Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the Parent and Guardian of A.K., Petitioner,

Hearing Officer: Michael Lazan

v. Case # 523853

[REDACTED] CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case filed on behalf of a [REDACTED]-year-old student (“the Student”) who is eligible for services as a student with Other Health Impairment. A Due Process Complaint (“Complaint”) was received by [REDACTED] Central District (“District” or “Respondent”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) on or about March 5, 2016 in regard to the Student. The Complaint alleges that Respondent denied the Student a FAPE by denying Petitioner the right to meaningfully participate in IEP meetings in May 2018 and March, 2019.

Hearings were held on April 25, 2019, May 6, 2019, and June 19, 2019. After the hearings, the parties prepared briefs. (IHO Exhs. 1, 2). Because of the testimony and issues in this case, to allow the parties to write briefs, and to allow this Impartial Hearing Officer to write this decision, timelines extensions were granted. For each such extension, this Impartial Hearing Officer determined that the application for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 3).

FINDINGS OF FACT

The Student has academic weaknesses, including in reading comprehension and in solving math problems, but the Student’s main problem is [REDACTED].

The Student attended a program in Respondent’s schools during the 2016-2017 school year and the 2017-2018 school year. On or about April 24, 2018, the Student was placed in a [REDACTED]. On May 9, 2018, Respondent scheduled an annual review for the Student, inviting Petitioner, but this meeting was canceled. Respondent then scheduled a Committee on Special Education (“CSE”) meeting on May 22, 2018. Petitioner was not invited to this meeting. The meeting attendees included [REDACTED]. Petitioner was not at the meeting. [REDACTED]. Ms. [REDACTED] then tried to contact Petitioner by phone, but Petitioner did not pick up the phone. Ms. [REDACTED] call was sent to voice mail. Tr. @ 64. The CSE then decided that the meeting would proceed, and that the parent would be given an opportunity to request another meeting if she so desired. The CSE went on to create an Individualized Education Program (“IEP”) for the Student.

After the meeting concluded, Ms. [REDACTED] contacted Petitioner, described what happened at the meeting, and told Petitioner that she could request another CSE meeting if she wanted to. Petitioner did not indicate that she wanted to attend another meeting. Tr. @ 65. Petitioner was then sent a Prior Written Notice from Respondent reflecting the recommendations that had been made at the May 22, 2018 CSE meeting.

On or about June 14, 2018, [REDACTED] received notice that the Student’s residence change from [REDACTED]. A CSE meeting was scheduled for the Student for the date of March 7, 2019. On or about March 1, 2019, Petitioner sent Ms. [REDACTED] an e-mail expressing that the Student should not attend the March 7, 2019 CSE meeting. Exh. D-19. Ms. [REDACTED] wrote back to Petitioner, stating that she looks forward to “coming to a decision” that gives the Student an opportunity to participate as well as “a productive meeting where we all work together to meet [the Student’s] needs.” Exh. D-21. On March 4, 2019, Petitioner proposed that the Student have an opportunity to speak to the committee at the CSE meeting, and that there would later be another CSE meeting without the Student present. Exh. D-22. Petitioner explained that because of the Student’s history of [REDACTED].

The CSE meeting commenced as scheduled. Both the Student and Petitioner attended the meeting. The Student attended with his lawyer. Respondent indicated at the beginning of the CSE meeting that if the parent would like the Student to be excused, that would be acceptable. Petitioner was then informed that the Student’s attorney would stay in the meeting if the Student was asked to leave. Tr. @ 244-245. Petitioner decided to allow the Student to be heard, and to later request a meeting where she could speak without the Student or his attorney present. The meeting started with the Student making a statement. After additional discussion, the CSE made recommendations. The Student and his attorney sat in the room the entire time and were not excused from the meeting. Petitioner did not ask the Student to be excused from the meeting .

After the meeting, Ms. [REDACTED] emailed Petitioner and asked her if she would like to schedule another CSE meeting to “discuss alternatives that you did not have an opportunity to discuss in our last CSE meeting.” Exh. D-29. Invitations were sent out for such a meeting on April 2, 2019. Petitioner acknowledged receipt of her invitation and requested that the Student not be invited to the meeting. Petitioner also found an invitation addressed to the Student. The April 11, 2019 CSE meeting convened as scheduled. Neither Petitioner nor the Student were in attendance. Additionally, Petitioner was unable to be reached by telephone. (Tr. @ 95).

