New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 129692

Student‟s Name:

Date of Birth:

District: 22

Hearing Requested By: Parent

Date of Hearing: December 20, 2010

December 21, 2010

February 8, 2011

Hearing Officer: Dora M. Lassinger, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 20, 2010

Student

Parents

Parents

District Rep — DOE

(Via Telephone) — DOE

Chairperson, School (Via Telephone) — DOE

(Via Telephone) — DOE

School (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 21, 2010

Student

Parents

(Via Telephone) — Student

Student

District Representative — DOE

Coordinator, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 8, 2011

Student

Parents

Parents

(Via Telephone) — Student

District Representative — DOE

— DOE

On September 27, 2010, the parents of., by their,,, requested an impartial hearing for the purpose of seeking tuition reimbursement for their unilateral placement of at,a school in (hereinafter “ ”). I was designated to hear this matter on October 4, 2010, pursuant to 20 U.S.C. Section 1415(f) (1).

An impartial hearing was conducted before me on December 20 and 21, 2010 and February 8, 2011. The time to render a decision was extended on three occasions, most recently to March 15, 2011. (IHO Ex. II).

is a year old with a classification of . Her classification is not in dispute. Nor do the parties dispute her need for a . (Tr. pp. 19-20).

was initially referred to the Committee on Special Education (“CSE”) by her parents, during the 2008-2009 school year. (Tr. p. 256). Psychological and educational testing were performed in November 2008. demonstrated average intelligence and average to high average skills. had been diagnosed with a , („ ”) and . The CSE initially recommended that her case be deferred to the Central Based Support Team (“ ”) for placement in a day school (Tr. p. 257 ) but subsequently changed the recommendation to a , with a twelve month school year, in an IEP dated May 13, 2009. (Par. Ex. C).

Following the May 13, 2009 CSE review, the parents were contacted by three schools regarding a possible placement for ; - , , and the School, but rejected all three programs as being inappropriate to meet ‟s unique needs. The parents placed at the , in and requested that the DOE fund placement there. (Par. Ex. N-3; DOE Ex. 3, p. 2).

On December 9, 2009, was admitted to the for (“ ”), where she remained until January 20, 2010. received a comprehensive multidisciplinary assessment with recommendations. It was recommended that she receive ongoing, long-term, with daily , including individual, group, and to help her develop the skills she is lacking, as well as classroom accommodations, and . For individual , a relationship-based approach to was recommended, in addition to a concrete skill-based approach to emotional regulation including ( ) and ( )

skills, social skills training, assertiveness training and basic communication skills. Group was recommended to assist in developing interpersonal relationships and social competency. (Par. Ex. B, 39-41; Tr. pp. 193-194).

In addition, was found to have met the criteria for an . Therefore, it was also recommended that she have access to outside events, school and other areas of interest; and social communication skills training. (Par. Ex. B, 26-27).

, a licensed , who served as ‟s during her stay at , testified that prior to her stay at , had not been diagnosed with an . She testified that does not track social exchange, and that she lacks the ability to appreciate some of her internal states. (Tr. p. 232). At the conclusion of her stay, it was recommended that she be placed in a an approach to including emotional containment skills, -oriented goals and rewards, and social skills training through individual and . (Tr. p. 235).

While the at did not recommend any specific program, Ms. testified that she was familiar with , as she has met the owners and has other students attend there. (Tr. p. 238). She felt that it was appropriate for as it provided a peer culture with children with similar needs who do not exhibit conduct , it utilized an approach to , including group work, and it provided which would help develop some skills for emotional regulation, and interpersonal receptiveness. In addition, the program has a component providing concrete immediate reinforcers, which requires. (Tr. pp. 239-240).

Ms. testified that it would not be appropriate for to attend a school. She testified that one of the reasons for ‟s failure in her last placement at , a - school, was that she was attempting to engage in a with a student, and when the school attempted to the situation, she responded by and school rules. (Tr. pp. 241-

242).^[1]

Ms. testified that lacks some of the fundamental skills to be able to accurately identify and assess social exchange, with a limited ego strength to be able to deal with some of the that arises in -to- . is very needy and wants a lot of reassurance, and would tend to be consumed by a romantic relationship. Ms. testified that lacked the coping skills to be able to contain the emotional response that she felt in coed , and that it would be preferable for her to first develop those coping skills. (Tr. p. 250).

