New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 127346

Student’s Name:

Date of Birth: ,

District: 27

Hearing Requested By:

Dates of Hearing: August 6, 2010

November 12, 2010

January 10, 2011

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2010

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12, 2010

/

District Representative — DOE

School — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 10, 2011

/

(via telephone)

District Representative — DOE

On August 6, 2010, November 12, 2010 and January 10, 2011, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”) and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

The proceeding was initiated at the request of the student’s (“the ”) by correspondence dated May 5, 2010. (Ex. A) I was appointed Impartial Hearing Officer on May 5, 2010. I was available to conduct a hearing within 14 days of the end of resolution. At a conference conducted by telephone on June 7, 2010, the initial hearing was scheduled for July 8, 2010, the first mutually available date. That hearing was adjourned at the request of the DOE and rescheduled to August 6, 2010. On August 9, 2010, an Interim Order on Pendency was issued. (Ex. III)

The initial compliance date in this matter was July 19, 2010. The parties moved to extend the compliance date on various occasions to enable the CSE to submit documents for State panel review and to conduct another CSE review and in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing memoranda. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted.

The current compliance date is March 17, 2011. The record closed on February 17, 2011, upon my receipt of all post-closing submissions.

Background

The following is not in dispute:

The student is a years old whose classification is . He also has a diagnosis of moderate to and is currently functioning at a . He was also diagnosed with but his last was in 2000 although he has not been taking for that. (Exs. 18, 21)

He was initially recommended by the DOE for placement at the (“ ” or “the school”) by when he was years old. (T. 233; Ex. 13) He had had a long history of frequent toward , and others, with children, public , , and . (Exs, 14, 16)

is a New York State “approved” located in with some students, about half of whom are or . (T. 230-231) utilizes a variety of modification techniques to increase a student’s appropriate and skills while decreasing . (T. 230, 237-238) Techniques used at the school include the (“ ”), a that a - , within a category of classed as s (“ ”). (Ex. E)

During his first few months at it was reported that the student exhibited more than weekly of and weekly of as well as very numerous , major and - . (T. 246, 316; Ex. E) In August 2003, after obtaining various approval, including from the and the CSE and consent from the (“the ”), the school began using the . (T. 244-245) Use of the resulted in the immediate of and other treated only by positive reinforcements also decreased at that time. (T. 246)

In 2006 New York State enacted regulations circumscribing the use of by among other things, requiring that such may be used only if recommended by the CSE, mandating that such be limited to - or identified on the IEP for such and requiring that when a CSE is considering it shall submit a Child Specific Exception Application (“application”) to a New York State Department of Education panel (“State panel”) to obtain a recommendation for the CSE’s consideration. See. NYCRR 200.22(e). Shortly thereafter a class action law suit on behalf of this student and others was filed against the State challenging the regulations. Preliminary injunctions (“ ”) barred the state from certain enforcement actions with regard to certain students, including this one, were thereafter issued. (Exs. S, D) In consequence of the legislation had ceased used of for this student for a period prior to the issuance of the but thereafter resumed using them. (Ex 17-8)

The CSE continued to authorize the use of for this student. In its February 26, 2009, IEP, the CSE reported low rates of and and that had reported that were no longer being used for those . The CSE also noted decreases in and . (Ex. B-

4) However, the CSE authorized , including the and movement limitation to treat “major including , , , major and [ ].” (T. 258-259; Exs. B, 15, IV) During the following year, utilized for certain . (Ex. 25) The was provided with the device by for use during the student’s visits, now approximately four times a year and sometimes for extended periods, but did not use it for several years until December 2010.

(T. 207)

On March 22, 2010, a CSE meeting was convened to develop a program for the following year. (Ex. C) In the resulting IEP, the CSE did not object to the continuation of the placement but, rejecting the recommendations of and the request, did not recommend the use of . (Ex. C) The CSE had not submitted an application to the State panel to obtain its opinion with regard to the continuation of prior to the CSE’s determination. (T. 59)

In its Quarterly Progress Report for the period December 15, 2009-March 14, 2010, reported in its discussion of its Fading Plan that the student, who had in 2003 when commenced, currently ; for and were dropped in January 2009 and February 2009, and that various specific were removed from other targeted categories including , , of without permission, remove and at times. However, this report was prepared subsequent to March 22, 2010 and had not submitted to the March 22 CSE. (T. 308, Ex. 25-3, 4)

On May 5, 2010, the requested an impartial hearing seeking the continuation of s. (Ex. A) An application to the State panel had not been made previously.

On August 9, 2010, an Interim Order on Pendency was issued at the request of the parent, with no objection from the DOE, to permit continued use of s in accordance with the February 26, 2009 IEP during the pendency of this action. (T. 5, Ex.