CONCLUSIONS OF LAW

In New York State, the burden of persuasion in special education cases is on the school district except for the second criterion in cases for tuition reimbursement or payment. NY Ed. L. 4404(1).

The central purpose of the IDEA is to ensure that all children with disabilities have available to them special education and related services designed to meet their unique needs and provided in conformance with a written IEP (i.e., free, appropriate public education, or “FAPE”). 20 U.S.C. Sects. 1400(d)(1(A), 1401(9)(D), 1414(d); 34 C.F.R. Sects. 300.17(d), 300.320. Pursuant to the Supreme Court's decision in Board of Education of the Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176, (1982), the standard in determining whether a child is receiving a FAPE, or the “basic floor of opportunity,” is whether the child has “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.” Rowley, 458 U.S. at 201. The IDEA, according to Rowley, imposes no additional requirement that the services maximize each child's potential commensurate with the opportunity provided other children. Id. at 198. Under the IDEA, if procedural violations are alleged, a Hearing 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. Sect. 1415(f)(3)(e)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii). ^[1]. Mootness.

A dispute must “persist” throughout a special education litigation. If, for some reason, the dispute should “dissolve” due to a change in circumstances, the case becomes moot. Russman v. Board of Educ. of Enlarged City School Dist. of City of Watervliet, 260 F.3d 114, 118-19 (2d Cir. 2001). But the Supreme Court has recognized an exception to the mootness doctrine where the dispute is “capable of repetition, yet evading review.” The capable-of- repetition principle applies “where the following two circumstances are simultaneously present: (1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a “reasonable expectation” that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998).

These principles were expressed in Honig v. Doe, 484 U.S. 305 (1988), where the United States Supreme Court addressed mootness in a case involving a special education student with behavior problems. In applying the mootness exception, the Court noted that IDEA reviews are often “ponderous” and that the key inquiry was whether the events in question were capable of repetition, not Amore probable than not@ to be repeated. 484 U.S. at 317-323 (emphasis added).

Respondent contended that all of the issues in this case are moot. Respondent argued that the May 22, 2018 CSE meeting related to a program which was never implemented (or even considered) by the Berkshire CSE. Respondent also argued that it convened CSE meetings after the May 2018 meeting, making it all the more certain that the parent’s attendance at the meeting is now of no importance. Respondent also contended that the claims relating to the March 7, 2019 CSE meeting are moot because Petitioner received what she was requesting in regard to the Student’s participation at the CSE meeting.

Issues between Petitioner and Respondent apropos to parental involvement at CSE meetings have now arisen three times, in May 2018, March, 2019, and then again in April, 2019. This controversy has resulted in not one but two claims relating to parental involvement. Though one claim relates to the right to an invitation to a CSE meeting, and the other claim relates to the right of the parent to meaningfully participate in the CSE meeting, the crux of both claims is that the school district is disregarding the parent’s rights when convening CSE meetings. In this kind of fact pattern, courts tend to find that the issues in the due process complaint may recur yet again, and then apply the mootness exception. Toth v. New York City Dep't of Educ., 2018 WL 258793, at * ^[2] (2d Cir. Jan. 2, 2018). This was the basis of a New York State Review Officer’s (“SRO”) decision in Application of the Student with a Disability, Appeal No. 18-057 (2018), where the parent alleged that a school district was refusing to place a student in a non-public school. A Hearing Officer dismissed a case as moot, but an SRO reversed, finding that issues relating to the non-public school placement came up twice. See also Application of a Student with a Disability, Appeal No. 17-103 (2017).

It is noted that the school district did not clearly address the issue of whether this dispute is capable of repetition in its brief and instead, at least in regard to the March 2019 meeting, raised issues that ultimately go to the merits. Under these circumstances, Petitioner is entitled to a ruling on her claims that she was denied the right to the right to attend and meaningfully participate in the IEP meetings in May 2018 and March 2019.

2. Parental Participation at CSE Meetings.

A school district is obliged to make every effort to include parents at CSE meetings. This means that a school district shall notify the parent of the meeting prior to the meeting to ensure that he or she will have an opportunity to attend. A school district must also schedule the meeting at a mutually agreed on time and place, and in a location that is physically accessible to the parents. A school district must also use “other methods” to ensure parent participation, including individual or conference telephone calls. 8 NYCRR Sect. 200.5(d). During the meeting, school districts must have an Open mind so that parents may actively and meaningfully participate in the IEP meetings. T.P. and S.P. v. Mamaroneck Union Free School Dist., 554 F.^[3]d 247 (2d Cir. 2009). May 2018 meeting.

