Elmira City Sch. Dist. v. N.Y.S. Educ. Dep't
| Decision Date | 07 April 2022 |
| Docket Number | 533020 |
| Citation | 204 A.D.3d 1134,166 N.Y.S.3d 710 |
| Parties | In the Matter of ELMIRA CITY SCHOOL DISTRICT, Appellant, v. NEW YORK STATE EDUCATION DEPARTMENT et al., Respondents, and Carolyn K., as Parent of E.K., an Infant, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Law Firm of Frank W. Miller PLLC, East Syracuse (Charles C. Spagnoli of counsel), for appellant.
McNelis Law PLLC, Getzville (Patrick M. McNelis of counsel), for Carolyn K., respondent.
Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Corcoran, J.), entered January 11, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 4 and Education Law § 4404(3)(a), to review a determination of a State Review Officer of respondent State Education Department finding that petitioner denied the subject student a free appropriate public education and was entitled to compensatory educational services.
Respondent Carolyn K. (hereinafter respondent) is the mother of E.K. (hereinafter the child; born in 2013) – a child with extensive medical issues who is nonverbal and not ambulatory. The child requires a multitude of services, including speech therapy, occupational therapy, physical therapy, vision therapy and skilled nursing services. One of her medical conditions causes mucous to accumulate in her throat and presents a danger for asphyxiation without proper suctioning. The record indicates that to address this concern, the child requires the care of a registered nurse (hereinafter RN) on a one-to-one basis at school.
During the 2017–2018 school year, the child was enrolled in a prekindergarten program at one of petitioner's schools, which she attended three days per week. She was placed in a general education classroom, attended morning sessions and had a one-on-one private nurse through Medicaid. For the 2018–2019 school year, the child was enrolled in a special education kindergarten program run by the Greater Southern Tier BOCES, where she was assigned a one-on-one RN (hereinafter the BOCES nurse) to assist her. As it turns out, the child attended the BOCES program on one day in September 2018 and did not return for the balance of the school year. That day, respondent raised a concern as to whether the BOCES nurse could properly perform a nasal tracheal suctioning procedure.1 After respondent demonstrated the procedure, the BOCES nurse did the same. Respondent, however, felt that the method utilized by the BOCES nurse was improper. At that point, respondent informed the BOCES staff that she would not feel comfortable allowing the child to attend school until the BOCES nurse received specific suctioning training. The BOCES staff understood this to mean that the child would not return until the training was completed.
Around that same time, a meeting was held with respondent, BOCES staff and petitioner's representatives to discuss concerns raised about a "Physicians Order and Treatment Plan" provided by respondent. In particular, the BOCES nurse identified medication discrepancies within the care plan and raised a concern that the document had been altered. The BOCES nurse advised that she was unable to provide care for the child until the discrepancies were resolved. Both the BOCES director of special education, Stacy Saglibene, and petitioner's assistant supervisor of special education, Suzanne Comstock, testified that respondent admitted altering the document. For her part, respondent explained that the document "was used for private duty nursing at home," but otherwise did not address whether the document had been altered. As a result, BOCES officials determined that the child could not attend their program until they received a corrected plan. A corrected care plan was finalized in or around December 11, 2018, but respondent opted not to send the child to school because the BOCES nurse had yet to receive the additional suctioning training. Efforts by petitioner to obtain further training for the BOCES nurse were unsuccessful.
In early February 2019, the BOCES nurse resigned from her position. The child was then discharged from the BOCES program. At that point, petitioner began related services at a different elementary school building with respondent providing medical care during the child's therapy sessions. Petitioner was ultimately unsuccessful in obtaining a one-to-one RN for the child. As a result, the child did not attend school for the balance of the school year. In March 2019, an annual review meeting was held by a Committee on Special Education (see Education Law § 4402[1][b][1] ) to assess the child's educational needs. Although respondent accepted certain of the recommendations made for the child's individualized education program (hereinafter IEP), she disagreed with recommendations for home schooling, home instruction or residential placement. Following the meeting, petitioner notified respondent that it was pursuing enrollment in a residential program, emphasizing that the local BOCES program was unable to meet the child's needs and petitioner could not secure a one-to-one RN to provide her with services.