III) The DOE and the agreed that the DOE would submit the application for the State panel’s opinion with regard to the continued use of and that a CSE meeting would thereafter be held to reconsider that issue in light of the State panel opinion. (T. 5) At the request of the parties the hearing was adjourned and extensions of the compliance date were granted to enable the foregoing to occur. (T. 7)

The DOE prepared an application as did . The DOE application specified that in the form of movement limitation were requested. The application referenced the and also described certain occasions when movement limitation could be appropriate. (Exs. 12, 16)

On September 7, 2010, the State panel opinion was issued. The State panel concluded that s were not warranted. It stated that some of the identified for treatment might be considered as - . However, among other things, it: noted discrepancies between “written” and “typed“ applications including the fact that the written application requested only movement limitation while the typed application also requested the ; stated that under consideration did not meet eligibility for the use of s; expressed concerns about the use of movement limitation for a student “clearly compromised with Spinal and ” and about the student’s ability to transition to placement where the use of electrical stimulation and movement limitation “will be prohibited.” The panel also stated that it was unclear how movement limitation would be used, how often it had been used and its impact on . Concerns about the how positive function based were implemented were also described. (Ex. 10)

On October 21, 2010, the CSE reconvened and again declined to place s on the IEP or . The and her were present and participated by telephone. (Ex. 3)

Witnesses

The DOE’s sole witness was (“ ”), a certified school who participated in the October 21, 2010 CSE review.

The presented two witnesses: the and , (“ ”), a and the student’s treating at .

DOE

, a certified school , testified that her only familiarity with the student was her review for and participation in the October 21 meeting. (T. 42-

43) stated that had concurred that the student was no longer exhibited or to or others at the school and the had stated that he no longer exhibited those and was manageable at . (T. 50) She could not recall precisely but estimated that the student was at that time receiving an average of a week for other . The that the CSE developed was the same as that proposed at the March 22 meeting and there was no objection to it other than the absence of . (T. 52-53, Ex. 3-13) That described the that with learning as “minor which include making , leaving a area without permission, in , and in areas, and own in class and of his in class.” (Ex. 3) stated the student’s current did not fit the criteria for such a form of . (T. 89-93)

stated that the CSE had concluded that it was time to transition to different enforcers that it believed could be effective for the the student was then demonstrating. (T. 55-57, 91) Although had argued that the student might in the future resume certain unless was used, the CSE believed that was not appropriate when the were not then being observed. (T. 91, 95-96, 119) In her opinion, nothing but - or creating a threat to or others warrants . (T. 8, 112) She also stated that it was her understanding that did not want to use for minor like but rather in case more serious were manifested. (T. 96) The CSE also considered that the student would as a consequence of age, be transitioning from , and that was not utilized elsewhere. (T. 63, 132-133)

In arriving at its determination, the October 21 CSE considered the documentation in the file for the March 22 review, as well as the State panel opinion, a psychoeducational update and an observation of the student conducted by DOE on August 20, 2010. was unable to be specific with regard to the contents of the file. (T. 104-107) She stated, however, that had not provided sufficient substantive documentation at the meeting to warrant continuation of s expressly given an opportunity to do so at that time and had not provided documentation thereafter or requested another CSE review to consider such material. (T. 59, 72-73, 82, 92, 104)

With regard to the State panel opinion, stated that the CSE considered it as well as the rest of the file in concluding that s were not warranted but was not bound by the opinion. (T. 121) She had not seen the applications sent to the State panel, had no knowledge of what other documents had been sent to that body for its consideration but did not have all of the documents referenced by the State panel. (T. 61, 100) She acknowledged that an had been sent to the panel and that that had been prepared by but she had not reviewed it and could not form an opinion as to whether the State panel accurately described it. (T. 130-131) Further, she did not know if the DOE had ever prepared an but stated that the October 21 CSE had not. (T. 139) She was not familiar with any prepared by . 141

With regard to a “fading plan,” agreed that a reduction in should be gradual and stated that a fading plan had not been proposed by or considered by the CSE. (T.162-166)

testified as to the very substantial improvement the student has made at when were used and that presently the student does not receive for or , now appearing only occasionally and treated with positive reinforcement. (T. 246, 290) He sometimes receives “just under” three applications a week at most but sometimes none, and those for - but may be utilized for , major and - .

(T. 246, 290, 297) She stated that movement limitation is not part of the student’s program although had been obtained for it. (T. 239)

She stated that the student had in the period prior to the when were withdrawn and there was also a lack of progress in academics and daily living skills.