There is no dispute that Petitioner was not invited to this meeting, apparently because Respondent did not believe that Petitioner had parental rights at the time of the meeting. While at the meeting, Ms. [REDACTED] of Respondent was told that Petitioner indeed retained parental rights to the Student. Ms. [REDACTED] then called Petitioner to try to gain her participation, but Petitioner was not available. Respondent then chose to proceed with the meeting, formulating an IEP for the Student without the parent’s involvement. Later, Ms. [REDACTED] spoke to Petitioner and advised her of what had occurred and advised Petitioner that she could request another meeting if she desired. Petitioner did not ask for another meeting at the time.

Because Petitioner did not ask for the second meeting, Respondent contended that it provided Petitioner with ample opportunity to attend a CSE meeting for her child at the time. However, the regulations suggest that Respondent should have done more to ensure that an IEP was formulated with Petitioner’s full participation. There is nothing in the record to suggest that Respondent followed up with Petitioner to continue to try and persuade her to attend a CSE meeting even though federal regulations require school districts to keep a record of their attempts to arrange a mutually convenient meeting and attempts to convince parents to attend. 34 CFR 300.322 (d). This record can include detailed logs of telephone calls made or attempted and the results of those calls, copies of correspondence sent to parents and any responses received, and detailed records of visits made to the parents' home or places of employment and the results of those visits. Id. There is also nothing in the record to suggest that Respondent told Petitioner that the earlier IEP was void, or that it was fully open to changing the terms of the already written IEP at the subsequent meeting.

Respondent also argued that there was no harm to the Student as a result of the lack of parental involvement at the May 2018 meeting. However, the applicable regulations indicate that harm to the Student is not required where the school district “significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE.” 8 NYCRR Sect. 200.5(j)(4)(ii). Petitioner is correct that Respondent denied the Student a FAPE by failing to invite her to the May 22, 2018 CSE meeting. March 2019 Meeting.

Petitioner also contended that she was unable to meaningfully participate in the IEP meeting held in March 2019. Petitioner argued that her child was at the meeting, and she was therefore unable to freely discuss sensitive issues regarding the Student’s placement. However, Petitioner knew that she could have asked the Student to leave the meeting if she so chose and did not. Petitioner testified that she was wary of asking the Student to leave because his attorney at the meeting and would presumably report back to the Student about Petitioner’s requests. Petitioner indicated that she chose not to speak up because she wanted to have another meeting without the Student’s participation.

In fact, the school district set up such a second meeting, which was held on April 11, 2019. Petitioner received notice of this meeting. However, Petitioner did not attend this meeting, ostensibly because she found an invitation for the Student to attend the April 11, 2019 meeting. However, the school district then apparently disinvited the Student from the meeting, which proceeded without the Student or Petitioner. Petitioner was not available by phone when Ms. Davison tried to call her at the meeting, even though the meeting could have then proceeded as Petitioner herself suggested. To this Hearing Officer Petitioner should have at least been available by phone so that the April 2019 meeting could have proceeded as she desired. Under these circumstances, it cannot be said that Petitioner’s right to meaningfully participate in the IEP creation process were significantly impeded by Respondent’s actions at the March 2019 CSE meeting and then the subsequent April 2019 meeting.

RELIEF

Petitioner seeks an order that the CSE be reconvened, but, as Respondent pointed out, the CSE was reconvened several times after the May 2018 meeting. There is no point to ordering the CSE to be reconvened now. Petitioner’s other request for relief is an order that Petitioner must be consulted before the District invites the Student to subsequent CSE meetings, and that Petitioner must be invited to all CSE meetings concerning her son from this point forward. While this relief is styled differently than the relief in the due process complaint, which requests only that the District “reschedule the meeting to allow for the Student to be heard by the Committee and for the adult committee members to meet separately to review, discuss and make their decision concerning his placement,” this contention is reasonable and will be ordered by this Hearing Officer. While Respondent is correct that a parent’s FAPE claims must be limited to the claims in the due process complaint, if FAPE denial is found, a Hearing Officer has discretion to order relief “as appropriate.” School Committee of the Town of Burlington v. Dep’t of Education, Massachusetts, 471 U.S. 359, 371 (1985); 20 U.S.C. Sect. 1415(i)(2)(C)(iii).

