Orchard Park Central School District, Impartial Hearing Decision

Cover Sheet

FINDINGS OF FACT & DECISION

Case No.: 605068

Student’s Name: Redacted (“Student”)

Date of Birth: Redacted

District: [REDACTED] Central School District

(“District”)

Hearing Request by: Redacted (“Parent”)

Hearing Dates: Not applicable

Actual Record Close Date: 02/02/2024

Hearing Officer: Ned H. Kassman, Esq

NAMES AND TITLES OF PERSONS WHO SUBMITTED CLOSING BRIEFS:

For the Student:

Redacted

For the Department of Education:

Redacted

On August 10, 2023, Parent of Student filed a due process complaint (“DPC”) under the Individual with Disabilities Education Act (“IDEA”) [20 U.S.C. §1415(f)] and Section 4404(1) of the New York State Education Law against the Orchard Park Central School District (“[REDACTED]”), which was assigned case number 605068. I was appointed as Impartial Hearing Officer (“IHO”) on August 14, 2023. After multiple conferences and upon consent of the parties, it was decided that a Hearing would not occur but rather, this IHO would render a decision based upon brief s submitted by the parties^[1]. Parent alleged in her DPC (JE 1) that [REDACTED] denied the Student a Free Appropriate Public Education (“FAPE”) because [REDACTED] refused to permit Student’s Medicaid funded private duty nurse (“MFPDN”) to provide services to the Student during the school day and during transportation to and from Student’s school.

Four Joint Exhibits 1-4 were entered into evidence pursuant to agreement of the parties and the Parent and [REDACTED] closing briefs are made a part of the record herein as IHO Exhibits I, and II. Additionally, the compliance date for issuing a decision in this proceeding has been extended.

BACKGROUND AND POSITIONS OF THE PARTIES

Redacted (JE 4, IHO Ex. I) Student’s classification, disabilities and eligibility for special education services and supports is undisputed by the DOE.

The sole issue at bar in this case is that Parent asserts that the DOE failed to provide Student with a FAPE for the 2023-2024 school year because he [REDACTED] refused to permit the Student’s MFPDN provide the services required by the IEP.

As relief for the alleged FAPE violation(s), Parent seeks a declaratory finding that the [REDACTED] violated Student’s right to a FAPE for the 2023-2024 school year and that this IHO issue an order requiring the [REDACTED] to use Student’s MFPDN to provide Student with the services in school and during transportation to and from the school instead of an LPN hired by the [REDACTED].

The DOE appeared by Notice of Appearance Letter dated August 15, 2023 (JE 2) and filed a Response to the Due Process Hearing Request by letter dated August 21, 2023 (JE 3).

As set forth above, the parties introduced four joint exhibits and submitted closing briefs. A hearing was not held in this matter by agreement of the parties.

UNDISPUTED FINDINGS OF FACT

Student’s multiple diagnoses and classification are undisputed as is his entitlement to a 1:1 LPN in school and during transportation to and from school.

It is similarly undisputed that on June 22, 2023, the [REDACTED] Committee on Special Education (“CSE”) convened to develop an IEP for the Student’s transition to school (“June CSE Meeting”). Due to undisputed multiple disabilities and medical conditions, the CSE recommended inter alia an agency placement in a 12:1:4 special class at Redacted along with the related services of occupational therapy (“OT”), physical therapy (“PT”) and vision services (JE 4). Additionally, because of the Student’s unique medical needs, which require monitoring of Redacted, the CSE recommended a full time 1:1 LPN nurse for the Student both for in school and on the bus (Id.). It is also undisputed that the SCHOOL DISTRICT was and remains willing and able to provide a qualified LPN through the [REDACTED]’s recommended placement [REDACTED] to satisfy its obligation to provide Student a FAPE. The appropriateness of these recommendations is also undisputed; rather, the Parent’s disagreement is with respect to the CSE’s authority and discretion to determining the LPN responsible for implementing the 1:1 nursing services.

BURDEN OF PROOF AND EVIDENTARY STANDARD

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 a 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 (N.Y.S. Educ. Law § 4404(1)(c)).

The burden of proof has two components, the burden of production, in which the party with the burden is required to put forth evidence in the form of witness testimony and documentary evidence; and the burden of persuasion, which is a standard of proof that determines the amount of evidence the party shouldering that burden needs to provide in order for a judge to reach a particular determination.

