Impartial Hearing Decision

RECORD CLOSE: December 12, 2023

DATE OF DISTRIBUTION (IF DIFFERENT):

HEARING OFFICER DETERMINATION AND ORDER

In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding, STUDENT1, a minor, by and through his/her Parent(s), -against-

DISTRICT

INTRODUCTION AND PROCEDURAL BACKGROUND

The District (sometimes referred to as “DOE”, “LEA”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of the Student.

A substantive fact finding hearing was conducted in the instant matter wherein testimony and evidence was collected2.

It is important to note that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended to allow sufficient time for the parties to investigate the

-2possibility of settlement and prepare for hearings. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)).

CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins

-3with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).

The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA

-4requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007). Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be

-5met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).

FINDINGS OF FACT AND DISCUSSION

I. EFFECT OF NOT PRESENTING WITNESSES AND EVIDENCE

The District in this matter did not present witnesses during the presentment of their case. The District relied on the submitted exhibits to carry their burden as it relates to the provisioning of FAPE (See exhibits 1-4). The District cites multiple SRO decisions that support the argument that the District need not present witnesses to meet their burden. (See Appeal Nos., 23-005, 23-090, and 23-129).

The District is obliged to carry the burden as to the question of whether or not the District offered a FAPE to the Student. The District may carry this burden by presenting any witnesses or evidence that they feel supports the claim that a FAPE was offered. Cases involving alleged violations of the IDEA are highly fact specific and the undersigned can envision cases where the presentation of documentation, in it of itself, can meet the burdens of the District. However this is not one of those cases. The District admitted into the record an IEP, Prior written notice, email exchanges, and what can be described as a guidance document involving Medicaid Provider Billing. If the issue in this case was the existence of an IEP the District may have met its burden.

-6When the allegation is the IEP is flawed the District is obliged not to just simply submit the IEP in evidence but to present other witnesses or perhaps other documents that support the conclusion that an IEP is not flawed but rather reasonably calculated to confer an educational benefit3. As a general matter of jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact. The failure to address the allegation must serve as a failure to meet their said burden. The undersigned can not envision an area of American jurisprudence where a party with the burden of proof can fail to address the allegation at hearing and still prevail on the issue.

Moreover the trier of fact must ascribe what weight, if any, to the witnesses and evidence presented. With witnesses there is a direct and cross examination for this trier of fact to make determinations of credibility and reliability. Without a witness to discuss the creation of said document and provide essential background as to why the document was drafted the way it ultimately exists, I am bound to only consider the four corners of the document. In cases where the allegation is the document exists but contains errors it is the obligation to present the document and other evidence to suggest that it doesn’t contain errors.

Without understanding what discussions occurred as to the placement decisions, why the District chose one placement over another, and how the District considered the Parent’s position it is simply not possible to ascribe sufficient weight to the documentation where the District is anywhere near meeting their burden.

Lastly, the District in their closing brief argues the merits of the position that documents alone can support a finding that a FAPE was offered, but then fails to demonstrate how the

-7evidence submitted supports that a FAPE was offered (See, generally, closing brief of the District).

The SRO has also found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044).Therefore IHO adopts as proven the allegations more particularly described and made in the due process complaint dated July 5, 2023.

II. RELIEF SOUGHT

A. TUITION REIMBURSEMENT - PRONG 2 - APPROPRIATENESS OF

THE UNILATERAL PLACEMENT

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all” approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student.

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 the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receive educational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115).

-8In the instant matter the Deputy Director of Special Education at [REDACTED], testified regarding the components of the educational program and placement that Student received at [REDACTED]. (Ex. C, Tr. 272-279). Deputy Director testified that [REDACTED] is a special education program that focuses on students who have a brain injury or brain-based disorder. The students at [REDACTED] are primarily non-verbal and non-ambulatory. (Tr274). [REDACTED] has several departments focusing on various related services, including physical OT, PT, SL, VES, HES, MT, AT, nursing, and counseling, which are provided to the students in 60-minute intervals. (Ex.J, Tr 275, 279). Important characteristics of the program include the use of a direct instruction model, an interdisciplinary program which includes an intensive regimen of related services due to students’ TBI classification. (Id.).

