 09/22/23 2 pages

K. Affidavit of REDACTED 09/22/23 5 pages

DISTRICT’S EXHIBITS

1. Classroom Observation 01/20/2023 1 page District

2. Social History Update 01/26/2023 7 pages District

3. Q1 REDACTED Progress Report 10/07/2022 22 pages District

4. Q2 REDACTED Progress Report 01/06/2023 24 pages District

5. Q3 REDACTED Progress Report 04/21/2023 26 pages District

6. Subpoena 09/14/2023 8 pages District

7. REDACTED Subpoena Response 09/19/2023 4 pages District

8. IEP 06/13/2023 59 pages District

9 Prior Written Notice 07/03/2023

10 pages District

10. REDACTED Class Schedule 2023-2024 1 page District

11. REDACTED Attendance 2023-2024 1 page District

12. 05/31/2023-06/27/23 Email Re: Transportation 3 pages District

13. Q1 REDACTED Progress Report 10/06/2023 27 pages District

IHO EXHIBITS

i. Motion for Partial Summary Judgement 09/29/2023 3 pages IHO

ii. Closing Brief 11/17/2023 30 pages IHO

iii. Closing Brief 11/17/2023 20 pages IHO