New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 31

Hearing Requested By: Parent

Date of Hearing: May 27, 2011

June 15, 2011

Hearing Officer: Mary Noe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 27, 2011

Attorney — Student

DR., Psychologist — Student

Director of the Foundation for Family School (via Telephone) — Student

Academic Coordinator of the Foundation for Family School (via Telephone) — Student

Parents

Parents

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 15, 2011

Attorney — Student

Mother — Student

Aunt — Student

Director of School (Via Telephone) — Student

Counselor at School (Via Telephone) — Student

District Representative — DOE

The parents by their advocate Associates requested an impartial hearing on March 22, 2011. On April 12th I contacted ’s office and was referred to Irina Roller, Esq. The first hearing date of April 29th was adjourned. The hearing continued on May 27 and June 15th. The compliance date was extended upon consent. The District was represented by .

The student is classified as other health impaired and currently attends the School. The date of the Individualized Education Program (IEP) that is challenged is 12/2/10.

The parent is requesting prospective tuition funding in addition to reimbursement for any monies paid toward tuition from December 2010 to June 30, 2011 (T. 129) ( Exh. P3) and $3,200.00 cost of evaluations. (T. 6)

The student’s classification of other health impaired is not in dispute.

The district has conceded that they did not offer this student a free appropriate public education. (T. 49) PARENT’S WITNESSES:

Dr. conducted a Psycho-Educational Evaluation on November 22, 2010. (Exh. F) Dr. reports that the student was suspended from school several times over recent years. The student was getting into physical fights with peers and threatening to hurt his classmates. “In one instance he a classmate and in another he threatened to some children with a . These incidents occurred in 2006.” (Exh. F-2) Dr. states that in the most recent incident, the student was observed carrying bags of to school and giving one of them to a student. (Exh. F-2) The Wechsler Intelligence Scale for Children-IV (WISC-IV) test was given and the student’s performance was consistently in the average range and Dr. adds “…and likely a minimum estimate of his intellectual potential.” (Exh. F-3) Dr. ’s report indicates that the student has a history of problems and is diagnosed with disorder ( ). The student is easily and has trouble sustaining his in the classroom. He responds well to medication but is not complicit with taking it. The student is easily and gets . Dr. reported that the student is “somewhat in reaction to his school and family struggles, there was no evidence of ideation.” (Exh. F-9) In Dr. ’s report she states that the student has reported taking as a way to himself from affect. (Exh. F-9) Dr. recommends “a structured residential program….that could help him address use, issues, and academic weaknesses. [The student] needs specific help with math, including of concepts and mastering procedures.” (Exh. F-9) Dr. lists the student’s diagnosis as “ -Combined Type, by history; Disorder, by history; Mathematics Disorder; Disorder with Mixed Disturbance of and Conduct; Rule out Disorder, Rule out Related Disorder; Rule out Related Disorder” (Exh. F-10) (T. 51 – 64) Dr. testified that the student needs a education school. (T. 87)

Dr. wrote a Psychological Assessment on October 26, 2010. Dr. treated the student from 4/17 – 6/3/2010 with cognitive psychotherapy. The therapy was not successful. Dr. submits that the student has a narcissistic with Deficit Disorder and Disorder. Dr. states that the student’s education suffers greatly and he is becoming dependent on . He describes the student as , , unreliable, , , little regard for standards, questionable judgment, has difficulty planning ahead and benefiting from previous failures. Dr. states that Disorder or some form of Disorder must be considered. The student is has tendencies. The parent reports the student stealing from family members and indulging in s. Dr. recommends placement in a residential treatment facility to address educational, and problems. (Exh. C-1)

Dr. , a Neurologist wrote a letter “To Whom It May Concern” on November 5, 2010. Dr. has been treating the student since he was years old. The student was diagnosed with and prescribed medication. The student has had some success while on the medication but becomes resistant to taking the medication which causes lapse in cognitive , attitude and eventually negative s. Dr.

reports severe swings. He recommends a residential academic treatment facility to meet the student’s needs academically, ally, psychologically and ly. (Exh. E-1)

On March 5, 2011, the student participated in the Million Clinical Inventory. (Exh. G) The report narratives have been normed on patients seen in professional treatment settings for either genuine discomforts or difficulties. In the section titled Patterns, the MACI profile of this student “…suggests a disdain for the welfare of others, a non-empathic and self-centered attitude, and a intimidating manner. Deeply felt resentment is projected outward, precipitating frequent , , and personal and family difficulties. Thos who criticize his fractious are seen themselves as and , hence justifying his defensive . The guiding principle…is that of outwitting others, exerting power over them before they can dominate him.” (Exh. G-3)