The Deputy Director also testified as to the Student’s program at [REDACTED]. (Id.; Tr. 272-280). The IEP developed by [REDACTED], and in effect for the Student during the 23/24 ESY, sets forth the components of that program. (Ex. C).

The Student has a disability classification of Traumatic Brain Injury (TBI) and attended an extended school day as part of a 12-month program. (Ex. C; Tr. 272-279). The Student attended a 6:1:1 class with students who have similar educational and management needs. (Ex. C; Tr. 272-279). The program includes Physical Therapy (“PT”) – 1:1 – 5x/week, 60-minute sessions; Occupational Therapy (“OT”) – 1:1 – 4x/week, 60-minute sessions; Speech-Language Therapy (“SL”) – 1:1 – 5x/week, 60-minute sessions; Vision Education Services (“VES”) – 1:1 – 3x/week, 60-minute sessions; Assistive Technology Services (“AT”) – 1:1 – 1x/week, 60-minute sessions; Music Therapy (“MT”) – 1:1 – 4x/week, 60-minute sessions; (Ex. C-52-60).

-9The Parent also identified progress the Student has made including 40 minutes in her gait trainer, has learned the letter P, and is able to answer questions using her switch assistive technology device, in addition to allowing [REDACTED] to brush her teeth. (Tr. at 199).

I therefore find the Parent has meet their burden with regards to the tuition of Prong 2

B. RELIEF FOR RELATED SERVICES

The Parent seeks supplemental tuition costs in the amount $113,928.00 for related services. The District argues that there is little evidence offered that related services were actually provided and the failure to provide progress reports and attendance records of the providers are offered to alleviate this District concern.

Besides the general assertion raised by the District, there is no evidence submitted to think that the Parent or the school are engaging in fraud and the services are being fraudulently provided. The District does not argue that the services are superfluous or unnecessary but rather asserts concerns of fraud. The undersigned is cognizant of concerns of fraud and the unilateral placement should be able to provide the District with proof of services rendered but upon that proof and absent the argument that these services are in fact unnecessary should be paid by the District.

C. RELIEF FOR TRANSPORTATION

The Parent is seeking direct funding for transportation services. The Parent executed a contract for transportation services between herself and [REDACTED]. The transportation contract executed is what can best be described as a “flat fee” arrangement wherein the Parent is obligated to pay a fixed amount regardless of the actual number of times the Student uses the service.

- 10 In recent evolving case law, the Federal Court has remanded similar matters to IHO to further determine “If the sisters contracts are consistent with industry norms and the Plaintiffs had no meaningful choice but to contract to pay for services without regard as to whether the student’s utilized the services” the District Court further opines that if the Parent’s were to demonstrate the above, there “may be a strong case for full DOE reimbursement”. (See Opinion and Order of the Honorable Judge Furman, Davis v. NYC Department of Education 22-CV8184).

The Parent sought to demonstrate that the amount the District would pay for the services would be consistent or less than what the District pays for the services and similar to the Parent’s contract, the District’s transportation contracts are not a “per trip” but rather a flat fee regardless of Student use. The undersigned believes the industry norms discussed were not what the District pays for these services but rather what parents who pay for private transportation pay for these services and the nature of whether these contracts are “per trip” or “flat-fee” or something else. In furtherance of this belief, the Parent’s request for subpoenas was declined.

Regarding, what may be the most salient issue is whether or not the parent had a meaningful choice. The District argues that the Parent had a choice, choice was between District services, at no cost to the Parent. The District does not dispute that it is the District has an obligation to provide transportation to this Student. What is at issue is whether or not the Parent knew of the District’s obligation at the time the Parent sought out private services. The District argues they informed the school placement to notify them if there were any Parent’s requiring transportation services. This is not the obligation of the placement, but rather an obligation of the District to let Parents know of their service, or at least notify them of any deadlines for when transportation requests need to be made. This is even more important for students with special

- 11 needs, where transportation is part of the discussion or should be a part of the discussion at the CSE meeting. No evidence was offered to suggest the Parent was aware of the District’s offerings and they declined. The District did not demonstrate that they attempted to contact the Parent to notify her that transportation will be provided. The Parent’s testimony does not support that the Parent knew that District services would be made available to her in an identical fashion as that of [REDACTED] or she was afforded an opportunity to compare District’s transportation services to the offering that [REDACTED] offered.