(T. 252-253, Ex. K) She stated that an in when the student was moved to another had also resulted in increased . (Ex. E.)

stated that uses and a reward system as well as the (T. 238) The student is also given opportunities to engage in appropriate to compete with . (T. 313-

314) He has a good idea of the contracts in place for him and currently they are effective in increasing positive and decreasing . (T. 292) requested authorization for “ , or what most people would call ”, major and non-compliant . (T. 274, Ex. E-27)

stated that in response to the CSE’s expressed concern on October 21 that the student should be in the fading process, she had pointed out that he was in a fading process and his are currently low because in part of the availability of the . (T. 273) stated that the State panel may not have received or considered the documents submitted because many of the concerns stated by the panel were inconsistent with the documentation submitted by . (T. 283-284, 287-289, 290-293)

testified left on the plan are only those that occur frequently. (T. 294) - occur in spite of extensive positive programming. (T. 296) The types of for which is used that the student still exhibits includes where has and , and . (T. 297) If catches the student early, when the student is gently , he can be or by use of a technique. (T. 315) The student also requires for -up including holding his , on , his so that he his into and that are in his . (T. 333-334) These can also be to other . (T. 333-334)

The testified that although provided with it, she has used the only in the past five years once because the student “understands”. (T. 204-205) When she used it in December 2010, it was because he was exposing all day to children, was spitting and was in bed as well as approaching people in what she believed was a manner. (T. 207-208, 213) She was told that the student has not or anyone else at school for some time. (T. 216) She is planning for the student to at after he of and that he won’t be receiving at that time. (T. 219-221)

Findings of Fact and Conclusions of Law

The parties have agreed that the sole issue for consideration herein is whether the CSE’s refusal to authorize the continuation of s was warranted. (T. 169)

A. Preliminary Injunctions

With regard to the ’ assertion that the CSE was barred by the from issuing an IEP discontinuing , I conclude that although the injunctions do bar State enforcement of various provisions of the Emergency Regulations, an impartial hearing officer lacks jurisdiction to decide the applicability and scope of these federal court injunctions. (Application of a Child with a Disability, Appeal No. 07-130) Claims that the DOE’s process for developing its IEP violated the should be addressed to the issuing court. There is no indication in the record that the parent has done so.

B. CSE Reviews

The asserts that the CSE’s refusal in its March 22 and October 21, 2010 IEPs to authorize the use of is not supported by the evidence and was improper for various reasons. (Ex. I) The DOE presented no testimony with regard to the March 22 CSE review. However, subsequent to the filing of the complaint concerning that review, the parties agreed upon the submission of an application to the State panel and a subsequent CSE review to reconsider this matter. That review occurred and the persuasive testimony was that the October 21 CSE made its determination after reviewing the entirety of the record in its possession at the time. In these circumstances, I conclude that objections to the March 22 review have been waived and consider only the appropriateness of the October 21, 2010 review.

With regard to the CSE’s October 21 review, as set forth above, it is unclear what documents the CSE had in its possession when making its determination and it did not have necessary material. The documents in the file for the March 22 review were unspecified. Although the CSE considered the State panel opinion, that determination specifically referenced serious inconsistencies between the applications received by the panel including the nature of the s being requested. Nevertheless, no inquiries were made with regard the material submitted to the State panel and no attempt to determine what the panel relied upon or to clarify the inconsistencies was made.

Although the general opinion of the State panel with regard to the use of s for certain might be gleaned, it also made representations, including about the effectiveness of other modification techniques. (Ex. 10) Having submitted the matter for the State panel’s consideration, I conclude that the CSE was required to give it reasonable consideration. The CSE should have had the documents the panel considered in order to appropriately evaluate that review and it did not. Although I note that the CSE did not receive additional relevant documentation from although it was given an opportunity to provide it, it was not the burden of the to supplement the material in the file here where the documents were already in the possession of the DOE in connection with this very matter.

Further, the CSE’s determination to refuse was made although it appears that the CSE not only did not conduct its own but also did not review . The evidence does not show that an in compliance with State regulations, upon which the CSE could rely was developed prior to the CSE’s reaching its determination. Further, the persons who had regular contact with the student strongly opposed removal and the CSE was not personally familiar with the student and had little experience with . Accordingly, the CSE has not shown that it evaluated appropriately the effectiveness of the the CSE proposed for this student or had a reasonable basis for requiring that its be implemented for this student. See Application of Child with a Disability, Appeal No. 07-130. Although the CSE had concerns re the student’s and subsequent transition there must be reasonable basis for concluding that its program would be effective.

Moreover, no fading plan was included in the IEP in circumstances where the CSE was proposing termination of the use of despite continuation of the previously targeted. fading plan does not, I conclude, contemplate a determination by the CSE to reject the continued use of but rather appears to be directed to what it considers the satisfactory conclusion of its . Nevertheless, the CSE was proposing an abrupt elimination. Although the had been substantially reduced from its initiation, the student had been at least one for eight years and had received recently. Despite these circumstances, it does not appear that the CSE made any effort to develop a plan to minimize the effects of termination or to direct to develop something appropriate. acknowledged that a fading plan was not considered.

