New York City Department of Education, Impartial Hearing Decision

THE NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

, a Minor, FINDINGS OF

FACT

by and through her Parent(s), AND DECISION Petitioners, -against- TANYA

HOBSON-

WILLIAMS

THE NEW YORK CITY DEPARTMENT Impartial Hearing OF EDUCATION Officer X

INTRODUCTION

The undersigned Hearing Officer was appointed to this matter on or about April 11, 2019. A Due Process Complaint was filed on or about April 8, 2019. The student is a student with a disability attending the ( ). The Parents allege that the District failed to provide the student with a FAPE for the 2018/2019 school year.

JURISDICTION

A decision in this matter is rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq.

BACKGROUND

On or about April 8, 2019, the Student’s Parents filed a due process complaint (Ex. 1). The complaint alleged that the District violated the student’s right to a FAPE under the N.Y.S. Education Law, the Individual with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973. The complaint alleged FAPE violations for the 2018/2019 school year.

The Impartial Hearing occurred on 09/09/2019, 10/22/2019, 11/12/2019, and concluded on 12/05/2019.

The hearings were attended by the Parents, their attorney and a representative from the District.

The Parent’s Exhibits A, B, E and F were admitted into evidence. The District’s evidence 1-12 and 14-20 were admitted into evidence.

The actual record close date is January 3, 2020.

In accordance with the testimony provided at the hearing and the exhibits admitted into evidence, my decision is as follows:

FINDINGS OF FACT

The student is and attended the ( ) for the 2018/2019 school year. The student was unilaterally placed by her parents. The student is classified as Multiple Disabilities by the District. Ex. 16. The classified the student with a Traumatic Brain Injury.

The student suffered . Tr. 341. The student requires one-to-one 24-hour care as a result. Tr. 341. She is legally blind and has impaired gross and fine motor skills; she has high tone in her extremities and low tone in her core. Tr. 342. She is fed via a G-Tube three times per day. Tr. 356.

She received early intervention at 7 weeks old. The student attended when she was , the and then . Thereafter at , she began attending . Tr. 344-345. The student has a one-to- paraprofessional, a one-to-one nurse in additional to receiving, 60-minute sessions of physical therapy, occupational therapy, speech and vision therapy at . Tr. 351-352, Ex.3.

The student requires intensive services as she is wheelchair bound and has seizures. The student requires the one-to-one nurse to ensure that the student is administered seizure medication which is taken three times per day in addition to thyroid medication. Tr. 355. The seizures are not predictable. Tr. 356. The student requires assistance transferring and needs a Stander to assist her with sitting and standing.

The District recommended a placement for the student at which is a . The recommended class was a 12:1:4 classroom and multiple handicaps is the exclusive classification of students in that class. Every class of 12:1:4 students has assistive technology devices in . Each student is evaluated to ascertain the appropriate device to encourage them to develop their communication and vocalization and verbalization. The District stated that there were students with similar needs as the student in the 12:1:4 program and based upon the student’s present levels of performance, has students with similar needs and they have a nurse on staff who can address the student’s needs.

The would have been able to place the student in a program at the school in a 12:1:4 program and offer OT, PT, vision education, Speech and Language therapy, and parent training as outlined in the IEP Exhibit 16-22, 23.

During the 2018/2019 school year, the student attended the ( ). was responsible for developing IEPs for students enrolled in . Tr. 17. The CSE met with a program director at in January 2018 to discuss scheduling of IEP meetings. Tr. 18, 19.

On January 8, 2018, the District performed a classroom observation. The student was observed from 11 am to 11:30 am in the middle of the student’s physical therapy session. The observer noted that the student was being stretched, used a dual switch tracking device and was provided with assistance walking. Ex.8. The CSE conducted a social history update for the student in March 17, 2017. Ex. 7.

