STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-228
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liberty & Freedom Legal Group, attorneys for petitioner, by Richa Raghute, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Thomas W. MacLeod, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund the costs of her daughter's private nursing services delivered by B&H Health Care, Inc. (B&H) for the 2023-24 extended school year. The district cross-appeals the issue of the appropriateness of the 1:1 nursing services provided by B&H. The appeal must be sustained in part. The cross-appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student has received special education programs and services as a student with multiple disabilities and her eligibility for special education is not in dispute (Parent Ex. C at p. 1; see 34 CFR 300.8[c][9]; 8 NYCRR 200.1[zz][10]). She has received diagnoses of cerebral palsy, hydrocephalus, oropharyngeal dysphagia, sialorrhea, hypoglycemia, osteopenia, and ascending aortic arch dilation, and she requires a gastric/jejunal tube (G/J tube) for feeding (id. at pp. 11-12, 41). The student is nonverbal and non-ambulatory, and has attended the International Academy for the Brain (iBrain) since 2020 (Parent Exs. A at p. 3; C at p. 11; L ¶ 10).
A CSE convened on February 15, 2023 and created an IEP for the student with an implementation date of February 27, 2023 (Parent Ex. C at pp. 1, 44). The February 2023 CSE recommended that the student receive 12-month services consisting of a 12:1+(3:1) special class in a specialized school with three periods per week of adaptive physical education, five 60-minute sessions per week of individual occupational therapy (OT), five 60-minute sessions per week of individual physical therapy (PT), five 60-minute sessions per week of individual speech-language therapy, one 60-minute session per month of parent counseling and training, daily, full-time individual paraprofessional services for health, ambulation, safety, and feeding, the daily use of a dynamic display speech generating device, and one 60-minute session per week of assistive technology services (id. at pp. 34-36). The CSE also recommended special transportation from the closest safe curb to school, 1:1 paraprofessional services, a lift bus, and a wheelchair (id. at pp. 40-41).
At the February 2023 CSE meeting, the parent expressed her concerns regarding the lack of music therapy services, but the district determined that such services would not be included in the student's IEP (Parent Ex. C at p. 10). The district considered nursing services for the student but informed the parent that it required additional medical paperwork that the parent agreed to provide (id. at p. 44). Likewise, the district considered the student's vision needs but indicated that it required updated ophthalmological paperwork in order to recommend vision education services (id. at pp. 4, 44).
By letter dated June 20, 2023, the parent, through her counsel, informed the district of her disagreement with the student's February 2023 IEP (see Parent Ex. B). The parent noted that the district had not yet sent her a timely prior written notice or school location letter, preventing her from being able to assess the appropriateness of the district's proposed placement (id. at p. 2). The parent also reminded the district that the student's prior placement in a specialized public school had not been appropriate for the student (Parent Exs. B at p. 2; C at pp. 43-44). Due to the district's alleged failure to provide the student with a FAPE for the 2023-24 school year, the parent stated her intention to unilaterally place the student at iBrain at the district's expense (Parent Ex. B at p. 2). She also requested that the CSE reconvene (id.).
The student attended iBrain during the 2023-24 school year (Parent Ex. L ¶ 10). In November 2023, a number of student medical forms were completed, and iBrain reported that the student required a full-time nurse for "the preparation of feeds, ostomy management, disconnection and reconnection of the ostomy, as well as periodic flushing of the J tube" (Parent Ex. J). The report further noted the necessity of a nurse for transportation and constant monitoring of the student's tube and ostomy (id. at p. 12). On November 29, 2023, the parent entered into an agreement with B&H for the provision of 1:1 nursing services for the student for the 2023-24 school year (Parent Ex. K at pp. 1, 9).
The CSE reconvened on February 28, 2024, and developed an IEP for the student with an implementation date of March 18, 2024 (Parent Ex. D at pp. 1, 72). The district determined that the student required nursing services for G/J-tube management, food preparation and administration, ostomy management, and daily general wellness checks (id. at pp. 39-42). The February 2024 CSE recommended that the student receive 12-month services consisting of a 12:1+(3:1) special class in a specialized school with three periods per week of adaptive physical education, five 60-minute sessions per week of individual OT, five 60-minute sessions per week of individual PT, five 60-minute sessions per week of individual speech-language therapy, one 60-minute session per month of parent counseling and training, daily, full-time individual school nurse services, daily, full-time individual paraprofessional services for health, ambulation, safety, and feeding, the daily use of a dynamic display speech generating device, and one 60-minute session per week of assistive technology services (id. at pp. 62-64). The February 2024 CSE also noted the necessity of special transportation from the closest curb to the school with the assistance of an individual paraprofessional, a lift bus, and wheelchair (id. at p. 68).