Upon leaving , was to ,a , where she remains to this date. On January 21, 2010, the parents entered into a contract to place at at a monthly rate of $7410, or at the rate of $7250, per month for three months. The contract is subject to termination, without penalty, upon seven days advance notice. (Par. Ex. K). As of December 9, 2010, the parents had paid $44,700, on account of ‟s tuition for the 2010-2011 school year. (Par. Ex. M).2

On March 1, 2010, the CSE met for a requested review, and continued the recommendation that ‟s case be deferred to the for a twelve month placement with related services of , twice per week in a group and once per week individually. The IEP was to remain in effect for a year. (DOE Ex. pp. 1-2). The CSE review team reviewed the testing performed at and incorporated the results of the testing into the IEP. (Id. at 3-4; Par. Ex. B). intellectual abilities were described as being in the average range. Her scores ranged from the average to high average range. (Par. Ex. B-16-17, DOE Ex. 1, p 3). Her IEP reflects diagnoses of , and possible high functioning . (DOE Ex. 1, p. 4). Her IEP includes goals for positive relationships with authority figures, increased attention; decreasing levels of by verbalizing or expressing her ; developing the ability to ; improving peer and adult relationships., applying organizational techniques, and improving attending skills. (DOE Ex. 1). The Diploma Objective for was a Regents Diploma, with a long term adult outcome of attending a post secondary placement. (Id. at 17).

The DOE and the parent settled the parents‟ claim with respect to the 2009-2010 school year. (Tr. p. 265).

The CSE review team included the parent, a district representative (who was also a social worker), a school , a educational a and an . (DOE Ex. 1, p. 2). It did not include a general education teacher. (Tr. p. 93). There is nothing in the record to indicate that anyone requested or recommended that be placed in a general education setting.

Ms. , the school , who participated in the March 1, 2010 CSE review, testified that everyone at the meeting agreed that required a highly structured placement. (Tr. p. 91). She testified that the IEP was developed for the 2010-2011 school year. (Tr. p. 95). A projected date of initiation was not listed in the IEP, as this would depend upon when the found a placement. (Tr. p. 96). Ms. was involved in creating a package to forward to the . The package included the IEP and all appropriate evaluations. (Id. at 102).

, the case manager at the assigned to ‟s case, testified that ‟s referral package was submitted to approximately six schools, and that two

^[3]

schools; and the School, were interested in interviewing her. (Tr. pp., 21-22).

She testified that wrote to the parent expressing an interest in screening , but that the parent wrote that she did not believe the school was appropriate for . (Tr. pp. 23-24; DOE Ex. 3, p. 2). The also expressed an interest in setting up an interview with ; however the parent also rejected it as an option, following a telephone interview held on April 1, 2010. (Tr. p. 27; Par Ex. N-1, 7; DOE Ex. 3, p.2).^[4] In a letter to the parent, dated August 10, 2010, Ms. wrote that the parent‟s refusal to cooperate in the nonpublic school placement process would be considered a declination of services. (DOE Ex. 2).

, the of the , testified that she has a certificate as a school district and a Master‟s Degree in education. The school serves students in grades through . For students in grades through , the program is departmentalized with the majority of being special education as well as content certified. The school offers Regents diplomas, local diplomas, IEP diplomas and GED‟s. The school employs six school , services, and a full-time . (Tr. pp. 5557).The school is served by a whose office is thirteen miles away, where there is a children‟s . The Agency also contracts with a who sees the students weekly, under the . The has also installed high quality conferencing equipment for interviewing students. (Tr. p. 83).

provides a therapeutic educational setting with supports for students with emotional and educational disabilities. The program includes a lot of work, through the clinical social work , in face-to-face meetings and phone conferences. (Tr. p. 58).

