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 12, 2011

September 12, 2011

October 3, 2011

November 16, 2011

February 2, 2012

Record Close Date: March 30, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 12, 2011

Attorney — Student

Attorney Co-Counsel — Student

Attorney (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 2, 2012

Attorney — Student

Parents

Clinician (via telephone) — Student

Attorney — DOE

On July 5, 2011, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parent of a ( attending a New York State approved residential school and the New York City - Department of Education (“DOE”) - Home District: , Service District: , regarding the student’s special education program.

BACKGROUND

This case was initiated as the result of a Due Process Complaint (“DPC”) made by the student’s Parent through her attorney, , and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about July 5, 2011. (P-A) The DPC is carried under New York City (“NYC”) Case No. A request for an Order on Pendency was made by the Parent’s attorney and hearing was held on the same on August 12, 2011. On that date, the hearing was completed and the following Order on Pendency - “On Consent” was issued:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under the decision of IHO Theresa R.

Joyner, dated May 12, 2011, incorporating the student’s Individualized Education Plan (“IEP”) dated March 24, 2006, for the time the student has attended the private school identified therein; and it is further

ORDERED on CONSENT that a copy of IHO Theresa R.

Joyner’s decision dated May 12, 2011 and the student’s IEP dated March 24, 2006 (P-C & P-D), shall accompany this Order on Pendency for reference.

The matter then proceeded to an impartial hearing after the filing of a Motion to Quash a Subpoena filed by the Parents and a Motion to Dismiss filed by the DOE. Those issues were either resolved or decided. (T-12, 19-23, 59 & IHO-01 & 02) The proceeding was held on August 12, 2011, September 12, 2011, October 3, 2011, November 16, 2011 and February 2, 2012. A list of the persons who appeared at the proceeding and the documents entered into evidence is annexed hereto.

THE DOE’S CASE

The DOE argues that the Burlington/Carter analysis is applicable in this case and that it is conceding “Prong I” of the same. (T-28-9, 44, 109 & 127) The agency states that “equities” are in its favor because the Parent was offered at least an interview through the Community Based Support Team (“CBST”) and rejected the interview. (T-

29) According to the DOE, the Parent is required to put on a “Prong II” case regarding the student’s placement and the use of aversives at the New York State (“NYS”) approved private residential school. (T-44) Whether or not the DOE placed the student at the is irrelevant, because the agency did not place the student there today. (T-45) The CSE deferred the case to the CBST to find an appropriate placement for the student. (Id.) The agency was not able to provide a placement for the student because of the Parent’s refusal to cooperate. (T-47)

Later, the DOE conceded that it approved the student’s placement and funding for the same. (T-59 & 127) The only issue to be decided is the “aversives.” (T-59 & 109) According to the regulations an IHO is not barred from putting aversives onto an Individualized Education Program (“IEP”), but there has to be a procedure for doing so set up by the State Education Department back in 2006. (T-60) A “child-specific” exception is required from a panel of experts. (Id.) An IHO cannot substitute his or her judgment over that of the State Department of Education as per Regulation 200.22. (T60-1)

The DOE further argues that the student has been . (T-100, 110 & D-10) Therefore, the for the student is strictly a . (T-110 & 128) The agency declined to call any witnesses on its behalf or to put on any case-in-chief. (T-114 & 138) The agency submitted (10) documents into evidence.

THE PARENT’S CASE

The Parent argues that it is her understanding that the appropriateness of the student’s overall private residential school program is not really an issue in this case. (T-

33) The issue is that the Committee on Special Education (“CSE”) did not agree that the student should continue to receive “ .” (T-33 & 130) The “injunctions” that were issued by the Federal District Court were “encompassed” in the decision of a separate Impartial Hearing Officer (“IHO”) dated May 12, 2011. (T-13-6) The two injunctions are dated August 8, 2006 (actually September 8, 2006) and October 2, 2006. (T-18, P-G & P-H) Counsel for the Parent does not represent the private residential school. (T-22)

The Parent states that the student was placed at the private residential school by the DOE and the agency has never changed the student’s placement. (T-35) The Burlington/Carter analysis does not apply in this case where the student was placed at the private residential school by the agency. (T-36) The DOE has never done an “FNR” (“Final Notice of Recommendation”) for the student and never placed him anywhere else. (Id.) The DOE changed the student’s without following the Commissioner’s regulations and first conducting a ”).