A. Due Process Complaint Notice
In a due process complaint notice dated July 29, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year due to the district's failure to recommend 1:1 nursing services, vision education services, and music therapy (Parent Ex. A at pp. 4-5). The parent noted that while the February 2024 CSE recommended nursing services, the district's subsequent school location letter made no reference to nursing services (id. at p. 5). The parent stated that the student received the necessary services at iBrain, including a 1:1 nurse (id. at p. 6).
For relief, the parent sought a finding that the district had denied the student a FAPE for the 2023-24 school, a finding that iBrain was an appropriate placement for the student, and an order requiring the district to fund 1:1 nursing services for the student provided by B&H (Parent Ex. A at p. 6).
B. Impartial Hearing Officer Decision
An impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on October 9, 2024, and concluded on December 6, 2024, after four days of proceedings (Oct. 9, 2024 Tr. pp. 1-13; Oct. 17, 2024 Tr. pp. 1-23; Nov. 6, 2024 Tr. pp. 24-95; Dec. 6, 2024 Tr. pp. 96-195).[1]
At the October 17, 2024 hearing, counsel for the parent clarified that the parent was only seeking district funding for the 1:1 nursing services provided by B&H and the parent was not seeking district funding or reimbursement for the student's tuition at iBrain for the 2023-24 school year (Oct. 18, 2024 Tr. pp. 8-9).
In a decision dated March 4, 2025, the IHO found that the district denied the student a FAPE for the 2023-24 school year, that the parent's unilateral placement was appropriate, and that equitable considerations did not weigh in favor of granting the parent's requested relief (see IHO Decision).
Regarding the denial of a FAPE, the IHO based his finding on the district's failure to properly evaluate the student's medical needs, missing paperwork notwithstanding (IHO Decision at p. 9). According to the IHO, the district had an affirmative obligation by statute as well as its own standard operating procedures manual to evaluate the student regardless of what paperwork the parent provided (id.). The IHO found that the district further denied the student a FAPE by failing to recommend vision education services despite the fact that the district itself noted that the student had received a diagnosis of cortical visual impairment (CVI) (id. at p. 10). However, the IHO declined to find a substantive denial of a FAPE due to the recommended 12:1+(3:1) class size, the failure to recommend a nonpublic school placement, and the lack of a music therapy recommendation (id. at pp. 7-10).
The IHO determined that iBrain was an appropriate unilateral placement that "address[ed] the unique needs of [the student] and enable[ed] her to derive educational benefits from the instruction" (IHO Decision at p. 12). Although the IHO was concerned with the lack of specificity of some of the testimony from iBrain's representative at the impartial hearing, the IHO nonetheless found that the testimony taken in conjunction with the documentation provided by the parent was enough to find that iBrain was appropriate by a preponderance of the evidence (IHO Decision at p. 12; Dec. 6, 2024 Tr. pp. 123-124; 127). While the IHO did not specifically address nursing services, he generally found that iBrain was "an appropriate placement with supports that addresses the unique needs of Student and enable her to derive educational benefits from the instruction" (IHO Decision at p. 12).
Turning to the consideration of equitable factors, the IHO found that the parent had predetermined to not cooperate with the CSE to such an extent that no relief was warranted (IHO Decision at p. 14). Specifically, the IHO noted that the parent failed to recall specific details of how B&H's nursing service was provided to the student (id. at p. 13). Further, although the parent had raised concerns about the lack of nursing services in the student's IEP during the February 2023 CSE meeting, she did not enter into an agreement for 1:1 nursing services until November 2023 (id. at pp. 13-14). Combining these factors with the parent's failure to provide the district with the necessary medical paperwork, the IHO determined that the parent obstructed the CSE to such a degree that no relief was warranted (id. at p. 14).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that the recommended class size and lack of music therapy in the student's IEP did not, in themselves, constitute individual denials of a FAPE for the 2023-24 school year. The parent noted that the student enjoyed a reduced class size and music therapy at iBrain, but the district never explained at the impartial hearing how its proposed IEP provided for the same conditions and services.