The CSE scheduled two IEP meetings for the student. Ex. 9, 10, Tr. 21. The first meeting scheduled by the CSE was for May 8, 2018 at 1pm. Exhibit 9. The first Meeting Notice was dated March 1, 2018. The CSE notified the school and the parent via email and mail. Tr. 22. On May 7, 2018, the Parent emailed the CSE Chairperson advising that she would not be able to attend the May 8, 2018 IEP meeting. The Parent’s email did not provide a reason for the non-attendance. Ex. 19-5. On May 7, 2018, the Parents sent a letter to the CSE Chairperson stating their availability for a meeting and requested that the meeting take place Monday through Friday after 3 p.m., and that the meeting take place at the student’s school. Ex. 11. The Parents’ letter also stated that once an agreeable date and time was set, that they would provide the most recent progress reports and any other documentation for consideration. Ex. 11. The Parents also requested a nonpublic school placement. Ex. 11. The District did not receive progress reports from the parents or from . Tr.25.

The District then sent a Prior Written Notice re-scheduling the IEP meeting. The new IEP meeting was scheduled at 3pm in accordance with the Parents’ request. Tr. 32, Ex. 11, 12. However in the Prior Written Notice, the District advised the Parents that they denied the Parents’ request to have the IEP meeting at . Ex. 12. The second IEP meeting was scheduled for June 7, 2018 at 4pm. Ex. 10, 12. The CSE reassigned staff to be available after their work day to participate in the 4 pm meeting. Tr. 39. The second meeting notice was dated May 21, 2018. Ex. 10. On May 23, 2018, the CSE Chairperson emailed and the Parent a copy of the Prior Written Notice, procedural safeguards and the IEP notice for the June 7, 2018 IEP meeting. Tr. 35, Ex. 15. The CSE chairperson sent an email on June 3, 2018 reminding the parents and of the upcoming June 7, 2018 IEP meeting. Ex. 19-4. On June 6, 2018, a CSE Special Education teacher also called the Parent and left a voicemail message reminding the parents of the June 7, 2018 IEP meeting and asking for the progress reports. Ex. 19- 4. On June 6, 2018, the CSE Special Education teacher also sent an email to reminding them that the IEP meeting was scheduled for June 7, 2018 at 4pm and to send the CSE the progress reports. Tr. 39, Ex. 19-3. Neither , nor the Parent provided the progress reports for the student and neither nor the Parent participated in the June 7, 2018 meeting. Ex. 19-3, Tr. 35. The advised the CSE Chairperson that they could not send progress reports to the CSE without the Parents’ consent. Tr. 35. The CSE Chairperson was also advised that parents were being advised by their attorney not to consent to the submission of progress reports to the CSE. Tr. 35, Ex. 20. The Chairman of the Board of sent an email to parents indicating that they were aware that parents were advised by their attorney to cancel IEP meetings for the remainder of April and May and advising parents that they are expected to “cooperate with the process to get the meetings finished on the schedule we agreed to with .” Ex. 20. The Board Chairman’s email also offered a list of alternative legal representation. Ex. 20. The CSE Chairperson provided credible testimony that she was advised that if provided progress reports, they may face legal action. Tr. 37.

On June 7, 2018, the CSE called the Parent and was advised by the parent that she thought the meeting was cancelled. The Parent then contacted her attorney and advised the CSE that she would not participate in the meeting. Ex. 19-3, Tr. 40-41. The District held the IEP meeting without the participation of the parents. The CSE developed an IEP utilizing the January 11, 2018 Classroom Observation and the School Report dated March 17, 2017. Ex. 16. The District recommended a Special Class in a , 12:1+(3:1) classroom, Occupational Therapy, individually, 3 times 30 minutes, Parent Counseling and Training, group, 3 times, 30 minutes and in a group, one time 60 minutes, Physical Therapy, individually, 5 times, 30 minutes, Speech- Language Therapy, group of 3, 2 times, 30 minutes, Speech-Language Therapy, individually, 4 times 30 minutes and Vision Education services, individually, 3 times for 30 minutes. Ex. 16. On June 19, 2018, the District then sent a school location letter to the Parents recommending placement at . Ex. 18. The Parent unilaterally placed the student at for the 2018/2019 school year. The student was placed in a 6:1:1 classroom at . Tr. 253.

DECISION AND ORDER

The Parents allege a denial of FAPE and are seeking payment to the ( ) for the 2018/2019 school year.

