New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 14, 2014

March 4, 2014

Actual Record Closed Date: March 18, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2014

Parent/Mother (Via Telephone) — Student

Dr., District Representative (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 4, 2014

Parent/Mother — Student

Student

Dr., District Representative — DOE

Dr., Pediatrician (via telephone) — DOE

INTRODUCTION

On January 6, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

A hearing was conducted. Appended to the record are lists of persons in attendance and the documents received in evidence.

First day of hearing, February 14, 2014, was impacted by a winter storm. Parties were advised to appear by phone so that hearing can progress.

On February 14, 2014 parent made a motion to extend the compliance date by 30 days to allow parties time to properly present positions at hearing. Motion was granted and compliance date was extended to March 20, 2014. (T 28)

BACKGROUND

This matter was instituted by the impartial hearing request dated December 2,

2013. (Ex A)

Parent seeks continued transportation service of the student with a Registered Nurse. (Ex A 1)

Individualized Education Program (IEP), of April 25, 2013, includes a classification of issues. (Ex 1-1 & 1-2)

IEP includes a recommendation for full time nursing services, daily, in school, 5 times a day for a 15 minute duration, special education transportation accommodations as follows: . (Ex 1-8 & 1-11)

IEP of November 22, 2013 contains the same information as the previous IEP, with the transportation accommodation of a Nurse removed, and the inclusion of a transportation Health Para. (Ex 2-12)

PARENT POSITION

), the student’s mother, presented her position, and provided relevant testimony.

contends that the student had the service of a ) traveling with him on his bus to and from school. Service was discontinued, on September 13, 2013, and then an IEP meeting was held, November 22, 2013 which took the off the IEP. (T 4-5 & 59-60, Ex 2)

thought the November 22, 2013 meeting would be to dispute the removal of the nurse. At that time she was told she could put in for an Impartial Hearing. had thought the nurse was removed in September, since that is when the nurse service stopped. Parent was given the request for transportation accommodations report on November 15, 2013, just prior to the meeting. (T 60-61, Ex 6)

Parent contends that the removal of the para in September was improper and that the RN service should continue. (T 10)

Parent transported the child herself to and from school, once she became aware the RN service was stopped. Once the RN stopped the DOE could not find a para so there was no one to travel with the student. (T 10-11)

Parent was advised the November 22, 2013 IEP meeting was being held to change the RN to a health para and then the parent could appeal that decision, after the meeting. (T 12)

In January 2014 the RN was placed back on the bus, since the DOE could not find a health para willing to travel with the student. (T 12 & 63)

The RN on the bus “regulates his temperature because my son doesn't know how . So he has to have a constant monitoring because, believe it or not, if this bus is in the or more than five minutes, he'll . If the , he'll . He's gone down to degrees, his internal temperature.” RN is also needed , if necessary. (T 14-15 & 18-19)

Travel is about two hours each way on the bus to and . (T 15)

Parent states that it is about a 35-40 minute direct drive to and from school. (T 16)

The student needs someone to constantly monitor his condition for overheating or trouble breathing. Student is “We haven't had any major issues other than a couple of times they've had to pull the bus over because either the air conditioning was broken in the summer and the bus over-- and went , the bus . And he when he goes cold. He will .” During each occurrence the nurse addressed the student‘s needs. Student is highly “And it takes somebody to be able to read his cues to know or not because he doesn't have . He has where people . And you know there really is nothing else to say other than t that can only be administered by a registered nurse. Not even an LPN can give ” (T 58-59)

confirmed did not speak to the student’s doctor. (T 65)

states that it is fair to say did not have all the documentation available to make a decision. did know that she was not speaking to the student‘s primary doctor, even though Dr. is indicated in the paperwork. was never notified, or included, in the process that was underway. (T 66-67)

notes that the doctor letter referred to by LLim does include mention of a seizure disorder, among other medical needs. (T 68-69)

provides updated doctor letter confirming the student’s need for a nurse during transportation. (Ex B 1)

DEPARTMENT OF EDUCATION POSITION

Dr. ( ) presented the DOE position.

DOE acknowledged that the RN was included in the IEP of 04/25/2013, service was discontinued in September of 2013, and IEP of November 22, 2013 removed the RN. (T 5-6, Ex 1 & 2)

contends that the was taken of the bus, and the IEP of 11/22/2013, due to the DOE doctor determining a para would suffice. (T 7)

Paperwork regarding the was completed over the summer, but was not addressed by the DOE physician until September. (T 11)

Meeting of November 22, 2013 was solely to address the RN service. (T 11)

DOE contends they presently have a para who will travel with the student. (T 13)

sets forth the DOE position in detail.

Student “is in . He has a medical diagnosis which includes . On 4/24/13, an annual review was held. He was recommended to continue attending School in Due to his he was mandated on his IEP to have a transportation nurse. In late September 2013, the Office of Pupil Transportation asked for an . After that medical was received and reviewed by the Department of Education's physician, the Department of Education's physician, Dr. , recommended that he could benefit from a transportation para on the bus instead of a nurse. She believed that a transportation para could meet his needs because it was going to be solely for positioning on the bus. And she stated that a para would be able to do this on the bus. The DOE does have a transportation para who is able and willing to ride with the child to and from his home to the school building at this time.” (T 39-40)

contends that the DOE took additional action after September when the Office of Pupil Transportation realized it did not have an updated medical. (T 72) DOE WITNESS DR.