The parent further alleges that the IHO erred in determining that equitable considerations weighed against granting the parent's requested relief. Specifically, the parent objects to the IHO's characterization of her behavior toward the February 2023 CSE as her being predetermined to not cooperate. The parent notes that she raised concerns regarding the student's nursing needs at the February 2023 CSE meeting. While the parent was not able to locate a private nursing service until November 2023, she argues that this is not evidence of a predetermination to not cooperate. The parent also argues that, in any event, a predetermination to not cooperate is not, on its own, sufficient to deny all of the parent's requested relief.
By answer and cross-appeal, the district argues that the IHO erred in finding the 1:1 nursing services provided by B&H to be appropriate. The district notes that none of the evidence offered at the hearing included reports or notes completed by the student's nurse. Additionally, no one at the impartial hearing was able to specifically describe how the nursing services were provided to the student. Given this lack of specificity, the district argues that the parent's evidence was insufficient to support a finding that the 1:1 nursing services offered by B&H were appropriate.
In an answer to the district's cross-appeal, the parent argues that documentation submitted during the impartial hearing, including quarterly progress reports and an education plan prepared by iBrain, is sufficient to support a finding that the student's 1:1 nursing services were appropriate. The district asserts that the parent's answer to the cross-appeal does not comply with pleading requirements and should be disregarded.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
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]).[2]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
A.Scope of Review
Initially, as neither party has appealed from the IHO's determinations that the district failed to meet its burden to prove that it offered the student a FAPE for the 2023-24 school year or that iBrain was an appropriate unilateral placement for the student, these findings are final and binding on the parties and will not be further discussed (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]). While the parent appeals from portions of the IHO's determination that certain elements of the student's IEP did not individually deny the student a FAPE, it should be noted that the IHO overall determined that the district denied the student a FAPE for the 2023-24 school year. The parent initiated the instant due process proceeding in order to obtain funding for the student's unilaterally obtained 1:1 nursing services, so no further findings regarding a denial of a FAPE are necessary for the parent to prevail under the FAPE aspect of the Burlington/Carter analysis (Oct. 17, 2024 Tr. at p. 9; Parent Ex. A at p. 6). Accordingly, it is unnecessary to further discuss the issue of whether the district offered the student a FAPE for the 2023-24 school year. The parent also does not seek funding or reimbursement for the student's tuition at iBrain for the 2023-24 school year (Oct. 17, 2024 Tr. pp. 8-9; IHO Decision at p. 14). Thus, the only issues left to be resolved are the district's cross-appeal regarding the appropriateness of the 1:1 nursing services provided by B&H and whether, as the parent asserts, the IHO erred in finding that equitable considerations warranted a total reduction of any relief related s to the 1:1 nursing services provided by B&H.
B. Unilaterally Obtained Services
In this matter, the student has been parentally placed in a nonpublic school and the parent does not seek tuition reimbursement from the district for the cost of the student's tuition at iBrain. Rather, the parent alleged that the district failed to offer the student a FAPE for the 2023-24 school year and, as a self-help remedy, the parent unilaterally obtained private 1:1 nursing services from B&H for the student without the consent of school district officials, and then commenced due process to obtain remuneration for the costs thereof. Generally, districts that fail to comply with their statutory mandates to provide special education can be made to pay for special education services privately obtained for which a parent paid or became legally obligated to pay, a process that is essentially the same as the federal process under IDEA. Accordingly, the issue in this matter is whether the parent is entitled to public funding of the costs of the private nursing services. "Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the . . . dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]).
The parent's request for district funding of privately obtained 1:1 nursing services must be assessed under this framework. Thus, a board of education may be required to reimburse parents for their expenditures for private educational services they obtained for a student if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Carter, 510 U.S. 7; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).[3] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
Turning to a review of the appropriateness of the unilaterally obtained 1:1 nursing services, the federal standard for adjudicating these types of disputes is instructive.
A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). 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). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational 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).
