Impartial Hearing Decision

CASE NUMBER: 603619 -[REDACTED]

FINDINGS OF FACT AND DECISION

Case Number: 251423

Student’s Name ^[1]: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: July 10, 2023

Date(s) of Hearing: September 11, 2023 and October 5, 2023

Actual Record Closed Date: October 24, 2023

Date of Decision: November 2, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 11, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Attorney

For the Department of Education:

[REDACTED] District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 5, 2023

For the Student:

[REDACTED] Attorney

[REDACTED] Attorney

[REDACTED] Parent

[REDACTED] Deputy Director of Special Education

For the Department of Education:

[REDACTED] District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated July 5, 2023 and filed on July 10, 2023. (Ex. P-A) ^[2]. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on July 13, 2023. A pre-hearing conference was held on August 11, 2023, following the resolution period. A status conference was held on August 30, 2023. A 30-day extension of the compliance date was granted at the request of the District to provide an opportunity for documents to be subpoenaed and entered into the record. Fully executed subpoenas for records from [REDACTED] (hereinafter referred to as “the private school”) and [REDACTED] were provided to the District’s attorney on September 5, 2023. At the request of the Parent, a pendency hearing was held on September 11, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. Both parties submitted written arguments. The IHO issued an order denying the Parent’s request that the private school be designated as the Student’s pendency placement. A hearing on the merits was held on October 5, 2023. [REDACTED] appeared on behalf of the Student. [REDACTED] appeared on behalf of the District. An 11-day order of extension was issued on October 5, 2023, to give the parties an opportunity to submit closing briefs.

The Parents entered exhibits A-I^[3] into evidence on September 11, 2023. The Parents entered exhibits J-L into evidence on October 5, 2023 ^[4]. District exhibits 11, 12, 14 and 15 were entered into evidence on September 20, 2023 ^[5]. The Parents presented the private school’s Deputy Director of Special Education [REDACTED] (hereinafter referred to as “the Deputy Director”) and the Parent as witnesses. The District did not present any witnesses.

The District requested via email on October 20, 2023, an extension of time to submit closing briefs, and an extension until October 24, 2023 was granted. The Parent submitted a closing brief on October 20, 2023. The District submitted its closing brief on October 24, 2023. The record was closed on October 24, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

At the time of the request of the hearing, the Student was a [REDACTED] year old girl classified by the District’s Committee on Special Education (“CSE”) as a student with a traumatic brain injury (“TBI”). On February 7, 2023, the CSE met and recommended a 12:1(3:1) placement in a District 75 school for 35 periods per week for the twelve-month school year, effective February 27, 2023. The District recommended occupational therapy (“OT”), speech language therapy, physical therapy (“PT”), vision education services (“VES”), adaptive physical education and parent counseling and training. The District also recommended a full-time individual paraprofessional for health, ambulation, safety and feeding, as well as assistive technology services (Ex. P-H-58-59). The IEP included a recommendation for special transportation with a 1:1 paraprofessional (Ex. P-H-64).

The Student began at the private school in the Fall of 2021 and remained during the 2022-

23 school year. The Student was placed again unilaterally by the Parent in the private school for the 2023-24 school year.

ISSUES

The Parent challenges the 2023-24 Individualized Education Program (“IEP”) developed by the CSE on February 7, 2023. The Parent alleges in the DPC that she received a prior written notice and school location letter, dated March 6, 2023 designating [REDACTED]. The Parent alleges that she contacted the school, and they indicated that they were no longer wheelchair accessible (Ex. P-A-4-5). The Parent alleges further that a 12:1:(3:1) class in [REDACTED] school is grossly inappropriate for the Student in that she requires a quiet, distraction-free environment with 1:1 instruction from a special education teacher and integrated therapies. The Parent alleges that the recommended placement does not have students with similar needs to the Student under 8 NYCRR 200.6(h)(3) or students who could serve as role models.