The Parent further argues that the State Review Officer (“SRO”) has held that in a situation where “aversives” are being considered and an agreement cannot be reached, an application has to be filed with the State Review Panel for an advisory opinion about whether the aversives are appropriate. (T-37) The DOE has the burden to prove that it provided the student with a “free and appropriate public education” (“FAPE”) when it removed . (T-37, 133, 135 & 137) Here, the agency did not file the application with the State Review Panel. (T-38) The “panel” consists of since the regulation was set up in

1976. (T-39)

The Parent further argues that on the issue of “placement”, there should be a directed verdict ordering the DOE to pay for the private residential placement because the agency placed the student there and never changed the placement. (T-40) The Parent’s request to continue the student’s placement at the private school for the 2011-2012 school is now moot as funding has been secured. (T-63, 122, 129 & D-5) The regulations hold that it is the CSE that makes the final determination. (T-64) The state panel simply makes a non-binding recommendation to the CSE. (Id.) The student in this case is a part of the action in the Federal District Court and is covered by the injunctions that have been issued by that court. (T-67) The question is to what extent the injunction enjoins the implementation of aversives. (T-66-7)

The Parent states that one of the conditions for the injunctions to be applicable is that, if the CSE removes aversives from a student’s IEP there is a contingency in the injunction order that the Parent must request an impartial hearing and litigate the issue. (T-93-4) However, the Parent maintains that she does not have the burden of proving the appropriateness of the student’s . (T-111) Relying on SRO No. , the Parents argues that in a case where the Parent seeks continuation of services for which the Parent is not seeking reimbursement, because those services are provided as part of the program which was initially recommended for the student by the DOE, the Parent does not have the burden of proof. (T-111 & 132-3)

The Parent argues that the CSE did not provide the Parent with any documentation indicating the reasons for removing aversives. (T-112) are highly monitored at the private school and besides receiving informed consent from the Parent; the private school goes through annual re-applications for their use with the . (T-113) The re-approved the for the 2011-2012 school year. (T-114)

The Parent further argues that the student has made enormous progress at the private school because prior to his placement thereat he had been constantly in and out of psychiatric hospitals. (T-131) Since he’s been at the private school, he has never been hospitalized again. (Id.) The DOE did agree to recommend aversives for the student before its emergency regulations banning aversives went into effect. (T-136)

The Parent called (2) witnesses to testify on her behalf and submitted (27) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student clinician at the private school. (T-139) He is a licensed . (T-142) He stated that the private school is a residential treatment facility and educational facility that specializes in behavior disorders for the . (T-143) The private school is approved by the New York State Education Department to provide residential services to children with . (Id.)

The witness stated that he begins with an . (T-144) The private school has an extensive reward-based program that they do through differential reinforcement of other alternative contracts. (Id.) The students also receive an education based on their grade level. (Id.) The student will be . (T-146) He has an IQ in the range. (Id.) The student scored a “ ”, which places him in the . (Id.) He has a diagnosis of . (Id.) The student is classified as “ .” (T-147) He has also been diagnosed with . (T-148)

The witness stated that prior to being admitted to the private school, the student had been . (Id.) The student (T-148-9) He is treated with what they call . (Id.) His treatment is reviewed and revaluated on an annual basis. (T-150) The treatment is discussed with the student’s guardian in great detail. (Id.) If she approves, then the matter is reviewed by the Judge with the clinician and the attorney present to answer any and all questions. (Id.) The student is represented in the process. (T-151) The attorney often has an independent psychologist come in. (Id.)

The witness stated that the student’s aunt is designated his guardian. (Id.) The student’s behavior modification plan has been approved by the . (T-152, P-L & P-N) Due to the student’s progress, he has removed “GED” treatment from several of his behavior categories. (T-154) The student is doing excellent and very well. (T-155) He wears three devices. (Id.) The categories of behaviors are specified by the private school and are based on the student’s history. (T-157) The student can say “ ”, but all other (Id.) Other major