Dr. ) testified as the DOE physician who determined the health para was appropriate, and not an RN, for the student’s transportation.

states “I am not familiar with the child. I just examined—I just read the request that the sent to me. That’s how it is.” (T 45-46)

spoke to the child’s physician. “I spoke to two doctors, I think. Okay, I spoke to one that is named Dr. And I think at that time he was covering for the other doctor. And he doesn't know the child and he doesn't know that the child needs a nurse. And I speak to the other doctor with requesting--I only was requesting for a nurse. So I discussed with her why the patient needs a nurse.” (T 46)

added “But he doesn't have a trach, the doctor said. So he doesn't need a skilled nursing service.” (T 46)

states that the student’s doctor told him this information. (T 47)

reviewed the request with the supervising doctor, who thinks the student does not need skilled nursing, because he does not have a trach. (T 47)

Student would need a nurse in the event a trach came out and had to be put back in place. A health para could not perform this task. (T 48)

Student need for positioning of the head does not require skilled nursing, and can be addressed by a health para. (T 48)

On cross examination parent noted that the doctor LL spoke to was Dr. Ganya, who is not the student’s doctor. (T 49)

Parent asked if she had the student prescription . answered he did not have that document. (T 49)

did not have any documentation reflecting the student had seizures. (T 51)

was not sure if the student received nursing services at school. (T 51)

did not contact the parent, stating “Cause we don’t talk to the parent…We only deal with the paperwork. That’s what our work is.” (T 51)

is not involved with school nursing service requests. (T 52)

states that the only document he had at the time the decision for was made was the letter from Dr. . (T 54, Ex 5)

specifically states he did not have the medical request form completed by the physician. (T 54)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A student is offered a FAPE 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability enabling him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

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]). The burden of proof is on the school district during an impartial hearing. (Educ. Law § 4404[1][c]).

IDEA directs that, in general, an impartial hearing officer'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).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a caseby-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]). IEP of 11/22/2014 Predetermination / Parent Participation

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y.

2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice."]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006]). Moreover, the consideration of possible recommendations for a student, prior to a CSE meeting is not prohibited as long as the CSE understands that changes may occur at the CSE meeting (see T.P., 554 F.3d at 253; Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ["predetermination is not synonymous with preparation"]; Deal v. Hamilton County Bd. Of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]; M.W. v. New York City Dep't of Educ., 869 F. Supp. 2d 320, 333-34 [E.D.N.Y. June 13, 2012], aff'd, 2013 WL 3868594 [2d Cir. July 29, 2013]; D. D-S v. Southold Union Free Sch.

Dist., 2011 WL 3919040, at *10-11 [E.D.N.Y. Sept.2, 2011], aff'd, 2012 WL 6684585 [2d Cir. Dec. 26, 2012]; B.O. v. Cold Spring Harbor Cent.

Sch. Dist., 807 F. Supp. 2d 130, 136 [E.D.N.Y., 2011]; A.G. v. Frieden, 2009 WL 806832, at *7 [S.D.N.Y. Mar. 26, 2009]; P.K., 569 F. Supp. 2d at 382-83; Danielle G. v. New York City Dep't of Educ., 2008 WL

3286579, at *6-*7 [E.D.N.Y. 2008]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 507 [S.D.N.Y. 2008]; W.S. v. Rye City Sch.

Dist., 454 F. Supp. 2d 134, 147-48 [S.D.N.Y. 2006]; Application of the Dep't of Educ., Appeal No. 11-051; Application of the Dep't of Educ., Appeal No. 10-070; see also 34 CFR 300.501[b][1], [3]; 8 NYCRR

200.5[d][1], [2]). A key factor with regard to predetermination is whether the district has "an open mind as to the content of [the student's] IEP"

(T.P., 554 F.3d at 253; see D. D-S., 2011 WL 3919040, at *10-*11; R.R.

v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y.

2009], aff'd, 2010 WL 565659 [2d Cir. Feb. 18, 2010]).

The DOE acknowledges that the Nursing service was discontinued prior to the IEP meeting in November. The meeting in November was held solely to remove the Nurse service from the IEP. (T 5-6)

The evidence, including statements made by the DOE, clearly show that the meeting was not a meeting at all, but merely a way for the DOE to document terminating a service, that had been removed in the previous September.

I find the IEP of Novembe 22, 2014 to be improperly conducted and predetermined, failing to offer the student a FAPE.

The IEP also fails to justify the removal of the Nurse in that it relies upon inaccurate and incomplete information. Insofar as the Nurse service is concerned, the IEP does not include a statement of the student's present levels of functional performance and functional needs, relative to the need for a Nurse during transportation.