Reviewing March 1, 2010 IEP, Ms. , testified that a seat was available for her for the 2010-2011 school year. (Tr. pp. 59, 67). She testified that students on the spectrum are carefully screened, and a tour and a personal interview with the and the student is required. (Tr. p. 68). With respect to other diagnoses of , and , she testified that the school “serves well” students with those diagnoses. She stated that it was based upon that fact that the school deemed to be educationally and clinically appropriate for the school, but that an interview would be required to make a more careful judgment, particularly in light of the fact that her IEP describes her with possible high-functioning . (Tr. p. 70) The interview would include an informal assessment by a clinical social worker with the residential facility. For educational purposes, Ms. also conducts the tour with the CSE Chair. (Tr. p. 71).

is a - school. of or between students occur infrequently, approximately once per month. (Tr. p. 74). The school has a total of students; of whom are in the portion. There are approximately twenty tenth grade students. (Tr. p. 78). Ms.

did not know the breakdown of and students.5 and students are educated together. Students are screened for . (Tr. p. 80). classes would include students, a and a . (Tr. p. 82

, the for the Union Free School District, testified that students are provided educational programs in accordance with their IEP‟s. All of the and teaching assistants are licensed and certified. and services are available on site. (Tr. pp. 109, 111) The school provides special education, social skills and related services. (Tr. p. 112). is provided as part of the program. (Tr. p. 118). The school is - . Last year, all of its went on to or a . (Tr. p. 115). All of the is trained in . (Tr. p. 119).

Ms. testified that was asked to come in for an interview for the . She would have been placed in accordance with her grade and reading level. The maximum class size is students with one and one teaching . All of the are certified in education. (Tr. pp 119-120). The has a on . (Tr. p. 121).

Contrary to the documents in evidence, reflecting the fact that both ( ) and wrote to the parent, in March 2010, requesting pre-placement interviews with the parent, Ms. , , testified that the DOE did not make any school recommendations, or offer her schools to investigate, for the 2010-2011 school year. (Tr. p. 266). She later acknowledged, however, that following the March 2010 meeting, she received letters from and had conversations with both schools. (Tr. p. 279). She rejected because it was a co-ed school and because it did not provide dialectical behavioral .6 She rejected because it was not an all school and because it was not a 7 very structured program. (Tr. pp. 279-280, Par. Ex. N-8).

5 In a letter to the school, dated April 5, 2010, the parent rejected the school based upon her understanding that there was a sixty per cent . (Par. Ex. N-7). 6 In her letter to Ms. , at the , dated April 5, 2010, the parent specifically stated that is inappropriate because it is a - school. She did not cite her concerns regarding the availability of at the school. (Par. Ex. N-6). 7 In her letter to Ms. at the , dated April 9, 2010, explained that she was rejecting because it could not offer an all , very structured program, which required. (Par. Ex. N-8).

, the and equine at , testified that she has master‟s degree in curriculum integration and a doctorate in curriculum and instructional design, which involves writing curriculum and teaching teachers. (Tr. p. 214). The mission of is to teach the students (all ) life skills so they can reunite with their and live a constructive life. The school serves in grades through . (Tr. pp. 124-126). The average student is intellectually capable but , with including , and . The school is accredited by the of Schools. (Tr. p. 127). The all have Master‟s Degrees and are certified by the state of . Each student owns a horse which she is responsible to , feed, , and for when . This is the first step toward getting the to think outside of themselves and for another being. They also go which provides empowerment and fun. Once each week, the also participate in formal equine , which involves communication with the horse. This program teaches the communication and speaking directly. (Tr. pp. 128-129).

consists of to students, divided among three . (Tr. p. 136). The attend classes within their own . (Tr. pp. 136-137). classes have students taught by one , and three to four direct , who serve as the . For math, there is a . Direct (who are ) reinforce the ‟ target skills including being polite, and making . They address so as not to distract from the teaching. (Id. at 138-139, 176).

program includes Math, English, Social Studies, Science and Electives. (Par. Ex. F). When first arrived at she would lay her down and refuse to participate. (Tr. pp. 141-142). By July, she had completed two courses. By August, she had completed her first term with A‟s and B‟s. performance varies, depending on her emotional state, but she is making progress overall. (Tr. pp.144-145). The school provides a great of support to keep focus and organized. (Tr. p. 147).

team meetings take place every Tuesday morning, including the , and . (Tr. pp. 149-150). has a who meets with her three or four times per week. (Trp. 158). The program is served by a in , who sees the monthly, or as needed. (Tr. p. 163).

, , testified that she has a Master‟s Degree in , and is licensed as a . She works under the of a licensed . She serves as the primary for students and their . She provides two individual sessions and one session per week, as well as a group and a group. (Tr. pp.168-170). She testified that is a structured which with , , , and on the spectrum. All of the students have been unable to function at . (Tr. pp. 171, 210).