The witness stated that the

The witness stated that all of the private school’s staff is trained on the use of the . (Id.) There are required exams that have to be passed at a 100% rate and they are all retrained on an annual basis. (Id.) There are supervisors in the classroom and in the residents. (Id.) The private school also has a “ .” (T-162) Before an application of the , there has to be two staff that verify. (Id.) Only one staff member is required to have witnessed the incident. (T-162-3) The staff member that witnessed the behavior steps over to another staff that takes the recording sheet which includes each behavior that is treated with the . (T-163) The private school monitors the use of the in several different databases and . (T-164 & P-BB)

The witness stated that in the last year the student has received about ( applications. (T-166) The student has had about ( . (T-167) Before the student began GED treatment, he exhibited upwards of per month. (T-168) Now his major behaviors are near zero. (Id.) The student understands his entire program. (T-170) He sees the student a few times per week for a good half hour and sees him periodically in the classroom. (T-170) The student’s , they have and decreased the frequency of the . (T-173)

The witness stated that the student is working in curriculum. (T-174) He believes that there are . (Id.) There is also a teaching assistant, but the student has a 1:1 staff. (T-175) The student is . (T-175-6) He is and should be in about the . (T-176) The student has been the for several weeks in a row. (T-176) He believes that the student is . (T-176-7) The student chose to be faded from PM every day. (T-177)

The witness stated that the student is trouble socially. (Id.) He does have some classroom friends. (Id.) There was an students and asking them to “flew back.” (T-181) The student has . (T-182) IEP and also signed by a physician. (Id.)

On cross examination, the witness testified that the student has been receiving the GED application for the past six years except for a couple of months when the new NYS regulations were being discussed. (T-186) A “level ” is ; “level 3 aversives” include the . (Id.) He removed the “ from the student’s . (T-187 & P-W)

The witness stated that if the student exhibited behaviors between the hours of 9:00 AM and 12:00 PM, he would be placed back into his devices and receive a GED application within (30) minutes of the . (T-190) The student has been faded several times. (T-191) The student began on and over time has moved down to three. (T-192) There has been some regression in his body the devices may be applied. (T-195) The device cannot go across the chest or on the spine. (T-196) The physical before they go onto the GED. (T-197)

The witness stated that if the student were to the application have no control over that. (T-200) If the device needs to be it. (T-201) There are occasions when the device doesn’t work as it is supposed to. (T-202) The application must be delivered within (30) minutes of the . (T-203) Students at the private school are never left alone with each other. (T-207) also warrant an . (T-209)

The witness stated that anytime the is not available, the increase. (T-211 & D-

10) When the student goes home, small children do not stay there. (T-212) The student does not go to the movie theatre in the community. (T-214) The has a stronger voltage than the and is used on just a few clients who have shown habitation to the . (Id.) The verification process take no longer than (30) seconds. (T-226) There is a live monitoring system that records everything that happens in the room. (T-227) Over the student’s entire time at the private school there has been a -230)

The witness stated that the is not an intervention that occurs in isolation, but alongside their . (T-235) The in isolation is not a . (T-235-6) The student is not currently on any medication for his behavior. (T-236) He was slowly weaned off of his medications by the consulting psychiatrist. (T-236)

On re-direct examination, the witness testified that movement limitation was utilized during times when the student was transported because he had attempted to run away and would become extremely violent. (T-239) Movement limitation and are never used together for the student. (T-240) There was no re-cross examination of the student. (T-241)

The Parent’s second and final witness is the student’s guardian since he was (4) years old. (T-242) She stated that the student was placed in a residential program at the recommendation of his school teacher and the hospital in March of 2005. (T-243) She understands how the and has consented to its use. (T-244-5) The student has improved academically and in . (T-246) He never uses the device during home visits. (T-246 & 251) Home visits last about two or three weeks. (T-247) She does not believe the student is ready to be . (Id.)

On cross examination, the witness testified that she visits the private school and has the case manager’s personal cell phone number. (T-248-50) The student is never allowed around any children unsupervised. (T-254) The student ran away when he visited in August and was found in Brooklyn. (T-254-5) The student also admitted to taking one of her items. (T-258) She does not believe the is punishment. (T-261) . (Id.) There was no substantive testimony developed during the witness’ re-direct examination. (T-263) There was no re-cross examination of the witness. (T-264)

During voir dire by the undersigned, the witness stated that she did not attend the court proceeding in Massachusetts but that they send her all of the court paperwork. (T264-5) There was no substantive testimony developed during the witness’ re-re-direct examination. (T-271-3) There was no re-re-cross examination of the witness. (T-273)

FINDINGS OF FACTS & DECISION

I first turn to the question of which party bears the burden of proof in this case. Under the IDEA, the burden of proof in an administrative hearing is placed upon the party seeking relief. (Schaffer v. Weast, 546 U.S. at 59-62). However, on August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016).