This report’s Diagnostic Hypotheses are as follows:

Axis II: Disorder, Traits and Features – / and Traits with and Features

Axis I: Clinical Syndromes – Other (or Unknown) Abuse; Disruptive

Disorder NOS; Dysthymic Disorder Also consider Disorder NOS or Disorder with ; Problem, Parent-Child Relational Problem

Under the title Prognostic and Therapeutic Implications it states

“It would be advisable to attend to and ameliorate this ’s current depression and preoccupations by the rapid implementation of supportive psychotherapeutic measures or targeted psychopharmacologic medications. The possibility of an acute - or -abuse problem should be carefully considered for this teenager. If verified, appropriate management or group therapeutic programs should be implemented. Once this has been adequately

, may be directed toward the more fundamental goals suggested in the following paragraphs.”

In a letter from the consulting psychiatrist at The School, Dr. Manly dated May 6, 2011, states that he met with the student on four occasions from January to April. The student is currently prescribed Adderall XR 20mg/day. The student is just beginning to show some positive responses to medication and the school’s therapeutic program and recommends that he continue at the school “…to and begin recover.” He states that “Any other setting including outpatient therapeutic settings carry a very high risk of relapse and failure.” (Exh. H-1)

The parent testified that she completed the Application for Admission to The School. (T. 402)

The question on the application is “What events have led you to consider The School at this time?” The parent responded “poor attitude, lying, failing in school in every class, positive results on home test for , stealing from me, and several members of my family and I also believe he is taking ”

th th h

The student attended a NYC public school for the , and grades.

th

The student’s Grade 2006 – 2007 Report Card indicates the following grades: Math , Science , Studies .

th

The student’s Grade 2007 – 2008 Report Card indicates the following grades:

Studies , Science , Math .

th

The student’s Grade 2008 – 2009 Report Card indicates the following grades:

Studies , Math , Science (Exh. 12)

The student started attending The School on December 7, 2010.

The student’s average grades for February, March and April 2011 were as follows: Global I ; Biology ; English , Algebra , Spanish . (Exh. I-1)

The School is a private residential school with a therapeutic component. The school utilizes a 12-step approach with a 12 step sponsor. (T. 114) The school is organized in family units with staff who serve roles. Each unit provides family at which attendance is mandatory, as well as group sessions and seminars for parents. Students range in age from to years, and the education component of the school provides instruction for grades through . Students typically remain at the School for months to months. (T. 213) Students attend or type of meetings off campus if possible. (T. 111) Students are responsible for the cooking, cleaning, and all aspects of daily living . Students with academic difficulties are provided with peer tutors, staff tutors. has not been approved by the Commissioner of Education to contract with school districts to instruct students with disabilities.

When the student enrolled he tested positive for . (T. 115)

, Director of the School testified that is provided by support groups and peers sharing their experiences within a family environment. (T. 181) Mr. testified that the School in not a school “…for education meaning kids with real difficult disabilities.” (T. 187)

, Director of Extended Academic Services of the School testified that the student has two periods daily incorporated into his schedule for tutoring. (T. 286 – 287)

, the Counselor at the School was asked the question “Can you explain for –to us why you think the School is a good fit for ?” He answered “I believe that with his abuse issues and his development issues that the overall student body that is here to provide support that he finds comfort in the way that the peer environment supports him on his own journey.” (T. 351) Mr. testified that abuse was a large part of the student’s life. The student name , , and . (T. 354 – 355)

The parent testified that a program in a regular school was unacceptable because the student was running away. (T. 425)

DISCUSSION:

The student's eligibility for education and related services as a student classified as other health impairment is not in dispute in this proceeding (see 34 C.F.R. § 300.8[c][9]; 8 NYCRR 200.1[zz][10]). The regulation defines Other Health Impaired as: “[H]aving limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, deficit disorder or disorder or tourette syndrome, which adversely affects a student's educational performance.”

This student has been diagnosed as disorder ( ). (Exhs. C1, E1) The student’s classification is based on this diagnosis.

The provides a 12 step program to address a or other problems and . These programs do not address the student’s particular disability of . The staff physician who saw the student four times in four months for an unknown period of time has prescribed to address the . A student need not be in a residential placement in order to obtain a prescription by a physician.