1.The Student's Needs—Nursing
The district argues in its cross-appeal that the parent did not demonstrate the appropriateness of the 1:1 nursing services at the impartial hearing under the Burlington-Carter standard. In order to assess the appropriateness of the student's 1:1 nursing service provided by B&H, it is first necessary to discuss the student's medical needs in the context of her other educational needs and the iBrain program she attended.
In his affidavit, the iBrain deputy director testified that the student "began attending [the private school]iB[rain] in 2020" and that she was "non-verbal and non-ambulatory" with "highly intensive management needs" (Parent Ex. L ¶¶ 1, 10, 11). The deputy director indicated in his affidavit that the student was enrolled in "a 6:1:1" classroom and "require[d] frequent breaks, repetition, and increased processing time in order to gain meaningful benefit from her related service sessions" that included OT, PT, speech-language therapy, vision education services, and music therapy, as well as assistive technology services (id. ¶¶ 12, 13).
The deputy director testified in his affidavit that the student "received 1:1 academic instruction" each day, along with "academic instruction" provided "in small groups throughout the day" (Parent Ex. L ¶ 14). The deputy director further testified that the student's 1:1 paraprofessional supported the student "to help her participate and focus during academic and related services sessions," as well as to assist her with "activities of daily living" (id. ¶ 16). As for related services, the deputy director testified that the student received "a combination" of push-in and pull-out services during the 2023-24 school year (Dec. 6, 2024 Tr. p. 122).
The February 2023 iBrain report and education plan (iBrain report) indicated the student "ha[d] a G/J-tube," and "require[d] a high intensity of individualized support" (Dist. Ex. 8 at p. 1). In addition, the report included that the student demonstrated "profound deficits in the areas of self-care, mobility, and social function" (id. at p. 26). The report stated that the student "require[d] a 1:1 paraprofessional to ensure her participation in and ability to benefit from the educational environment" (id. at p. 1).
According to the iBrain report, the student "demonstrate[d] awareness of sounds," was "persistent when she [was] asked to reach for objects," and "communicate[d] most successfully [] with familiar partners" (Dist. Ex. 8 at pp. 1, 2, 4). The report also indicated that the student demonstrated a "fleeting" attention span when "she [was] not interested" in activities, had difficulty with turn-taking, required "consistent redirection, refocusing, sensory breaks, and all types of prompting," and required "maxim[um] assistance" with "all activities of daily living" (id. at pp. 2, 3, 4, 9). The student used an augmentative alternative communication (AAC) device with speech-generating software that she accessed "via head[-]tracking" (id. at p. 19). The report included that the student primarily communicated through the use of "facial expressions, reflexive vocalizations, gestures, and" an AAC device (id. at p. 23).
In terms of the student's vision, the iBrain report indicated that the student "ha[d] no visual field limitations" and that "[m]ost but not all of [the student's] CVI characteristics ha[d] resolved at th[at] time" (Dist. Ex. 8 at pp. 15-16). Further, the iBrain report included that the student's "visual functioning [was] approaching the near-typical category of the CVI spectrum" (id. at p. 16).
According to the iBrain report, the student's "1:1 paraprofessional [] support[ed] her medical, physical, cognitive, and sensory needs throughout the day," including "set-up of classroom activities" and "frequent repositioning" (Dist. Ex. 8 at pp. 8, 10). The student was reported to be "dependent in all areas of self-care such as mobility, feeding, dressing, handwashing, toileting, and toothbrushing" (id. at p. 11). The iBrain report also indicated that the paraprofessional assisted the student with her "use [of] adapted devices and assistive technology" as well as her "attention to tasks," and "sensory regulation" (id. at pp. 9, 11). Additionally, the iBrain report included that the student required consistent supervision from her paraprofessional to prevent her from "putting any materials in her eyes or her mouth" (id. at pp. 4, 10). According to the February 2023 report, the student's "poor safety awareness and impulsive movement" necessitated "constant 1:1 supervision" (id. at p. 13).