Aside from the wheelchair accessibility, the DPC alleges that [REDACTED] cannot implement the February 7, 2023 IEP because: related services are limited to 30 minutes, there are not enough hours in the week to provide the Student with all of the related services, there are no dedicated areas for related services, pull-out services take place in unairconditioned hallways, students in the proposed class may have behavioral needs, there are no feeding/swallowing protocols, the school can’t provide a quiet, distraction free, appropriately lit, safe environment and staff lack training and experience with TBI students (Ex. P-A-6).

The DPC alleges further that the IEP fails to recommend music services, hearing education services (“HES”), 1:1 nursing services or a 1:1 travel nurse and doesn’t indicate whether the related services are push-in or pull out. The DPC alleges that the District’s recommendations were predetermined.

The DPC alleges that the District failed to have sufficient evaluative data in all areas of the Student’s disability to support its recommendations. The lack of evaluative information prevented the Parent from meaningfully participating. The Parent requests an independent educational evaluation (“IEE”) consisting of a neuropsychological evaluation, psychological assessment and educational needs assessment.

The Parent alleges that the 6:1:1 class at the private school is appropriate for the Student and seeks direct funding of the placement for the 2023-24 school year, in addition to costs of related services, a 1:1 paraprofessional and 1:1 nurse as needed. The DPC seeks direct payment/prospective funding of special education transportation with a 1:1 transportation nurse, air conditioning, a lift bus, a regular-sized wheelchair and limited travel time of 60 minutes. Lastly, the DPC requests a reconvened IEP meeting to address changes, if necessary. (Ex. P-A-9).

In its opening statement, the District stated that it would not be presenting any witnesses, but that it would be able to prove based upon the documents admitted into evidence that the District provided a FAPE for the 2023-24 school year, that the private school is not appropriate and that the equities weigh in the District’s favor (T:79-80). The Parent countered that the District did not offer a FAPE, the private school continues to be appropriate, and that equitable considerations support a full award via direct payment for the cost of tuition, related services, special transportation, and one-to-one nursing costs (T:83).

FINDINGS OF FACT

The Parent testified that the Student is one of her 13 children that live with her (T:259). The Parent testified via affidavit that the Student is diagnosed with a seizure disorder, infantile spasms and hearing and vision loss, resulting in severe impairments in language, memory, physical functions, information processing and speech. The Student is non-verbal and non-ambulatory. She has attended the private school since the 2021-22 school year (Ex. P-K-1). Prior to that she attended [REDACTED] (T:258).

The Parent testified that she has a Medicaid home health aide that provides assistance at home for four hours per day when the Student is in school and eight hours per day on non-school days (T:259-60).

The Parent testified that she attended the CSE annual review meeting on February 7, 2023 along with the Student’s teacher and related service providers from the private school. The CSE agreed with the Student’s classification and frequency and duration (60 minutes) of related services (Ex. P-K-1). The Parent disagreed with the recommendation for a 12:1:(3:1) classroom and placement in [REDACTED] school because the large class size and school would not provide the required quiet, distraction free environment, particularly because of her dual hearing/vision diagnoses. The CSE also did not recommend music therapy. The Parent alleges that the Student requires the assistance of a 1:1 paraprofessional, 1:1 nurse and 1:1 travel nurse (Ex. P-K-2). There is no documentary evidence in the record of a school location designation. The Parent testified that she did receive a letter for a particular school, called the school and was advised that the school was not wheelchair accessible (T:222-23, 229).

The Parent sent a “Ten Day Notice” to the District on June 20, 2023 of her intention to enroll the Student again at the private school for 2023-24 (Ex. P-J). She stated that she has always cooperated with the CSE and that the Student has made progress at the private school. It would be virtually impossible for the family to front the costs of the placement (Ex. P-K-2).

The Parent testified that the Student rides to school every day in a van with her other daughter who attends the same private school. The Student’s sister also has a 1:1 nurse who rides in the van. Two nurses and two paraprofessionals ride on the van with the two students for the 30-to-45-minute ride to and from the private school (T:193; 256-58). The Parent testified that the transportation agency was recommended to her by the private school (T:238). The Parent testified that the nursing agency also was recommended to her by the private school (T:239).