In impartial hearings, the standard of proof is a preponderance of the evidence. See Cerra v. Pawling Cent. Sch. Dist. 427 F.3d 186 (2d Cir. 2005). Under the preponderance of evidence standard, the burden of persuasion is met when the party convinces the fact finder that there is a greater than 50% chance that the claim is true.

The 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 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 W 1066206, 137 S.Ct. 988, 69 IDELR 17 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether 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 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).

In addition to the foregoing, the District has a non-delegable duty to educate Student in the least restrictive environment (20 U.S.C § 1412[a][5][A]) in order to implement its non-delegable duty to enable a child to make progress in light of the child’s circumstances Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 W 1066206, 137 S.Ct. 988, 69 IDELR 17 (U.S. Mar 22, 2017).

Here, the [REDACTED] must establish by a preponderance of the evidence that Student was provided with a FAPE and in the context of this e case, means that a demonstration is required that the nursing services were provided or wiling to be provided in a manner consistent with the provision of a FAPE. Since it is undisputed that the [REDACTED] was willing and able to provide the LPN for Student, the only issue is whether it is required to provide Student with his MFPDN in order to satisfy [REDACTED]’s obligations to provide the Student with a FAPE.

In support of its opposition, to Parent’s assertions, [REDACTED] cites to SRO decision 22-037 Application of the Bd. of Educ. of the E. Ramapo Cent. Sch. Dist (IHO Ex. II). It argues that this SRO decision is precisely on point in holding that the “District has the authority and discretion to determine how the Student’s recommended nursing services are to be provided and as a result, the Parent’s request should be denied in its entirety (Id.)

Generally speaking SRO decisions do not constitute precedential authority that this IHO is obligated to follow pursuant to 8 NYCRR 279.12(a). However, it is well settled that I am required to adhere to and follow applicable rules, regulations statutes and applicable court and Second Circuit authority cited by SRO’s. In the instant case, the SRO cites to the controlling authority in the Second Circuit case of Ventura de Paulino v. New York City Dept. of Educ. 959 F. 3d 519,534 (2d Cir. 2020), cert. denied 141 S. Ct. 1075 (2021) reh’g denied 141 S.Ct. 1530 (2021) to establish that:

“It is within the district’s authority to determine how to provide the student’s educational programing including which personnel shall provide related services such as the 1:1 nursing”.

Additionally, the applicable Medicaid Regulation states in relevant part, as follows:

18 CRR- NY 505.8 (a) where nursing care may be provided.

“Nursing services, as medically needed may be provided to a medical assistance recipient … and with respect to a child receiving nursing services pursuant to an individualized education program … also in a school …

This regulation is consistent with the finding in de Paulino that there is absolutely no requirement to use specific personnel Medicaid funded or otherwise and the District has complete discretionary authority on whether to permit the MFPDN to attend to the child or not. Additionally, this IHO has provided over numerous conferences in this case where extensive discussions between the [REDACTED] and Parent’s Advocate occurred and the distrcit’s discretionary authority is necessary in part, due to the complex issue of insurance, liability and quality control over non district personnel, which are important concerns to the [REDACTED] and are found to be reasonable, pragmatic and justifiable concerns.

Based on the foregoing, the [REDACTED] has established that it has been willing and able to provide Student with a FAPE and the refusal to permit Student’s MFPDN to implement the services set forth in the IEP (JE4) does not constitute a denial of a FAPE to the Student.

The Parent asserts the following in her closing brief (IHO Exhibit I): That there are three issues at bar in this case: 1) Whether the parent of a Medicaid recipient has the right to utilize their private duty nurse in the school to provide skilled nursing services pursuant to an IEP; 2) Whether an IEP must include clear and detailed individualized care plan outfling the specific nursing services required for the Student; and 3) Whether the parent has the right to ensure a child is provided with nursing services that meet the appropriate standard of care when placed for educational series (IHO Ex. I p.2-3)

The last two issues are not before this IHO as the only issue raised in the DPC (JE I) is Parent’s ability to utilize the MFPDN to implement the services in Student’s IEP (Id.). Moreover, not only are the issues not before the Court, but certifications for LPN’s are governed by State regulations and are uniform in nature. Since the second and third issues are not before the Court and there is no allegation of an [REDACTED] nurse’s breach of duty, those issues are dismissed as not being before this IHO.