Regarding the student's medical needs, the iBrain report included that the paraprofessional "monitor[ed] [the student's] positioning" to "avoid any pressure on [her] J-tube" (Dist. Ex. 8 at p. 36). The iBrain report included an individualized health plan with "[n]ursing [i]nterventions" that called for the student's paraprofessional to monitor the student to prevent injury, prevent exposure to latex, monitor the student for secretions during feeding and bring to the nurse if needed, and monitor the student's skin integrity (id. at pp. 43-47). The iBrain report's health plan also included nursing interventions to: prevent injury at school, such as "[o]bserve fall precautions" and "[d]evelop [and] implement an emergency evacuation plan"; address a mild latex allergy by administering medication if the student had a reaction; prevent aspiration and maintain a clean "stomy site" by using a nurse during feeding to monitor and clean the student's tube site; and maintaining skin integrity and nutrition using a nurse as needed to monitor and assist as necessary with the student's activities of daily living (id. at pp. 43-47).
The deputy director testified that in February 2023, the iBrain "alerted the CSE team to [the student's]" increasing "health needs" that necessitated "skilled nursing" (Parent Ex. L ¶ 21). During the hearing, the deputy director described the student's changing health needs that brought about the recommendation for individual nursing including that the student "pull[ed] on her G tube" and "put[] things in her mouth" without "a gag reflex," which "cause[d] a lot of distress to" the student and staff "would find large objects in her stomach" (Dec. 6, 2024 Tr. pp. 136-37). According to the deputy director, this represented "a very big safety concern," which made it "clear" to the deputy director shortly after he started at iBrain in February 2023 "that [the student] needed a one[-]to[-]one nurse" that "monitor[ed] her throughout the day" (Dec. 6, 2024 Tr. pp. 137-38).
Next, the deputy director testified that the paraprofessional was unable to "do anything from a treatment perspective" if the student consumed an object, or "accommodate" the student if she "pull[ed] on her G tube" as it was outside "their scope [of] practice" (Dec. 6, 2024 Tr. p. 138). When asked how the student's needs were addressed given that the student had a G-tube in prior school years while at iBrain, the deputy director testified that the student "should have had a nurse" (Dec. 6, 2024 Tr. pp. 138-39). The deputy director further confirmed that while he noticed the need for a nurse in February 2023, a nurse was not assigned to the student until November 2023 (Dec. 6, 2024 Tr. p. 139).
On November 6, 2023, the student's physician completed a medical accommodations request form in which she indicated the student was "on continuous tube feeding" (Parent Ex. J at p. 6). Further, the physician indicated the student needed constant supervision as she "swallow[ed] foreign objects" and "need[ed] ongoing monitoring to prevent this" along with "monitoring for abdominal distention" and "monitoring of tube feedings" (id.).
According to the deputy director in his affidavit, the student was assigned "a 1:1 nurse" beginning November 2023 "to help attend to her health and medical needs" (Parent Ex. L ¶ 17). The deputy director included in his affidavit that the student was "totally dependent on her nurse" for care of and feeding through "her G-J tube," "perform venting when necessary," and "attend to all of [the student's] other health and medical needs" (id. ¶ 17).
iBrain updated the student's report and education plan in January 2024, and compared to the February 2023 report, the student's needs remained much the same with the exception of the student's health and vision needs (compare Parent Ex. E with Dist. Ex. 8).[4] The January 2024 iBrain report indicated that the student required "increased levels of nursing intervention" and indicated that she "ha[d] recently started with a 1:1 nurse" (Parent Ex. E at p. 1). In the January 2024 iBrain report, the student's physical therapist indicated that during PT, "[t]he nurse monitor[ed] her ostomy sites for signs of infection, leakage, and provide[d] dressings and interventions," and the student's music therapist included that the nurse "support[ed]" her "to engage safely in music therapy sessions" (id. at pp. 29, 34).
The January 2024 individual health plan included in the iBrain report indicated that the student received both 1:1 paraprofessional and 1:1 nursing services at the time (Parent Ex. E at p. 39). According to the January 2024 individual health plan, the student "put[] items in her mouth that [were] not food and ha[d] a history of swallowing items like socks and blankets leading to aspiration with past hospital stays" (id.). The January 2024 health plan further identified that the student's "medication/treatment" included a "flush" of the student's gastrostomy "after feed disconnection," "venting for bloating" as needed, and "[s]kin checks and diaper changes every [three] hours" (id.).