The Parents will be entitled to reimbursement if they demonstrate that the District's proposed IEP was inappropriate to the child's needs and the private placement was appropriate and that the equities are in their favor. Gagliardo, 489 F.3d at 111- 12; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 129 (2d Cir. 1998).

The Burlington-Carter review, requires us to determine whether (1) the school district has provided an "inadequate or inappropriate" placement (i.e., failed to provide a FAPE); whether (2) the parents' selected program is appropriate; and (3) whether the equities favor the parents. R.K. v. New York City Dep't of Educ., 2011 U.S. Dist. LEXIS 32248, 2011 WL 1131492 (E.D.N.Y. Jan. 21, 2011). The Petitioner has the burden of proving the allegations in the due process complaint by a preponderance of the evidence and that the IEP was not reasonably calculated to confer an educational benefit on the student. 20 U.S.C. §1415(i)(2)(c); see also, Schaffer v. Weast, 546 U.S. 49 (2005).

Whether a proposed IEP is appropriate depends on two factors: whether the state complied with the IDEA's procedural requirements, and whether the IEP is "'reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 129 (quoting Rowley, 458 U.S. at 206-07). A student’s IEP doesn’t necessarily have to aim to get the student on grade level but must be appropriately ambitious in light of the student’s circumstances. Endrew F. v. Douglas County School District, RE–1, No. 15– 827, 580 U.S. ___ (2017), slip. op. at 11. The goals and objectives must be challenging. Endrew F.

An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations," as necessary to determine factors contributing to the student's disability (8 NYCRR 200.4[b][1]). Pursuant to 8 NYCRR 200.4(b)(4), a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability and, in accordance with 8 NYCRR 200.4(b)(5), the reevaluation must be "sufficient to determine the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education."

A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018).

DENIAL OF FAPE

At the June 7, 2018 meeting, the CSE reviewed the March 17, 2017, Social History and the January 8, 2018 Classroom Observation in developing the student’s IEP. The District did not order any additional evaluations of the student even though the Parents requested evaluations in their May 7, 2018 letter and since the student had not had a psychological evaluation since March 2015. Ex. 11, Tr. 54.

Additionally, the IEP created by the District does not indicate that the student uses an assistive communication device, fails to state that the student requires medical or healthcare treatments during the day and fails to note the student’s physical limitations that impact on her participation in school. Ex. 16-28. The student requires G-tube feeding and the administration of anti-seizure medications throughout the day. Tr. 101- 102. The report recommended a one-to-one nurse and a one-to-one paraprofessional for the Student. However, the IEP team member that participated in the hearing had no knowledge or recollection of this recommendation. Tr. 130-133. The 2017 progress reports relied upon by the IEP team stated that the student required 60-minute sessions of related services. The student has a very slow processing and requires time to respond and to actively participate in the therapies provided. Tr. 255-258b. The District recommended 30-minute session lengths because they were worried she would be “exhausted” by longer session lengths due to her “cognitive abilities”. Tr. at 79-80. No related service professional from the District participated in the IEP meeting or otherwise recommended the reduction of session length from 60- minute sessions to 30-minute sessions lengths. The District recommended Physical Therapy Five Periods Per month instead of Five Periods Per week. There is no support in the record for only recommending five sessions of physical therapy per month for the student who is wheelchair bound and requires significant support and therapy to gain an educational benefit. The report dated March 17, 2017 references the student’s needs for a one-to-one paraprofessional yet the CSE failed to recommend a one-on-one paraprofessional for the student. Ex. 5. The student requires a paraprofessional as she needs full assistance in all activities of daily living. Tr. 248. She requires assistance with her toileting needs and requires positioning for her resting period which is performed by a paraprofessional. The one-on-one paraprofessional is provided to the student at because all the other children have the same needs and thus one paraprofessional in the classroom would not be sufficient. Tr. 249. The student requires a nurse for assistance feeding her through the G-Tube. Tr. 249. The nurse is also required for the student’s seizure disorder.

