New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 18, 2011

October 21, 2011

October 31, 2011

January 5, 2012

January 26, 2012

Actual Record Closed Date: February 8, 2012

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 18, 2011

Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2011

Attorney — Student

Parent and Guardian — Student

Spanish Language Interpreter — Student

DR. , CSE 1

, Teacher Liaison,

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2011

Attorney — Student

District Representative — DOE

DR., (Via Telephone) Supervisor — DOE

(Via Telephone) Teacher Liaison — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2012

Attorney Representing the Family — Student

Parents

Clinician, Via Telephone — Student

Representing the Department of Education, Via Telephone — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 26, 2012

Attorney — Student

Parents

DOE Representative — DOE

By Complaint dated July 1, 2011, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared. The Complaint alleges free appropriate public education (FAPE) violations for 2011-2012 and corresponding placement at ) for 2011-2012.

The Complaint alleges that the Student is a 20 year old who attends the . The Complaint alleges that the District denied the Student a FAPE by its Committee on Special Education (CSE) review of May 23, 2011 by failing to allow the parent to meaningfully participate in the review, failing to create an appropriate ( ) for the Student, failing to consider the opinions of the Student’s treating clinician, teachers, and service providers and the Student’s report, and by substantively erring in its recommendations in connection to such CSE review. (Exh. A)

There is no dispute that the Student should attend JRC for the 2011-2012 year. (IHO Exh. 3)

The matter proceeded to hearing after the 30 day resolution period elapsed. This Impartial Hearing Officer (IHO) requested that the parties provide dates and times for hearing within 14 days of the expiration of resolution. (IHO Exh. 1) A hearing date was scheduled for August 18, 2011. On August 18, 2011, there was a hearing during which the parties argued issues relating to stay-put and admitted evidence. The parties jointly moved to extend the decision date because of issues relating to stay-put. The decision date was extended on August 18, 2011 because of same to October 15, 2011.

Another hearing date was scheduled for September 15, 2011. The parent sought to adjourn this date because of witness availability. There was no objection from the District. This application was granted. The IHO asked for additional hearing dates in the next two weeks. (IHO Exh. 1) The next hearing date was scheduled for October 21, 2011. On October 12, 2011, the parties moved to jointly extend the decision date because of witness availability. The application was granted, and the decision date was reset to November 11, 2011.

The parent sought to adjourn the October 21, 2011 hearing date on witness availability. This application was denied. At the hearing, stay-put issues were narrowed to the single issue of whether aversive interventions could be used at during the pendency of the litigation.(30) The issues relating to stay-put in the previous hearing involved issues relating to the agreement of the parent to the deferral of the case to the District’s Central Based Support Team (CBST). (48) The parent then sought to question a District witness in connection to such application. (50) The District raised an objection to such questioning because the District did not know that such witness would be called.

(51) This IHO directed the parties to return to again address issues relating to stay-put on October 31, 2011.

On October 31, 2011, the parties presented testimony and evidence in connection to the stay-put decision. (See stay-put decision, IHO Exh. 4)

On November 14, 2011, the parties jointly moved to extend the decision date because of witness availability. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to December 11, 2011. (IHO Exh.1)

On December 12, 2011, the parent sought to extend the decision date because of witness availability and unavoidable scheduling conflict. The parent indicated that the “student in this matter is placed in appropriate educational program and continues to receive necessary special education services. There is no prejudice to the school or the parent in this matter.” There was no objection from the District. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to January 11, 2012. (IHO Exh.1)

A final hearing date was scheduled for January 5, 2012 in this matter. The District sought to adjourn the hearing because of the illness of the District representative. This IHO denied such application to adjourn the hearing. (IHO Exh. 1) The parties presented testimony and evidence on this matter on such date. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to February 10, 2012. (IHO Exh. 1)

On January 16, 2012, the parent indicated that the transcript reflecting the January 5, 2012 hearing date did not accurately reflect the testimony of the parent at the hearing. (IHO Exh. 1) The New York City Department of Education Impartial Hearing Office contacted the reporting company which erroneously indicated that the parent “did not testify on that day.” (IHO Exh. 1) The parent’s attorney asked the District whether the District would stipulate to a statement from the parent so that additional testimony would not be required. (IHO Exh. 1) The District would not so stipulate. (IHO Exh. 1) Accordingly, a final hearing date was set for January 26, 2012.

The parent testified again on January 26, 2012. The parties moved to extend the time for the decision one more time because of the need to brief the matter following the January 26, 2012 hearing date and because of the need for the IHO to review the briefs. This IHO determined that the applications for extension were consistent with the regulatory requirements in 8 NYCRR Sect. 200.5(j)(5)(ii) and granted this application extending the decision date to March 9, 2012. (IHO Exh. 1) This IHO set the date for submitted written closing statements as February 6, 2012.

The parent submitted a written closing statement on February 6, 2012. (IHO Exh.