The conducts groups, with various themes, every day, including an addictions group, group, self-esteem group and a boundaries group. There is also art , equine , social skills and life skills. In the evening, attends a meeting. Groups include all in the . initially presented with extreme defiance to the extent that she could not focus on her schoolwork (Tr. pp. 181, 183, 197-198). receives two weekly sessions of individual for forty-five minutes and sessions once per week. Ms. also sees as needed. (Tr. p. 184). is showing improvement in how she responds to feelings of vulnerability in relationships. (Tr. pp. 186-187). has also improved in her communications with her parents. (Tr. pp. 188-189). She is learning to manage her by indentifying her , and by learning how not to personalize things. (Tr. p. 190). She is able to talk about herself positively. (Tr. p. 191). Ms. uses a very approach to , including as well as . consists of restructuring thoughts. is similar to , and involves thoughts into what is happening in a technique called “mindfulness”. is taught how to regulate her emotions when she is . (Tr. pp. 193-194) of self worth are also enhanced by helping her identify her strengths. (Tr. p. 195).

benefits from weekly telephone calls. (Tr. p. 202). The school also holds parent weekends twice per year, which include parenting skills. The parents have participated in these trainings, which has also benefited . (Tr. pp. 205-206

Ms. testified that, in her opinion, should not be placed in a coed environment because her desire for acceptance is so great, that she would be at .(Tr. pp. 206-207).

Ms. ., , testified that has made tremendous progress since enrolling at . During a visit in December 2010, was and . She was able to go food shopping and prepare a whole meal. (Tr. p. 268). She feels that benefits from the loving, disciplined and attentive environment at . The also participates in one hour of with , every week, and attends seminars every two months, including parents‟ workshops. (Tr. p 269). She testified that although she did not initially perform well ally, has shown improvement and interest in completing projects and attending . (Tr. p. 270).

On July 29, 2010, Ms. wrote to the CSE stating that subsequent to the March 1, 2010 CSE meeting, she had received communication from and , but that she had rejected both programs as being inappropriate. She claimed that the CSE had failed to offer a program for the 2010-2011 school year, and accordingly she would continue her placement at and seek tuition reimbursement. (Par. Ex. O).

At the conclusion of the hearing, the Department of Education, through its representative, , argued that it attempted to provide with a Free Appropriate Public Education, but that the parents‟ refusal to cooperate prevented the DOE from facilitating the non-public school placement process. The DOE argued that the parents‟ refusal to cooperate should also be construed as a declination of services. (Tr. pp. 283-284).

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Appropriateness of the Recommended Program

Education Law 4404(1) provides that the burden of proof in impartial hearings is placed upon the school district. A Board of Education may be required to pay for educational services obtained for a child by the child‟s 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. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. V. Carter by Carter, to 510 US. (1993).

Appropriateness of Recommended Placement

There is no dispute that was properly classified as and recommended for a .

The IEP incorporates the results of the comprehensive assessment performed at the , adequately describes needs, and establishes appropriate goals. The level of recommended in the IEP, however, (one individual session and two group sessions per week) is inconsistent with the recommendation of daily , including individual, group, and milieu therapies.

The Department Of Education (“DOE”) presented proof regarding which considered accepting , but required an interview. Neither program was described in sufficient detail, however, for me to determine whether it could offer an appropriate program for . The witness from the testified that the school provides a educational setting, and serves a population of students with diagnoses similar to . She testified that the school has on , a school ,a and the services of a , and that the does a lot of work. She testified that students with a possible diagnosis of would have to be screened more carefully. She failed to describe the at , and how it would benefit . Nor did she explain how the school would address the parents‟ concerns about placing in a - .

The information in the record regarding the program at - was even more sparse. Ms. testified that the school would provide with small classes and all of her related services, as provided in her IEP. The school has on a and provides for the residential students. Ms. failed to describe how the school would provide with the which she required. She also failed to explain how the school would address the parents‟ concerns about placing in a - .

For all of the foregoing reasons, I find that the DOE failed to meet its burden of proving that it provided with an appropriate program. Appropriateness of Proposed Parental Placement

To qualify for funding under the IDEA, the parent must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educe. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir.

2006) (citing Rowley). Cert. denied, Board of Educe. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that the parents satisfied their burden of proving that provided with an educational program specifically designed to meet her educational needs. Specifically, the school provides with a highly , structured and . receives a combination of individual, group and . Instruction is individualized, and is given a great deal of support to address issues of attention and organization.