APPROPRIATE PLACEMENT

The evidence and testimony introduced at the hearing demonstrates that is an appropriate and reimbursable program for the student as the program was designed to offer her meaningful educational benefit based upon her individual circumstances. An August 1, 2018 due process decision determined that was an appropriate program for the student during the 2017/2018 prior school year. Ex. B. Additionally, the student’s mother noted the student’s progress while attending the program at . Tr. 295-296, Tr. 298-298. The Education Director at noted that the student is engaged in learning to spell her name, is learning to read books and participates in transitioning from her wheelchair. Tr. 270. The student is also showing consistency in expressing her needs and obtained a meaningful educational benefit during the 2018/2019 school year.

The record establishes that the District failed to offer the student a FAPE for the 2018/2019 school year. The record also demonstrates that the program that the student is enrolled in is an appropriate placement.

EQUITIES

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"].

The records demonstrate that the Parents failed to cooperate with the District. The District attempted to schedule IEP meetings on two occasions. Both times the Parents failed to participate and they failed to provide the District with the progress reports needed to assist in developing an appropriate IEP. The Parents were in essence holding the progress reports hostage unless the District conceded to their demands concerning the location of the IEP meeting and the timing of the meeting. Ex. 11. The Parents also refused to provide consent for to release progress reports to the District for their consideration at the CSE meeting. The Parents’ argument that the District was in possession of 2018/2019 progress reports from is unpersuasive. Although the Parents may have provided progress reports at an impartial hearing, no evidence was presented at this hearing that the 2018/2019 progress reports had been developed or presented to the June 7, 2018 CSE team.

The District sent the Parents notices of the impending IEP meetings, email reminders and voicemail messages advising them of the EIP meetings. Ex.19. The record also demonstrates that Parents whose children attended were advised to cooperate with the CSE so that IEP meetings could be held. The Parents’ conduct was unreasonable and frustrated the District’s ability to develop an appropriate IEP.

To ensure parental participation in IEP meetings, federal and State regulations require school districts to do the following: notifying the parent prior to the meeting, scheduling the meeting at a mutually agreed upon time and place, and "[i]f neither parent can attend an [CSE] meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls" (34 CFR 300.322[a], [c]; 8 NYCRR 200.5[d][1][iii]). A district may conduct a CSE meeting without a parent in attendance if it is unable to convince the parents that they should attend; however, in such instances, the district is required to maintain detailed records of its attempts to ensure the parents' involvement and its attempts to arrange a mutually agreed upon time and place for the meeting (34 CFR 300.322[d]; 8 NYCRR 200.5[d][3], [4]). The SEISS records and testimony at the hearing demonstrate that the District maintained a record of their repeated attempts to have the Parents participate in the meeting.

In Board of Education of the Toledo City School District v. Horen, the district court discussed the difference between an affirmative refusal to attend versus a request to reschedule a meeting (2010 WL 3522373, at *15-*18 [N.D. Ohio Sept. 8, 2010]; see Doug C. v. Hawaii Dep't of Educ., 720 F.3d 1038, 1044 [9th Cir. 2013] [noting that parental involvement requires the agency to include the parents in a CSE meeting unless they affirmatively refused to attend]). The Parent clearly requested that the May 8, 2018 meeting be re-scheduled. Ex. 9. However, according to the SEISS notes and the Parent’s testimony, the Parents refused to participate in the June 7, 2018 IEP meeting, although done so under the advice of their attorney.

Therefore, consistent with the decision in Application of the New York City Department of Education, Appeal No. 19-076 at 40-4, I find that the due to the Parents’ failure to cooperate with the District and the IEP meetings, the equities warrant a Twenty-five (25%) percent reduction in tuition.

IT IS HEREBY ORDERED THAT:

The District is directed to pay seventy-five (75%) percent of the student’s tuition and transportation or to reimburse the Parents for seventy-five (75%) percent of the costs of the student's tuition and transportation actually paid by the Parents for the 2018/2019 school year as requested in the Due Process complaint. It is So Ordered. April 15, 2020

TANYA HOBSON-WILLIAMS

TANYA HOBSON-WILLIAMS

Impartial Hearing Officer

PLEASE TAKE NOTICE

W ithin 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the 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 the 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.