Specifically, the January 2024 individual health plan included that the student's 1:1 nurse would "monitor ostomy sites"; prepare, administer, and discontinue "feeds"; "flush[]" the student's ostomy and "perform venting" as needed; "accompany" the student and provide "professional care of her ostomy" during transport and transfers; and "perform daily wellness checks" (Parent Ex. E at pp. 39-43). In addition, the individual health plan indicated that the 1:1 nurse would provide daily reports on the student's status and "any changes to the student's baseline" to the school nurse (id. at pp. 40, 42). The individual health plan also included a variety of supports that would be provided by the 1:1 paraprofessional (id. at pp. 39-43).
The January 2024 iBrain report and education plan included a variety of human, environmental, and material supports to address the student's academic, social, and physical management needs such as 1:1 paraprofessional services to assist with set-up of materials; a structured classroom with a small class size and limited distractions; access to assistive technology and adapted materials; 1:1 nursing services to care for the student's ostomies; and the provision of sensory breaks (Parent Ex. E at pp. 37-38). In addition, the student's goals were updated in the January 2024 iBrain report and education plan (compare Parent Ex. E at pp. 45-58 with Dist. Ex. 8 at pp. 48-64).
The parent testified that the student's health needs increased during the 2023-24 school year because the student's "tube" frequently "c[ame] out" of its "connector" or the student's "belly [] extend[ed] too much" and she needed the assistance of "the nurse every 15 to 20 minutes" (Dec. 6, 2024 Tr. pp. 168-69). The parent also testified that during the 2023-24 school year the student's health conditions affected her ability to participate in school because she was "always in the nurse[']s room," as she did not have a "nurse with her all the time" (Dec. 6, 2024 Tr. pp. 169-70).
2.Appropriateness of 1:1 Nursing Service
As discussed above, given the statements of the student's needs contained in her 2023 and 2024 IEPs, as well as her medical evaluation from November 2023, it is clear that the student required 1:1 nursing during the 2023-24 school year to meet her unique needs (Parent Exs. C at pp. 11-12; D at pp. 7, 23-27; J at pp. 6-7, 10). Moreover, in contrast to the district's argument that the hearing record did not contain adequate information concerning delivery of the nursing services, as recounted above, the hearing record also contains testimony from the deputy director and information contained in the iBrain education plans and its nursing plan that further describe the student's health needs, how they became more significant over time and how the nursing services would address each area of health need specifically (see Parent Exs. E, L; Dist. Ex. 8) Moreover, the January 2024 iBrain report and education plan included observations by the student's physical therapist and music therapist concerning how the nurse addressed the student's health needs at iBrain (Parent Ex. E at pp. 29, 34). In addition, , the hearing record contains a Nursing Service Agreement between the parent and B&H, signed by the parent on November 29, 2023, for individual private duty nursing services to be delivered to the student during the school day and during transport (Parent Ex. K). Thus, although the IHO did not make any independent findings regarding the appropriateness of the privately-obtained 1:1 nursing services from B&H, the hearing record demonstrates that the student has uncontested medical needs, the parent contracted for the provision of 1:1 nursing services to address such needs, iBrain created a nursing plan and the January 2024 iBrain report and education plan also describes how some representative nursing services were delivered to the student at iBrain. As a result, the district's arguments as presented in its cross-appeal are unavailing and must be dismissed.
C. Equitable Considerations
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including 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]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
At the outset, I note that the analysis of a unilateral placement is "a binary inquiry"; in other words, it must be determined whether a unilaterally obtained placement or service is appropriate or not under the totality of the circumstances, and an award of relief may not be reduced on the basis that a placement or service was somehow "partially appropriate" (see A.P. v. New York City Dep't of Educ., 2024 WL 763386 at *2 [2d Cir. Feb. 26, 2024] [holding that the IHO should have determined only whether the unilateral placement was appropriate or not rather than holding that the parent was entitled to recover 3/8ths of the tuition costs because three hours of instruction were provided in an eight hours day]). Accordingly, an IHO should only proceed to an equitable considerations analysis, taking into account the factors described above, once he or she has determined the appropriateness of a placement or service and must now decide whether the equities weigh in favor of the parent obtaining full relief or a reduced award. Here, it appears that the IHO erred by commingling factors relevant to appropriateness with those more suited to weighing the equities of an award of full relief to the parent; however, he ultimately determined that equitable considerations weighed against any award.