The Parent seeks direct payment for the cost of base tuition ($190,000), related services ($129,624), transportation ($166,770) and 1:1 nurse for school and transport ($292,556) 6 for a total cost of $778,950 (Exs. P-C, E and G).

The Deputy Director testified via affidavit that he has held that position since February of 2023. He taught in the District’s schools for^[6] years, but never in a [REDACTED] school program (T:189). His affidavit states that he holds a New York State teacher’s certification, but when asked about it during the hearing, he stated his certification had expired (T:188-89). He stated that the private school is a highly specialized special education program for students who suffer acquired brain injuries or brain-based disorder. The school has an extended 12-month school calendar year and extended day which runs from 8:30 to 5:00 pm. Every student requires a 1:1 paraprofessional to assist with activities of daily living (“ADL”). Many students also require a 1:1 nurse (Ex. P-L-2).

The Deputy Director testified that the private school has seven 6:1:1 classes and three 8:1:1 classes between its [REDACTED] campuses. Students are aged 5 to 21. Most students are classified with a TBI and have management needs that are intensive or highly intensive requiring a high degree of individualized attention and intervention (Ex. P-L-2). The Student attends the private school’s [REDACTED] campus where there are 39 students (T:177). He testified that the Student’s teacher is [REDACTED] and that she is a New York State certified teacher in special education birth to second grade (T:100). 7

At the [REDACTED] campus where the Student attends there are 39 1:1 paraprofessionals for the 39 students. Two school building nurses are on staff at that campus. Forty percent of the Students have 1:1 nurses. In the Student’s classroom, there are six students, a teacher, a teaching assistant, six paraprofessionals and at least three 1:1 nurses at different times (T:179).

He testified that he does not teach at the private school nor provide any direct services to students (T:102). He observes the Student’s classroom one to two times per week for 5 to 20 minutes (T:116-17). He testified that the Student has been absent for the last two weeks, but did not know why, citing to the private school’s roster of 60 students. He stated that he was in her classroom a few days ago, but did not ask the teacher why she was absent (T:182).^[8] During this time period the private school gives her activities she can work at home with the parent (T:183) ^[9]. He did not know where the contracted 1:1 nurse was during this time period (T:184-85).

The Student was formally evaluated when she entered the private school in 2021, but has not been formally evaluated since (T:181). The Parent introduced the private school’s report and education plan, dated February ^[7], 2023. The report contains some evaluative information regarding her present levels of performance. On February 6, 2023 she scored at a Level V: “Seldom Effective Sender and Receiver with Familiar Partners on the Communication Function Classification System (CFSC) and 4/65 on the Pediatric Evaluation of Disability Inventory (PEDI)(Ex.P-B-2). On the Gross Motor Function Measure (GMFM-88), a standardized measurement of functional mobility of students with Cerebral Palsy that provides percentile scores,^[10] she scored 44/51 on lying and rolling, 30/60 on sitting and 2/52 on crawling and kneeling, standing 0/39 and walking, running and jumping 1/72 in January of 2023 (Ex. P-B-14-15).

Based upon a Cortical Visual Impairment (“CVI”) assessment in December of 2021, it was asserted that several characteristics of CVI have begun to resolve (Ex. P-B-15,17). Her present levels under AT indicate that the District recently conducted an AT evaluation in January of 2023, but the Parent objected to the introduction of the evaluation into the record pursuant to counsel’s 5-day rule objection (Ex. P-B-21). There is reference to the private schools Dynamic AAC goals Grid 2, dated February 3, 2023 that categorized her as a Level#1: Emergent Communicator (Ex. P-B-22).

There are no distinct formal or informal assessments listed under her speech present levels of performance, although previously referenced testing is listed under communication/language assessment (Ex. P-B-24-25; 29-30).