The student’s disability and abuse may be intertwined. “This argument could plausibly be advanced in most, if not all cases in which a student has both a disability and a -abuse problem. To accept it would be to hold that school districts must provide (or pay for) -abuse treatment for students who happen to be disabled. Nothing in the text of the IDEA suggests that Congress intended this result, which would add a significant financial burden to already heavily burdened public-school systems.” Courts that have addressed the issue have decided that a school district is not required to pay for private -abuse treatment. P.K. ex rel. v. Bedford Cent. School Dist. 569 F.Supp.2d 371 S.D.N.Y.,2008.Blickle v. St. Charles Cmty. Unit Sch. Dist. No. 303, 1993 WL 286485, *9 n. 10 (N.D.Ill. July 29, 1993); Field v. Haddonfield Bd. of Educ., 769 F.Supp. 1313, 1327 (D.N.J.1991).

Notwithstanding the program which addresses , the placement is most restrictive for purposes of denying students access to s and .

While the district must recommend a program in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]), the parents are not held to that standard of placement. The restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21 [1st Cir. 2002]; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000], cert. den., 532 U.S. 942, 121 S. Ct. 1403 [2001]). In deciding whether a school district must fund a residential placement, a determination must be made as to whether the child requires the residential program to receive educational benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 [2d Cir. 1997]; Application of a Child with a Disability, Appeal No. 95-19.

The residential program supports a free environment and . This student’s disability that affects his ability to is lack of and inability to stay on task. Dr. recommends placement in a residential treatment facility to address educational, and problems. (Exh. C-1) Dr. testified that the student needs a education school. (T. 87) However, the School is not a education school. (T. 187)

As to the parent’s request for reimbursement for Independent Educational Evaluation, federal and state regulations provide that a parent has the right to an Independent Educational Evaluation at public expense if the parent disagrees with an evaluation obtained by the school district. Nevertheless, the right to an independent evaluation is subject to the right of a school district to initiate a hearing to demonstrate the appropriateness of its evaluation. If the hearing officer finds that a school district's evaluation is appropriate, a parent may obtain an IEE, but not at public expense (34 C.F.R. § 300.502; 8 NYCRR 200.5 [g]). The district provided no testimony or submitted any evidence regarding the parent’s IEE.

I find that the School’s program does not provide the education services needed by this student. The School’s 12-step program is calculated to meet the student's need for abuse . Given that the student’s disability are not being adequately addressed at the School, I find the student’s placement there inappropriate under the IDEA. Accordingly, I find the award of tuition reimbursement to the parent for the School for December 2010 – June 2011 school year to be inappropriate.

Based on the foregoing the parent’s request for tuition reimbursement is denied and the request for reimbursement for the Independent Educational Evaluation is granted in the amount of $3,200.00. July 15, 2011

MARY NOE, ESQ.

Impartial Hearing Officer MN: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

PARENT DESCRIPTION

A Hearing Request, 3/22/11, 5 pages B 2010 IEP, 12/2/10, 12 pages C Psychological Assessment, 10/26/10, 1 page D Letter to Parent from School, 11/3/10, 1 page E Neuroscience Associates of New York, 11/5/10, 2 pages F Psycho-education Evaluation, Dr. , 11/22/10, 12 pages G Millon Clinical Inventory Report, 3/5/11, 12 pages H Letter from Dr. Manly, 5/6/11 I Academic Progress Report, School, 5/9/11, 2 pages 9 11 J Report Card, School, 2/11/11, 1 page K Class Schedule, School, Spring 2011, 1 page L Individual Crisis Management Plan, School, 12/29/10,

1 page M Individual Summary, School, 5/10/11, 1 page N Progress Note, School, 5/8/11, 1 page O Parent Correspondence to CSE, 12/2/10, 2 pages P 2010/2011 Parent Enrollment Contract, School, 12/17/10,

3 pages Q Affidavit of Payment, School, 4/25/11, 1 page R Parent’s Proof of Payment, 12/17/10 – 4/7/11, 4 pages S 2010/2011 Proofs of Payment to Dr. Evaluation, 1 page T Parent’s 2010 Tax Returns, 2 pages U School Literature, 28 pages V IEP, 11/6/09, 4 pages W Test Results from School, 12/17/10,^[1] page

DEPARTMENT OF EDUCATION DESCRIPTION

2 School, 7 pages, 5/19/11 3 Letter from New York Commission on Quality of Care, 9/8/10,

8 pages 4 Letter regarding Investigation, 6 pages 5 Letter, 12/29/10, 5 pages 6 web site, 1 page 7 web site, 1 page 8 Subpoena, 2 pages 9 Certified Receipt 10 Student Transcript, 7/2/09 48 49 11 Application for Admission, 8/19/10, 6 pages 12 New York City Public School Transcript, 2 pages

Footnotes

[1] Subpoena, 4/15, 2 pages