Respondent thereafter filed a complaint under the Individuals with Disabilities Education Act (see 20 USC § 1400 et seq. [hereinafter IDEA]), alleging that petitioner failed to provide the child with a free appropriate public education (hereinafter FAPE) (see Education Law § 4404[1][a] ; 8 NYCRR 200.5 [i][1]). In that respect, respondent asserted that petitioner failed to provide services tailored to meet the child's needs during the 2018–2019 school year, and its proposal to place the child in a residential program was "overly restrictive," as the child benefitted from being in a classroom with peers and was able to meaningfully participate when provided with appropriate services.
A hearing was held before an impartial hearing officer (hereinafter IHO), who found that petitioner did not deny the child a FAPE. To that end, the IHO determined that the failure of the child to receive her IEP from September 2018 to February 2019 was attributable "directly and solely ... to [respondent's] improper conduct in altering [the child's] [p]hysician's care plans and ... refusal to send [the child] to receive her program at BOCES until her demands that [the BOCES nurse] receive additional training in suctioning [were met]." For the period from February 2019 onward, the IHO believed that petitioner was in a "[c]atch 22" situation because it could only implement the child's IEP if it could hire an RN to provide services, but was unsuccessful in locating a candidate who was willing to accept the position. Characterizing the situation as presenting an "[i]mpossibility of [p]erformance" defense, the IHO declined to find that petitioner was liable in failing to provide the child with her IEP during that time frame. Although the IHO expressed reservations about placing the child in a residential program, he ultimately determined that petitioner had no other option but to seek such a placement given that it was unable to locate a one-to-one RN.
Upon respondent's administrative appeal, a State Review Officer (hereinafter SRO) for respondent State Education Department reversed several of the IHO's findings, concluding that petitioner failed to offer the child a FAPE between the periods of September 2018 to December 2018, and February 2019 to June 2019. In light of that finding, the SRO remanded the matter to the IHO "for further development of the hearing record and a determination with respect to an appropriate award of compensatory education services for the [child] for those time frames." As for the period between September 2018 and December 2018, the SRO found that, although "it was reasonable for the BOCES nurses to not provide services to [the child] until they received a corrected [care] plan [from the child's doctor], [petitioner] should have taken measures to obtain a corrected plan instead of relying on [respondent] and her care coordinator and waiting almost two months for the correct paperwork." Accordingly, the SRO found that petitioner was responsible for the child not receiving educational services from September 2018 to December 2018.
With respect to the period between December 2018 and February 2019, the SRO essentially affirmed the IHO's finding that petitioner was not responsible for the failure to implement the child's IEP during this time. In that respect, the SRO concluded that respondent's concerns about the BOCES nurse requiring additional training in suctioning were unfounded and that the evidence "support[ed] a finding that ... [petitioner] had the capacity to implement the student's IEP between December 2018 and February 2019."
As for the period between February 2019 and June 2019, the SRO determined that there was minimal evidence supporting petitioner's contention that respondent's actions caused the BOCES nurse to resign and, aside from the request for suctioning training, there was no evidence that respondent placed unreasonable demands on the BOCES nurse or BOCES staff. The SRO further rejected the impossibility of performance defense, noting that defense was specific to contract law and did not excuse petitioner's statutory responsibility to implement the child's IEP. Therefore, the SRO reasoned, petitioner's inability to secure an RN who could provide one-to-one services for the child resulted in a material deviation from the IEP so as to constitute a denial of a FAPE during this period. Finally, the SRO vehemently disagreed with the plan to place the child in a residential program. Petitioner thereafter commenced this proceeding pursuant to CPLR article 4 and Education Law § 4404(3)(b) seeking annulment of the SRO's determination. Supreme Court dismissed the petition, and petitioner appeals.
The IDEA "offers [s]tates...
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