Under academics, although no formal or informal assessments are listed, the report states that “she has shown improved attention span to attend to tasks and focus when she has multisensory supports… overall she has demonstrated a fast rate of progress since her start at [the private school] although her performance continues to show some inconsistency on a dayto-day basis.” (Ex. P-B-16).

Under OT, the plan includes a section entitled targeted goals for next year. It refers to goals for grasping a marker and making a mark on paper, maintaining a functional seating position, limiting oral sensory seeking behaviors, increasing independence in play-based skills, auditory discrimination, self-feeding, dressing and tolerance to grooming tasks including hair brushing and facial hygiene (Ex. P-B-40-41).

For PT, the report contains two graphs for sit to stand transitions and ambulation. The data collection for both graphs ends in January and February of 2023, respectively (Ex. P-B-42-43).

For music therapy (“MT”), there is no informal or formal assessment referred to (Ex. P-B45). The plan indicates that during the 2022-23 school year, her average duration of instrument play increased from 5 seconds at a time to 15 seconds at a time on average. It is referenced that MT has increased from two to three sessions per week (Ex. P-B-46).

The private school’s plan contains annual goals for academics, including literacy, cognition or math and social skills, vision, hearing, AT services, speech therapy, PT, OT, MT, parent counseling and training and the 1:1 paraprofessional (Ex. P-B-56-83).

Although he was not in attendance, the Deputy Director testified that the District at its CSE meeting on February 7, 2023 adopted many of the private school’s IEP recommendations (T:190). The Deputy Director testified that he disagreed with the 12:1:(3:1) class recommendation in a [REDACTED] school because the Student requires a small, modified environment with reduced visual and sound distractions. She requires periodic breaks, additional processing time and purposeful repetition during related services and instruction. He strongly disagreed with the CSE’s failure to recommend a 1:1 nurse and travel nurse due to her increased seizure activity. He also disagreed with the lack of music therapy and the failure to designate whether related services were push in or pullout (Ex. L-4; T:191-92).

He testified that the Student currently attends a 6:1:1 class with direct and small group instruction and receives the following services: OT 5 x 60, PT 5x60, speech therapy 5 x60, VES 3 x 60, MT 3 x 60 individual and 1 X 60 group ^[11], hearing education services (“HES”) 2 x 60, orientation and mobility services (“OMS”) 1 x 60 and AT 1 x 60. She requires the assistance of a 1:1 paraprofessional throughout the school day and a 1:1 nurse^[12] and travel nurse to administer medication and monitor seizures. Pursuant to the plan under supplementary aids and services, a 1:1 paraprofessional and school nurse are included (Ex. P-B-89). Her travel time should be limited to 60 minutes (Ex. P-L-5 and P-B-84-89). When asked, he did not know how long the Student’s bus ride is (T:152).

The school schedule in evidence indicates that the Student receives 30 minutes per day of 1:1 instruction, 30 minutes per day in a group activity ^[13], 5 hours per day in related services, one hour per day in activities of daily living skills delivered by a paraprofessional and 1 hour in lunch (Ex. D-15, T:154, 205). The paraprofessional is with the Student throughout the day. The Director testified that all the related services are pullouts (T:115). He then clarified that AT is a push-in. He said the Student could receive push-in services from other related services providers by that related service “is not my scope.” (T:115-16). He later testified that one related service provider comes into the classroom per day (T:179).

When asked how frequent her seizures are, the Deputy Director did not know a frequency but states that she could exhibit three to four “seizure-like” activities per day (T:186). He did not know how frequently the nurse needed to administer medication but stated that there was a protocol in place (T:186). He did not know if she has had any seizures during transport (T:193). He stated that all employees at the private school, including her paraprofessional, are trained on recognizing seizures and responding to seizures (T:186-87).