In , has made progress in improving her self-esteem and her communication, as well as regulating her emotions and her . ally, she has progressed from being totally unavailable for learning to completing assignments. In her first semester, she received grades of B in all of her classes. (Par. G-4). ‟s program includes Math, English, Social Studies, Science and Electives.

For all of the foregoing reasons, I find that the parents have satisfied their burden of proving the appropriateness of the parental placement. Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 [S.D.N.Y. Nov. 20, 2007]. Tuition reimbursement may be reduced or denied upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; see Bettinger v. New York City Bd. of Educ., supra. Application of the BOARD OF EDUCATION, Appeal No. 08-084.

The record indicates that the parents cooperated with the CSE by attending CSE reviews and providing evaluations. The DOE maintains, however, that their cooperation ended when they were asked to produce for interviews at possible placements, and that this refusal should be considered a declination of services.

In Bettinger v. New York City Bd. Of Educ., supra, the court held that the parents‟ failure to participate in the interview process, after the CSE had deferred the student‟s case to the , constituted a lack of cooperation which barred their request for tuition reimbursement. In that case, when contacted for an interview at the school, the parent stated she was not interested. Although presented facts similar to the instant case, there are important distinctions. In that case, there was no record that the parents expressed their dissatisfaction with the referrals to schools they had received. Furthermore, the student attended a day school in , and the state approved school to which the CSE referred him was also a day school located in .

In the instant case, the parents explained their reasons for refusing to continue with the interview process at and , and communicated those reasons to the . The record supports the parents‟ concern that a - would present special for , in view of her and her undeveloped social skills; and that the recommended placements did not offer the level of support that required. The CSE failed to present any evidence that these concerns could be addressed at either of the recommended sites. I also note that was attending an school in , during the time period when the interviews were requested.

For the foregoing reasons, I find that equitable considerations do not bar the parents‟ request for reimbursement.

ORDER

For all of the foregoing reasons, it is hereby ordered that the Department of Education shall reimburse the parents for tuition at for the 2010-2011 school year, upon presentation of proof of payment thereof. Dated: February 28, 2011

DORA M. LASSINGER, ESQ

Impartial Hearing Officer

DML: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 DECEMBER 20, 2010

DEPARTMENT OF EDUCATION

1. IEP, dated 3/1/10, 16 pp.

2. Letter from , 8/10/10, 1 p.

3. notes, 12/13/10, 4 pp.

PARENT

A Impartial Hearing Request, 9/27/10, 4 pages C IEP, 5/13/09, 14 pp. D Course Description, 2010-2011, 10 pp. E Class Schedule, 2010-2011, 1 p. F Class Schedule, 2010-2011, l p. G Transcript , 12/1/10, 2 pp. H Summaries, , July to Oct. 2010, 4 pp. L Letter of Attendance, , 12/8/10, 1 p. M Affidavit of Payment, , 12/9/10, 1 p.

IMPARTIAL HEARING OFFICER

I E-mail transmission report, 12/13/10, l p.

DOCUMENTATION ENTERED INTO THE RECORD DECEMBER 21, 2010

PARENT

B Assessment, 12/9/09 to 1/20/10, 61 pp. I Quarterly Summary, 7/20/10 to 10/30/10, 5 pp. J Visit Contract, Undated, l p. K Enrollment Contract, 1/21/10, 4 pp. N Parent correspondence to , 8/17/10, 11 pp. O Parent correspondence to CSE, 7 /29/10, 2 pp.

DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 8, 2011

None

IMPARTIAL HEARING OFFICER

II Case Follow up Sheets, various dates, 3 pp.

Footnotes

[1] herself described the situation at in an , which is part of the report. (Par. Ex. B, pp. 47- 48).

[3] The is also referred to in the record as “ ”. (DOE Ex. 3, p. 2).

[4] According to a letter written by Ms. , wrote to the parent on March 24, 2010 expressing its interest in a pre-placement interview with and wrote to the parent on March 24, 2010 expressing its interest in a pre-placement interview with . (Par. Ex. N-2). The parents rejected as an option on June 28, 2009 and again on April 5, 2010, because it is co-ed, and they felt that required an all school. (Par. Ex. N-5, 7). - was rejected on April 9, 2010, because it was co-ed, and because it was not very structured. (Par. Ex. N-8).