The DOE has the burden to establish that the IEP it proposed was appropriate. Notwithstanding various inconsistencies in the presentation made by the , including the claim that movement limitation was not requested although it was referenced in various documents as a possibility in this case, as well as lack of clarity as to what information was submitted to the State panel (T. 119, Exs. 16, 21), I conclude that the DOE has not met its burden.

ORDER

The CSE shall develop an in conformance with State regulations and shall reconvene to consider the development of an appropriate . CSE consideration shall include consideration of a plan for the fading out of s before the student has .

Dated: February 28, 2011

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

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.

DOCUMENTS ENTERED INTO THE RECORD

A Impartial Hearing Request, 5/5/10, 5 pgs.

B IEP, 2/26/09, 13 pgs.

C IEP, 3/22/10, 15 pgs.

D Preliminary Injunction Order, 10/2/06, 3 pgs.

E Proposed , 6/25/10, 43 pgs.

F Aff. of , , 7/20/10, 6 pgs.

G . and Ct., 8/3/10, 8 pgs.

H and , 11/10/10, 8 pgs.

I Quarterly Progress Rpt, 3/14-6/12/10,

10 pgs.

J Quarterly Progress Rpt, 6/12-9/11/10,

10 pgs.

K Student Charts, 11/5/10, 8

pgs.

L Program Description. 11/5/10, 5 pgs.

M et al,. Journal of Applied article,

Winter 1988, 4 pgs.

N Excerpts-Research in , Side effects of contingent

, 2008, 11 pgs.

O Primer on , 5/20/08, 67 pgs.

P The Journal of of and and ,

(Abstract), 11/21/09, 3 pgs.

Q NOT ADMITTED

R NOT ADMITTED

S First Preliminary Injunction Order, 9/8/06, 7 pgs.

1 Notice of Rescheduled Resolution, 5/20/10, 3 pgs. Department of Education

2 Notice of Scheduled Resolution, 5/14/10, 4 pgs. Department of Education

3 CSE Review IEP, 10/21/10, 13 pgs. Department of Education

4 Conference Agenda Sheet, 10/21/10, 2 pgs. Department of Education

5 Declination Letter, 10/21/10, 1 pg. Department of Education

6 Appt. Letter CSE review, 10/12/10, 1 pg. Department of Education

7 Contact Sheet, 10/7/10, 1 pg. Department of Education

8 Appt. Letter CSE Review, 9/28/10, 1 pg. Department of Education

9 Appt. Letter CSE Review, 9/17/10, 1 pg. Department of Education

10 State Panel Decision, 9/7/10, 6 pgs. Department of Education

11 Observation, 8/20/10, 1 pg. Department of Education

12 Re-Applic. For Out of State Placement 2010-2011 Department of Education and s, 8/5/10, 8 pgs.

13 CSE Letterhead to CBST, undated, 2 pgs. Department of Education

14 Justif. for Continuation of Placement in and out State Department of Education

Residential Prog., 2010-2011 school year, 1 pg.

15 CSE Review IEP, 3/22/10, 13 pgs. Department of Education

16 Child Specific Exception Applic., undated, 10 pgs. Department of Education

17 and , 11/10/09, 11 pgs. Department of Education

18 Psycho-educational Update, 8/4/10, 2 pgs. Department of Education

19 School Psychological Report, 3/20/06, 4 pgs. Department of Education

20 Educational Evaluation, 2/8/10, 2 pgs. Department of Education

21 Neurological, 1/29/10, 5 pgs. Department of Education

22 Changes of Program, 3/16/10-4/2/10, 1 pg. Department of Education

23 Summary- Notes, 6/26/09-4/26/10, 3 Department of Education pgs. 24 Treatment Summary, 5/24/10, 1 pg. Department of Education

25 Quarterly Progress Rpt., 12/15/09-1/21/10, 1 pg. Department of Education

26 Report Card, 2009-2010 school year, 1 pg. Department of Education

27 Summary- Notes, 12/22/09-1/21/10, 1 Department of Education pg. 28 Minutes CSE Meeting, 3/22/10, 1 pg. Department of Education

29 Appt. Letter, CSE Review, 3/11/10, 1 pg. Department of Education

30 Appt. Letter CSE Review, 3/3/10, 1 pg. Department of Education

31 Torture Not Treatment, undated, 67 pgs. Department of Education

I ’s Post-Hearing Memorandum Impartial Hearing Officer

II DOE’s Post-Hearing Memorandum Impartial Hearing Officer

III Interim Order on Pendency Impartial Hearing Officer

IV Emails- Parties and IHO re Exhibit, 2/13-2/17/2011, Impartial Hearing Officer

2 pgs.