In one brief paragraph in his affidavit direct testimony, the Deputy Director testified that over the past school year, the Student has made progress in skills across academic and related service domains at the private school and he anticipates her to make continued progress (Ex PL-6). The Deputy Director testified that progress reports are issued quarterly, however, none of her progress reports were entered into the record aside from the reports incorporated into the February 7, 2023 private school IEP (T:140, 174, 181, 209-10). He testified that he was aware that she made progress on her attentiveness based upon observation and conversations with teachers (T:208-09). He also stated that for a skill such as attentiveness, data-tracking would take place (T:210-11). He testified that she is able to attend to an academic activity for the majority of the academic session with minimal breaks (T:211). When asked if related service providers track the amount of breaks she takes per session, he replied that that was beyond his scope (T:148-49).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written 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, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 or payment for services 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)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).

It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal #22-154).

If the District is unable to prove that it met its burden under Prong I, the Parent in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “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).

Finally, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement. Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Proof of inability to pay is not required to establish the propriety of direct retrospective payment of tuition or fees by a school district (Ferreira and Rojas v. New York City Dept. of Educ., 22 Civ 4993, 123 LRP 9785 [March 14, 2023 SDNY]).

With regard to the Parent’s request for funding of an IEE, pursuant to Section 200.5(g)(1)(iv) of the Commissioner’s Regulations: “If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” (see also 34 CFR 300.502). A parent is entitled to one IEE at public expense each time the school district conducts a comprehensive evaluation with which the parent disagrees (34 CFR 300.502[b][5]). A parent cannot circumvent the IEE process and request for the first time an IEE in a DPC (Application of a Student with a Disability, SRO Appeal No. 23-157).

ANALYSIS

DISTRICT’S IEP

As stated above, the District bears the burden of proof of the appropriateness of the February 7, 2023 IEP. The District presented no witnesses in support of its IEP recommendations. Most concerning, however, is that there is no reliable evidence in the record that the District identified a placement that could deliver the recommended services. There is some confusion in the record between the DPC and testimony of the Parent whether a specific location was designated for the 2023-24 school year, and there is no school location letter in the record. The Parent believes she may have received one, but upon placing a call to the proposed school, was advised that the school was not wheelchair accessible. This was not refuted by the District. The Parent raises further speculative arguments regarding whether the District could implement the IEP in the uncontradicted testimony of the Deputy Director. Based upon the failure of the District to introduce testimony or evidence that it was able to implement the IEP, I find that the District did not meet its burden of proof under Prong I of the Burlington/Carter test that it offered the Student a FAPE. Based upon this failure, I do not find it necessary to address the remainder of the Parent’s challenges to the IEP.

UNILATERAL PLACEMENT

Turning to the private school program selected by the Parent, based upon a thorough review of the testimony and evidence, I find the Parent did not meet her burden that the private school provides the Student with specific instruction to meet her extensive and unique special education needs. The only professional witness that testified from the school, the Deputy Director, has only been at the school since February. He does not teach or provide any services to the Student. The veracity of his testimony is called into question in that his own affidavit falsely claims that he is a New York State certified teacher. (Ex. P-L-1; T:188-89)14. His testimony that the Student’s teacher was a certified special education teacher was also false. While private schools need not employ certified staff, the inaccuracies in the Deputy Director’s testimony call into question the reliability of his testimony in total – falsus in uno, falsus in omnibus.

Aside from the veracity of his testimony, the Deputy Director was unable to answer many questions due to the subject-matter being “beyond his scope”, particularly with regard to the delivery of related services. A review of the Student’s schedule at the private school indicates that she spends the vast majority of her day with related service providers. Despite testimony that there is data-tracking, daily reports/logs and quarterly progress reports, none of this information was entered into the record. Curiously, the Parent objected to the inclusion of progress reports into the record when the District sought to enter them. The 2023-24 school year began for this Student in July of 2023, surely progress notes or a quarterly progress report should have been produced by October of 2023, or at the very least subsequent to the February 2023 private school plan in evidence. The fact that the State Review Officer cited to the lack of progress records in the last hearing, and the fact that the Parent still refused and/or failed to enter any evidence into the record is even more troubling (Ex. P-I-11-12).