Both IEPs in evidence include a recommendation for full time nursing services, daily, in school, 5 times a day for a 15 minute duration. The conflict of full time for 5 times daily for 15 minute durations are not explained. It is clear from the evidence provided that the student does need skilled nursing services throughout the day, including during transportation. I note that transportation is up to four hours daily. (Ex 1-8 & 2-8)

testimony is disturbing for several reasons. It reflects an unprofessional attitude towards the student’s records and needs. Testimony included:

“I am not familiar with the child. I just examined—I just read the request that the doctor sent to me. That’s how it is.” (T 45-46)

“I spoke to two doctors, I think. Okay, I spoke to one that is named Dr. And I think at that time he was . And he doesn't know the child and he doesn't know that the child needs a nurse…” (T 46)

“But he doesn't have a trach, the doctor said. So he doesn't need a skilled nursing service.” (T 46)

states that the student’s doctor told him this information, though he did not speak to the student‘s doctor. (T 47 & 49)

Student would need a nurse in the event a trach came out and had to be put back in place. A could not perform this task. (T 48)

Student need for positioning of the head does not require skilled nursing, and can be addressed by a health para. No information was presented to evidence could deal with and properly address student‘s many health concerns. (T 48)

did not have any documentation reflecting the T 51)

was not sure if the student received . (T 51)

did not contact the parent, stating “’Cause we don’t talk to the parent…We only deal with the paperwork. That’s what our work is.” (T 51)

states that the only document he had at the time the decision for a was made was the letter from Dr. . (T 54, Ex 5)

specifically states he did not have the medical request form completed by the physician. (T 54)

The DOE doctor choose to limit himself as to the information he considered, relying on one lone document and neglecting to contact the parent or student’s doctor.

states he had the letter of Dr. 8, 2013. This letter clearly states that the student requires a trained RN on the bus to assess his condition and adjust Medical needs include: changes in his position can create may . Similar information is contained in the IEPs entered into evidence. did not refer to any documentation, or include the parent, in evaluating the need of the student.

(Ex 5, 1-2 & 2-2)

completed a report that contradicts the student‘s need to have his airway monitored. Report notes “he does not need a nurse to ” (Ex 5-1 & 6-1)

Document submitted by DOE also indicates that the student “frequently becomes congested and, if not carefully monitored, ...Position changes allow him to better handle his secretions” (Ex 4-1 & 4-1)

Parent detailed the improper removal of the RN service and how the IEP meeting was predetermined to remove the service. gives credible testimony that the student had the service of a Registered Nurse (RN) traveling with him on his bus to and from school.

Service was discontinued, on 09/13/2013, and then an IEP meeting was held, 11/22/2013 which took the RN off the IEP. (T 4-5 & 59-60, Ex 2)

thought the November 22, 2013 meeting would be to dispute the removal of the nurse. At that time she was told she could put in for an Impartial Hearing. had thought the nurse was removed in September, since that is when the nurse service stopped. Parent was given the request for transportation accommodations report on 11/15/2013, just prior to the meeting. (T 60-61, Ex 6)

Parent concerns with the removal of the RN for4ced her to transport the child herself to and from school, once she became aware the RN service was stopped. Once the RN stopped the DOE could not find a para so there was no one to travel with the student. (T 10-11)

added additional information regarding the transportation needs of her child, the required monitoring of the airways and temperature., and the possibility that medication may need to be administered to the student. (T 14-15 & 18-19)

Travel is about two hours each way on the bus to and from (T 15)

Parent states that it is about a 35-40 minute direct drive to and from school. (T 16)

I find that the IEP, dated November 22, 2013, by failing to include the provision of a RN to accompany the student for transportation, failed to offer the student a FAPE.

IEP improperly removed the RN from the IEP. Therefore the IEP of November 22, 2013 was not designed to meet their unique needs of the student and prepare this for further education, employment, and independent living.

I find equitable considerations support the parents claim.

Parent appeared at each IEP meeting and presented her concerns to the team. IEP of November 22, 2013 includes “ on the bus ride may not know what to do in case of a (Ex 2-3)

ORDER

1. The DOE improperly removed the RN transportation service from the student’s IEP.

2. Student needs require to accompany him on his bus to and from school each day for the 2013-2014 school year.

3. DOE shall within 30 days reconvene and place the transportation service upon the student’s IEP.

4. This decision is subject to appeal and review by the State Review Officer. Dated: March 26, 2014

DANIEL AJELLO, ESQ.

Impartial Hearing Officer

DA:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

ENTERED 02/14/2013

A Hearing Request, 12/2/13, 1 page

ENTERED 03/04/2014

B Doctor Letter, 2/101/13, 1 page

DEPARTMENT OF EDUCATION

ENTERED 03/04/2014

1 IEP, 4/25/13, 13 pages 2 IEP, 11/22/13, 13 pages 3 Annual Review, 3 pages 4 Nurse Report, 1/22/13, 2 pages 5 Doctor's Letter, 5/8/13, 1 page 6 OSH Physician's Review Medical Request for Transportation Accommodation,

9/30/13, 6 pages

HEARING OFFICER

ENTERED 03/04/2014

I Extension of Timelines, dated 02/14/2014, 3 pages