2) The District did not submit a statement on such date. The District sought permission to submit a late closing statement on February 8, 2012, which application was granted without opposition. (IHO Exh. 1) The District submitted a closing statement on February 8, 2012, which is the record close date in this matter. (IHO Exh. 3)

FINDINGS OF FACT

At the May 23, 2011 Individualized Education Program (IEP) meeting, the CSE met to take aversive interventions off the Student’s IEP. (108) This action was taken because the CSE felt aversive interventions were illegal. (108) The CSE deferred the matter to the CBST for placement. (109)

No FBA was conducted in connection to the May 23, 2011 IEP meeting. The BIP attached to the IEP was the same BIP as the BIP annexed to the February 28, 2011 IEP except that references to aversive interventions were “whited out.” (Exh. F; Exh. C; 112)

The is a device with a . (151) The device delivers a upon presentation of , over time, to cause destruction to the environment, . (151)

The including positive programming which involves . (152-153)

Prior to the Student receiving treatment through the , the Student’s behavioral plan was approved by a Massachusetts Probate Court. (154)

plan without the during the Student’s first year at the school. (155) Without aversive interventions, the Student was at a . (155)

The is used for . (160, 191) Though certain such behaviors such as a threat are not dangerous per se, data indicates that such behaviors, they will ultimately lead to more dangerous behavior. (188-190)

The use of the allowed the “ to be more effective. (162) It has allowed the Student to make progress in school and improve her personal health care. (164-166)

The Student will get up to 2 applications of the . per week. (182)

Medical professionals have indicated that it is safe for the Student to receive applications of the . (193-194)

The program at school works on adaptive living skills such as making a bed. (163)

The parent agrees with the use of the because the Student has progressed in the program. (235-236, 243)

CONCLUSIONS OF LAW

A FAPE is offered to a student when (a) the District complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).

The parents claim that the District failed to adequately create an FBA in this matter. An FBA is warranted for students whose behavior impedes their learning or that of others. 8 NYCRR Sect. 200.4 (d)(3) 200.22(a); Application of a Child with a Disability, Appeal No. 04-033. After the completion of an FBA, the District is then required to “consider strategies” further to a Behavior Intervention Plan. 8 NYCRR Sect. 200.22(b)(2). Such must meet strict requirements, such as “intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior” and “a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals.” 8 NYCRR Sect. 200.22(b)(4).

The record indicates that the was materially altered by the CSE’s decision to remove aversive interventions from the Student’s IEP. The record also indicates that there was no change to the Student’s BIP but for the “whiting out” of the requirement for aversive interventions. (Compare Exh. C with Exh. F.) There is nothing in the record to suggest that an FBA was created for this Student before the creation of such BIP. There is nothing in the record to suggest that the District deliberated at all before revising the IEP in such a manner. Indeed, the District did not call any witnesses in this case. The lone District witness was called at the behest of the parent, and then in connection to the parent’s application on stay-put. (68) The District also did not address the issue of an FBA or a BIP in its closing argument, even though this issue was plead in the Complaint.

I find that the District should have carefully created an FBA here to create a program that might support this Student without aversive interventions. Moreover, the BIP annexed to the IEP is inadequate to address the Student’s special education needs. Accordingly, I agree with the parent that the District denied the Student a FAPE with the May 23, 2011 IEP. As a result, I will void the May 23, 2011 IEP and direct the District to create a that will appropriately support the Student and reconvene the IEP team accordingly. The District is directed to reconvene within 60 days of the date of this decision. Dated: February 22, 2012

MICHAEL S. LAZAN, ESQ.

Impartial Hearing Officer

MSL: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

A Hearing Request, dated 7/1/11, 5 pages B Due Process Response, dated 7/8/11, 3 pages C IEP, dated 5/23/11, 14 pages D IEP, dated 12/8/09, 12 pages E IEP, dated 4/19/10, 15 pages F IEP, dated 2/28/11, 13 pages G Caption Page, 3 pages H Preliminary Injunction, 9/8/06, 7 pages I Preliminary Injunction, 10/2/06, 3 pages J Proposed Behavior Mod Program, 46 pages K Affidavit of Dr. 11/10/11 L Findings of Fact, 11/18/11, 2 pages M FBA and BIP, 3/11/11, 14 pages N Progress Report, 9/10-12/10, 13 pages O Progress Report, 12/10-3/11, 12 pages P Progress Report, 3/11-6/11, 10 pages Q Progress Report, 6/11-9/11, 10 pages R Weekly , 12/27/11, 8 pages S Report Card, 2010-2011, 1 page T Report Card, 2011-2012, 1 page U GED Fading Plan, 2 pages V Summary, 5/5/11, 3 pages W Program Description, 5/5/11, 7 pages X Class Schedule, 1 page

DEPARTMENT OF EDUCATION

1 IEP, dated 4/8/10, 15 pages 2 Classroom Observation and Child Interview Cover Sheet, dated 10/27/10, 2 pages 3 Child-specific Panel Determination, dated 2/10/11, 6 pages

IMPARTIAL HEARING OFFICER

I Notices of Extensions and Related E-mails, 11 pp II Closing Statement of Parent, 23 pp III Closing Statement of District, 3 pp IV Decision on Stay-put, 8 pp