Next, I turn to stare decisis or precedential authority cited by Parent’s advocate. The cases cited by him, Cedar Rapid Community School District v. Garret F. 526 U.S. 66 (1999); William Penn SD et. al v. Pa Dept. of Education et. al 243 A. 3d 252(Pa. Cmmw Ct. 2020); S.H. v. Lower Merion School District 729 F. 3d 248; Winkleman v. Parma City School Dist. 550 U.S. 516 (2007); Detsel v. Sullivan 859 F. 2d 58 (2nd Cir. 1990); Skubel v. Furoroli 113 F. 3d 330 (2nd Cir. 1997); 42 C.F. R. 440.80 and The Center for Medicare and Medicaid Services- State Medicaid Manual Sect. 4310(B) are either not on point, taken out of context or not probative of the issue at bar.

Cedar is irrelevant and not probative of the issue at bar because it is undisputed that schools may be required to provide nursing services. William Penn and S.H. are not. controlling and of limited precedential authority since they are not Second Circuit cases and there is up to date relevant controlling authority in the Second Circuit on the subject at bar. Winklemann is also not probative of a district’s discretionary authority to provide related service providers of their choosing. Detsel is similarly unhelpful as it is undisputed that Medicaid services are not limited to a recipients home. It should be noted that the Advocate’s interpertation of Detsel is not consistent with applicable cited Medicaid regulations, which state that services relating to an IEP may be provided (emphasis added) and not can elect to use their Medicaid nurse in school, which constitutes a misinterpretation of the applicable regulation.

Similarly, premises for which Skubel 42 CFR 440.80 and The Center for Medicare and Medicaid Services are cited by the Parent’s Advocate are undisputed but should be read both within the context of the regulation cited earlier in this decision, to wit; that services may be provided, and that they must also be read in context of applicable Second Circuit law that provides a school district with discretion in providing related service providers. Based on the foregoing, the Parent’s Advocate’s precedential authority is found to be unpersuasive and not probative or germane to the issue at bar in this case.

Therefore, it is found that the [REDACTED] has provided Student with a FAPE.

EQUITABLE CONSIDERATIONS

It is undisputed that pursuant to my authority as an IHO, I have equitable powers consistent with my authority in among other things the identification, evaluation and program and placement of child, including the issue of the duty of the district to permit Parent to use her MFPDN to satisfy IEP requirements of a 1:1 LPN in school and in transportation to and from school for the Student.

I have no doubt that Parent is very concerned about Student and wants the best for him. I also have no doubt of the tremendous anxiety and fear of the unknown with relation to an unfamiliar LPN that may have charge of her medically fragile son in the hours that he is not home and under the watchful and diligent eye of his Parent. Parent’s Advocate has also done a competent job conveying and expressing the Parent’s concerns (IHO Ex. II).

In addressing the equitable concerns of the parties, I must address potential prejudice to both parties as well as other factors that may warrant a finding based on the balance of the equities. Here, although well-articulated and reasonable, Parent’s concerns are unfounded as there is nothing in the record to suggest that the [REDACTED] will do nothing but provide a qualified and licensed LPN as consistent with Student’s IEP (JE4).

Moreover, to allow Parent to use her MFPDN is not only inconsistent with applicable law but will cause substantial prejudice to the district in terms of obtaining insurance, in terms of potential liability and for a variety of other reasons that necessitate the maintenance and control over employees and independent contractors who provide services to its Students.

Finally, in the event that an issue arises with the LPN provided by the School, there is nothing in this decision that would prevent the Parent or Student from exercising their rights under the applicable law. Therefore, and based on the foregoing, Parent has failed to successfully raise any issues that would warrant a favorable decision predicated on equitable considerations.

Orders

WHEREAS the [REDACTED] Central School District iss found to have provided Student with a FAPE, accordingly:

IT IS HEREBY ORDERED that all of Parent’s claims are dismissed for the reasons set forth herein.

Dated February 2, 2024

Ned Kassman_________________

Ned Kassman

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.

JOINT EXHIBITS (Parent and District)

No. Description Date Pages

1 DPC Letter 08/10/2023 2

2 Notice of Appearance Letter 08/15/2023 3

3 District Response to DPC 08/21/22023 2

4 Student IEP 06/22/2023 15

IHO Evidence

I Parent Advocate Brief 1/19/2024 7

II Districts Memo of Law 5/31/2023 7

Footnotes

[1] The Undisputed Joint Exhibits as set forth in DOE’s closing brief in support consist of Joint Exhibit (“JE”) 1, the Parent’s DPC; JE 2, [REDACTED] Notice of Appearance Letter; JE 3 the [REDACTED]’s Response to DPC and JE 4 6/22/2023 IEP; all of which are entered into evidence.