Progress, however, is but one factor to consider, and it is the complete dearth of testimony or evidence regarding how the related services are being provided and how the Student’s goals are being tracked or delivered during the 2023-24 school year that is even more troubling. As stated above, the Deputy Director does not personally deliver any services to the Student. In a school of only 60 students, he was unaware why this Student had been absent for 2 weeks. The record lacks any information regarding the current instruction and techniques being utilized by his teacher, paraprofessional and numerous service providers. This could have been done through reliable testimony or documentary evidence, but neither was provided to demonstrate how educational instruction is specially designed to meet the Student’s unique needs during the current school year. Surely, there must be some records to support the Deputy Director’s claim of “drastic progress.” (T:172). I find that the Parent has not met her burden under Prong II of the Burlington/Carter test regarding the private school program and her request for direct payment for tuition and related services in the amount of $319,624 is denied.

NURSING SERVICES

The record is devoid of any reliable medical evidence necessitating the provision of a 1:1 nurse at the private school. While it is undisputed that that students at the private school have

He was given an opportunity on direct to change or correct anything in his affidavit, and he declined (T:89-90). complex physical needs, the record reflects that there are only 39 students in the school building. There are 2 school nurses and 40% of the students (or approximately 15 students) have 1:1 nurses – meaning there are approximately 17 nurses in the school building. In the Student’s class, at least 2 other students have 1:1 nurses. There is currently 1 teacher, 1 teaching assistant, 6 paraprofessionals and 3 1:1 nurses assigned to the Student’s classroom. All staff are trained in seizure protocols.

There is no medical documentation supporting the need for a 1:1 nurse for this Student. She attended the private school up until February of 2023 without a 1:1 nurse. Given the complicated needs of its students, it is difficult to understand why the private school has not managed to provide a level of nursing support and staffing in its classrooms to efficiently and effectively meet the needs of its students. Again, it is troubling as to why Parent’s counsel objected to the introduction of its own nursing form, let alone why the Parent did not introduce medical documentation herself. The Deputy Director was not familiar with her medical needs and was not aware of the frequency of any seizures or the need for medical intervention.

With regard to the 1:1 nurse on the bus, again, there is no medical documentation in the record that the Student requires a 1:1 nurse. Additionally, the Parent testified that there is already a 1:1 nurse riding on the bus with her other daughter, along with the two paraprofessionals. Finally, there is no reference to the Parent’s unilateral arrangement for 1:1 nursing services and intent to seek payment from the District in her Ten-Day Notice to the District (Ex. P-J). The Parent’s request for payment of 1:1 nursing services for school and transportation in the amount of $292,556 is denied.

TRANSPORTATION SERVICES

It does not appear from the record that the Parent sought transportation to the private school from the District. There is no reference in the Parent’s Ten-Day notice of her intent to unilaterally arrange for transportation services and seek payment from the District (Ex. P-J). The Parent testified that she entered into an undated contract for transportation with [REDACTED] at an annual rate of $166,770. The Parent also testified that there is already a route to and from the Student’s home to the private school each day. In considering the equities under Prong III of the Burlington/Carter test, the record lacks prior notice to the District, and the District should not be billed twice for the same route or run. I find that the District is obligated to pay for transportation to the extent that it is not already paying for a route to and from the Student’s home. To the extent that the District does not already pay for a bus route to and from the Student’s home to the private school for the Student’s sister, the District shall be responsible for paying [REDACTED] for days that the Student actually is physically in attendance at the private school and utilizing the transportation services.

INDEPENDENT EDUCATIONAL EVALUATION

There is no evidence in the record that the Parent ever requested an IEE from the District prior to the filing of the DPC. Based upon recent caselaw from the SRO, a parent cannot circumvent the IEE process and request for the first time an IEE in a DPC. The Parent’s request for an IEE at public expense is hereby denied.