Specifically, the IHO held that equitable considerations did not weigh in favor of the parent due to (1) the parent's failure to remember specific details of the student's nursing services and (2) the fact that the parent did not secure nursing services for the student until November 2023 despite informing the February 2023 CSE that such services were necessary (IHO Decision at pp. 12-14).
Turning to the parent's testimony at the impartial hearing, it is true that she appeared to have difficulty remembering certain details, such as the date the student began attending iBrain, the date the student began receiving 1:1 nursing services from B&H, and specifics of the February 2023 CSE meeting (Dec. 6, 2024 Tr. pp. 167-176), issues that generally would be considered in the context of whether the nursing services were appropriate for the student. Moreover, the parent's inability to recall specific details that occurred in 2023 does not by itself indicate that her testimony was "evasive" (IHO Decision at pp. 13-14) and, in any event, the IHO did not explicitly find that the parent was not a credible witness Indeed, the parent submitted to cross-examination by the district on many details of the student's nursing service (Dec. 6, 2024 Tr. pp. 176-189). Vagueness in the parent's testimony may go to a consideration of the appropriateness of a unilateral placement, to the extent the IHO determined either explicitly or implicitly that she considered the parent to lack credibility or that she did not give much weight to the parent's testimony, but, in this matter, it is uncontested that the student has medical needs that require nursing services and the hearing record in its totality supports a finding that the privately obtained nursing services were appropriate. Accordingly, there is no need to further discuss the parent's testimony in connection with equitable considerations.
Regarding the commencement of the student's 1:1 nursing services, the parent informed the February 2023 CSE that such services were necessary but did not actually enter into an agreement for the provision of such services until November 2023 (Parent Exs. C at pp. 43-44; K at pp. 8-9). The IHO interpreted the delay between the February 2023 CSE meeting and the actual provision of nursing services as evidence of the parent's predetermination to not cooperate with the district (IHO Decision at p. 14). However, the parent testified at the impartial hearing that the student's health deteriorated in the months between the meeting and the provision of 1:1 nursing services to such an extent that she required a nurse in order to not have to leave her class every 15-20 minutes (Dec. 6, 2024 Tr. p. 169). Moreover, the district was in possession of the student's medical paperwork in time for the February 2024 CSE meeting, so there is nothing to suggest that the parent's delay in obtaining the nursing services or providing paperwork was calculated to obstruct the CSE process or did actually impede the CSEs ability to consider the medical documentation once it became available (see Parent Ex. D). As a result, given that the IHO's determinations on equitable considerations incorrectly conflated aspects of an appropriateness inquiry with factors that properly related to a weighing of the equities, and the lack of support in the hearing record for a finding that the parent failed to cooperate with the district, the IHO's total reduction of relief to the parent for the privately obtained nursing services must be reversed.
VII. Conclusion
Based on the above, the evidence in the hearing record does not support the IHO's findings that equitable considerations preclude the parent from obtaining district funding for 1:1 nursing services provided by B&H for the 12-month 2023-24 school year.
I have considered the parties' remaining contentions and find they are unnecessary to address in light of my above determinations.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
THE CROSS-APPEAL IS DISMISSED.
IT IS ORDERED that the IHO's decision dated March 4, 2025 is modified by reversing those portions which denied the parent reimbursement for the costs of the student's 1:1 nursing services provided by B&H; and
IT IS FURTHER ORDERED that the district shall fund the costs of the student's 1:1 nursing services provided by B&H at the parent's contracted for rates.
Footnotes
[1] The transcripts in the hearing record are not all consecutively paginated with one another, therefore each citation to a transcript will be preceded by the date of the proceeding.
[2] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[3] State law provides that the parent has the obligation to establish that a unilateral placement is appropriate, which in this case is the 1:1 nursing services that the parent obtained from B&H (Educ. Law § 4404[1][c]).
[4] Regarding the student's vision, the January 2024 iBrain report and education plan indicated that the student "appear[ed] to have lost some ability to fix and hold visual gaze on familiar faces" (Parent Ex. E at p. 12). The January 2024 report also indicated that the student's "CVI characteristics . . . appear[ed] to be re-emerging including an increase in light-gazing and visual latency" as well as that "there appear[ed] to have noticeable deterioration in her overall level of resolution of characteristics of Cortical Visual Impairment which [was] unusual" (id.).