ORDER

As a result of the foregoing:

1. Respondent is deemed to have denied the Student a FAPE by failing to invite Petitioner to the May 2018 CSE meeting;

2. Respondent is directed to consult with Petitioner before inviting the Student to any CSE meetings, and shall be invited to all CSE meetings for the Student, until the Student is of majority age;

3. Petitioner’s other claims and requests for relief are denied.

Dated: September 3, 2019

Michael Lazan

MICHAEL LAZAN IHO

APPEALS NOTICE

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.

EVIDENCE LIST

School District Exhibits 1 3/5/19 Due Process Complaint, 19 pp. 2 3/29/19 Answer, 19 pp. 3 Invitation to 5/22/18 CSE meeting, 2 pp. 4 5/22/18 IEP, 14 pages 5 5/25/18 Prior Written Notice, 4 pp. 6 6/13/18 Board of Education Review, 2 pp. 7 Document entitled Records Transmitted by Facsimile, Re: Student, 39 pages. 8 1/25/19 email from [REDACTED], 1 page. 9 2/5/19 email from [REDACTED], 1 page. 10 2/6/19 and 2/11/19 emails between parent and [REDACTED], 1 page. 11 2/14/19 emails between parent and [REDACTED], 2 pp. 12 2/14/19 and 2/19/19 emails between parent and [REDACTED], 1 page. 13 2/19/19 letter from Edwards, [REDACTED] 2 pp. 14 2/20/19 and 2/21/19 emails between parent and [REDACTED, 3 pp. 15 Invitations, 3/7/19 meeting, six pages. 16 2/22/19 consent form, one page. 17 2/20/19 to 2/22/19 emails between parent and [REDACTED], 4 pp. 18 2/27/19 and 2/28/19 emails between [REDACTED] and [REDACTED], 2 pp. 19 3/1/19 email from parent to [REDACTED], 1 page. 20 3/4/19 letter from [REDACTED] to [REDACTED], 2 pp. 21 3/5/19 email from [REDACTED] to parent, 1 page. 22 3/4/19 through 3/5/19 emails between [REDACTED] and [REDACTED], 2 pp. 23 3/5/19 email from [REDACTED] with attachment, 2 pp. 24 3/1/19 and 3/5/19 emails between parent and [REDACTED], 2 pp. 25 3/7/19 IEP, 15 pp. 26 Audiotape of 3/7 19 meeting. 27 Invitations to 4/11/19 meeting, 8 pp. 28 4/3/19 emails between [REDACTED] and [REDACTED], 2 pp. 29 4/3/19 emails between [REDACTED] and parent, 2 pp. 30 4/4/19 email from parent, 2 pp. 31 4/4/19 emails between parent, [REDACTED] and [REDACTED], 2 pp. 32 4/5/19 emails between [REDACTED] and parent, 2 pp. 33 4/9/19 emails between [REDACTED] and [REDACTED], 2 pp. 34 4/9/19 to 4/10/19 emails between [REDACTED] and [REDACTED], 2 pp. 35 5/10/18 Notification of Foster Child Placement and Order of Disposition, 9 pp. 36 5/14/18 Notification of Financial Responsibility, 1 page. 37 3/16/19 Notification of Foster Child Placement, 1 page. 38 Email, 4/4, 1 page 39 Family Services Progress Notes, 10 pp. Parent's Exhibits A. Meeting notice of 4/5/18, 7 pp. B. Amended Affirmation, 18 pages C Confidential Psychological Evaluation, 6/30/14, 13 pages H Psychological Reevaluation, 3/10/17, 5 pages. W Meeting Notes, 3 pages.

Z REDACTE

D email, 1 page. AA [REDACTED] Lake Emails, 2 pages. DD Prior Written Notice, 3/21/17, 2 pages. EE [REDACTED] Report Cards, 4 pages. FF Written Request, 11 pages. II Email from [REDACTED], 11/16/18, 1 page. NN Psychiatric Evaluation, 2/28/18, 3 pp. SS [REDACTED]Medical Group Report, 3 pp. VV Attendance Report, 8 pp. YY Police Reports, 8 pp. IHO Exhibits

Footnotes

[1] District Brief, 18 pp.

[2] Parent Brief, 16 pp.

[3] Timelines notices, 4 pp. 12