The cost of transportation service like any other service must be viewed within the context of reasonableness. Sufficient evidence must be proffered that given the Student’s unique needs and circumstances the cost of these services are in fact reasonable. Part of that reasonableness determination must be some demonstration that the costs are consistent with industry or market rates. This can be accomplished in different ways, testimony from the provider describing how the cost was developed. Testimony from a parent who states that she sought out multiple bids and ultimately determined that this one was the most appropriate. Perhaps documentation evidence multiple attempts to find a provider and only one response.

The Parent seeks transportation costs in the amount of $154,780.00 for the school year. ESY schools are required to provide a minimum of 30 days within the months of July and August on top of the 180 mandated requirement for the rest of the academic year. Therefore by my calculation the Parent is seeking $737.05 per day.

In the absence of a demonstration that $737.05 is an appropriate amount and the flat fee arrangement is reasonable. I find that the service shall be compensated $500.00 per documented and completed round trip. This amount represents consideration of the Student’s unique needs,

- 12 the staffing involved and the relative cost information made available to me for my review.

EQUITIES

With respect to the relief of tuition reimbursement, an assessment must be made as to equitable determinations. Similar to Prong one and two, no one factor is dispositive on this determination.

Over the progeny of cases, factors have been identified to consider when they exist in the case such as 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 scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school or whether the Parent was cooperative with the District process in their efforts to meet their obligations under the IDEA (See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] and C.L. v. Scarsdale Union Free Sch. D., 744 F.3d 826, 840 (2d Cir. 2014).

This determination, in essence, is whether or not the parent’s acted in good faith with the district. Much like the District is required to not “pre-determine” a plan or placement before the IEP meeting, so too are the parents required not to “pre-determine” a particular placement of their child. This requirement embodies the idea that the CSE meeting is meant to be a collaborative approach where all parties are participating meaningfully.

The equitable consideration that the District argues is that of overall cost. Cost of related services and transportation have already been discussed and rationale proffered as to their limitations, if any.

Regarding the tuition cost, however, to be clear, cost is a consideration but it should not be the only consideration. Specifically in cases where the student is profoundly delayed it is

- 13 simple to argue, as the District does in this case, that the Student is not receiving precious little instruction for the cost. This fails to consider the needs of a student with profound disabilities. While the District conclusory argues that $190,000.00 is unreasonable, it has failed to demonstrate that. Nor does the amount shock the undersigned given the profound delays of the Student and the uniqueness of the school.

ORDER

BASED ON THE FOREGOING, IT IS, ORDERED that the District has failed to provide a FAPE for the 2023-2024 school year; and it is further, ORDERED that the District shall directly fund or where appropriate reimburse the Parent for the tuition expenses and related services cost for the Student; and it is further, ORDERED that the District shall pay for transportation related expenses at a rate of $500.00 per completed round trip for transportation services to and from the Student’s home and the unilateral placement; and it is further, ORDERED that the District to the extent not already provided in the last 12 months, shall evaluate the Student in the area of Assistive Technology Services and Devices and AAC to assist the Student with communication; and it is further, ORDERED that the District to the extent not already provided in the last 12 months, the District shall provide the Student an independent psychological, neuropsychological evaluation said evaluator shall be at the Parent’s choosing and at their usual and customary rates; and it is further, ORDERED that the District shall reconvene the CSE to ensure that the Parent is offered transportation services for a 1:1 transportation nurse, air conditioning, a lift bus, a regular-sized wheelchair, and limited time travel of sixty minutes or less; and it is further,

ORDERED that upon the completion of the evaluations ordered herein, the CSE shall convene within 20 days to review said reports and make recommendations as the issues of placement and

Dated: December 20, 2023

Garden City, New York

Jeffrey Guerra, Esq.

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.

1 Personally identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.

2 Included as part of the record, and herein incorporated by references are lists of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e. Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e. Exhibit A, B, etc.). Evidence of the IHO are denoted by roman numerals (i.e. Exhibit I, II, etc.). Page numbers are listed for the convenience of the reader (i.e. Exhibit 1-2, A-2, or I-2 where “2” is the page number).

3 The Parent specifically alleges that the conclusions drawn at the IEP meeting as it relates to class size, school location, were errors and the Parent disagreed with the decisions of the CSE at the CSE meeting.