The financial obligations saddled on the Parent of this severely disabled student as a result of the exorbitant cost of the private school program and her contractual obligations with agencies recommended by the private school is unconscionable, and to the extent indicated that the record does not support the services provided to the Student is even more egregious.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED, that the Parent’s request for direct payment to the private school for tuition and related services for the 2023-24 school year is denied; and ORDERED, that the Parent’s request for direct payment for 1:1 nursing services at the private school and during transportation to and from the private school is denied; and ORDERED, that the District shall pay directly to [REDACTED] for the 2023-24 school year for transportation on days the Student is physically in attendance at the private school and the District is not already paying for transportation for her sister for the same route, upon submission of invoices and attendance records.

SO ORDERED.

DATED: November 2, 2023

Lisa Rusk

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

EXHIBIT INDEX – IMPARTIAL HEARING # 251423

PARENT EXHIBIT DATE DESCRIPTION NUMBER OF

A. Due Process Complaint IH # 251423 [REDACTED] IEP 07/05/2023 12 pages

B. 2023-24 School Year [REDACTED] Enrollment 02/07/2023 91 pages

C. Contract 2023-24 School Year [REDACTED] IEP 07/05/2023 6 pages

D. 2022-2023 School Year Transportation Agreement 09/06/2022 63 pages

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

F. Prior Written Notice Nursing Agreement 03/06/2023 12 pages

G. 2023-24 School Year [REDACTED] IEP 07/05/2023 8 pages

H. 2023-2024 School Year SRO Decision 2/27/2023 68 pages

I. 23-136 Ten Day Notice 09/1/2023 13 pages

J. 2023-24 School Year [REDACTED] Affidavit 06/20/2023 2 pages

K. 2023-24 School Year [REDACTED] Affidavit 09/21/2023 3 pages

L. 2023-24 School Year 09/21/2023 5 pages

DOE’S EXHIBITS

11. [REDACTED] Mission Statement undated 1 page DOE

12. schedule 7/5//23 23-24 1 page DOE

14. Attendance 23-24 2023-24 1 page DOE

15. 9/23 23-24 school year 1 page DOE

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] Ex. P-M was entered into evidence but later withdrawn (T:79, 85).

[5] The District attempted to enter into evidence Exs. D-1 through 15, but the Parent objected due to the District’s failure to provide 5 days’ notice (T:68-75). Proposed Exs. D-2, D-3 and D-13 were already in evidence as Parent exhibits P-H, P-F and P-B (respectively). An adjournment had been granted of an October 2, 2023 hearing date until October 5, 2023 in response to the September 27, 2023 request of [REDACTED] due to her illness. The IHO questioned why the Parent would be objecting to the admission of their private school’s progress reports and nursing forms (proposed Exs. D-4,5,6,9,10), and no explanation was provided other than the District’s late notice (T:74-75).

[6] The Deputy Director testified that the nurse is contracted through the third-party agency that works with the private school (T:214).

[7] I take judicial notice that in accordance with the NYSED Office of Teaching Initiatives website, her internship certification for students with disabilities (birth-grade 2) expired in 2019. She holds a reissued initial certification in speech and language disabilities and bilingual education extension (eservices.nyded.gov/teach/certhelp/search- cert-holder).

[8] The Parent subsequently testified that the Student was absent because the school found lice and then she was sick and then the Jewish holiday (T:243).

[9] He testified that the private school provides makeup related services during school breaks (T:206).

[10] No percentile scores were provided in the report (EX. P-B-14-15).

[11] When asked about the delivery of music therapy, he stated “that’s beyond my scope. That’s more of a related service, so I am not aware of that.” (T:141-43). He did testify further that the Student enjoys MT, and it is a motivator for her (T:142-43).

[12] The Deputy Director testified that she has had a 1:1 nurse at the private school since at least February 2023, although the supplementary aids and services on the private school’s IEP lists school nurse and not 1:1 nurse (T:198, Ex. P-B-89).

[13] Although the schedule says 30 minutes, the Director testified that students receive 30 minutes to an hour of group instruction per day (T:98). He testified that the students also receive academic instruction during push in related services and from the paraprofessional (T:96-97).