In this case, the Parent does not seek tuition reimbursement, nor has she unilaterally placed the student at the New York State approved private residential school. (T-111, 132-3, 243 & SRO No. 11-053) What’s more, the DOE has approved the student’s placement at the private school and has agreed to fund the same. (T-59, 63, 122, 127 & D-5) I agree with the Parent that the Burlington/Carter analysis does not apply to this case, because it was the agency that originally placed the student thereat. (T-35-6, 40) For the reasons stated above, I find that it was the agency’s burden to prove that the removal of “aversives” from the student’s IEP is appropriate.

The agency proffered that the only decision to be decided herein is whether “aversives” are appropriate for the student. (T-59 & 109) The DOE argues that the student has been receiving aversives for six years and that they are obviously not working. (T-100, 110 & D-10) The agency further argues that the use of aversives for the student is strictly a punishment paradigm. (T-110 & 128) The Parent agrees, stating that it is her understanding that the appropriateness of the student’s overall private residential school program is not really an issue in this case. (T-33) The issue is that the CSE did not agree that the student should continue to receive “aversive therapy.” (T-33 & 130)

I disagree with the DOE’s assertion that aversives are not working for the student. There is evidence in the record that the student has made progress at the private school and that prior to being the and reviewed and re-evaluated on an annual basis. (T-113-4, 149-50, 152, P-L & P-N)

The student has been removed from “ ” for several of his behavior categories, has had the number of his lowered and is said to be doing very well. (T-154-5, 191-2) Before the student began , he exhibited upwards of per month and now his major . (T-

168) is said to have decreased the frequency of the student’s dangerous behaviors. (T-

173) Finally, the student is performing at or about his age level and has been the academic award winner for several weeks in a row. (T-176) The record does not support a finding that the student’s , consisting of the application of a at movement limitation at times, is not working for the student. (T-239-40)

According to the DOE, the regulations state that an IHO is not barred from putting aversives onto an Individualized Education Program (“IEP”), but there has to be a procedure for doing so set up by the State Education Department back in 2006. (T-60) The agency states that a “child-specific” exception is required from a panel of experts. (Id.) An IHO cannot substitute his or her judgment over that of the State Department of Education as per Regulation 200.22. (T-60-1)

The Parent argues that the State Review Officer (“SRO”) has held that in a situation where “ and an agreement cannot be reached, an application has to be filed with the State Review Panel for an advisory opinion about whether the aversives are appropriate. (T-37) However, in this case, the agency did not file the application with the State Review Panel, which consists of since the regulation was set up in 1976. (T38-9)

I have reviewed Regulation 200.22 and find that it sets out a protocol for the agency to follow before utilizing aversive treatment. I find no support in the regulation for the DOE’s assertion that a hearing officer must follow the protocol specified, especially in a case where there is no evidence that agency has followed the protocol laid out for it in the regulation. I agree with the DOE that the regulation, as I read it, does not bar an IHO from finding that avervises are appropriate for a student.

Here, as in SRO No. 08-015, the DOE argues that the fact that the student requires aversive behavioral interventions demonstrates the student has not been successful at private school. It is important to note that I that case also, the hearing record did not contain information indicating that the agency complied with the procedures for considering whether a child-specific exception was warranted. (SRO No. 08-015, citing, 8 NYCRR 200.22[e]) There, the SRO reminded the DOE that whenever individual members of a CSE, be it the parent, the district or other providers, are considering whether a child-specific exception is warranted for a student whose behavior impedes learning, the school district must submit a written application to the Commissioner of Education seeking a recommendation from a panel comprised of professionals with appropriate clinical and behavioral expertise. (SRO No. 08-015, citing 8 NYCRR 200.22[a], [e][3]-[6], [8] & 8 NYCRR 200.1[r])

In SRO 08-015, the State Review Officer ordered an independent psychiatric evaluation of the student and remanded the case back to the CSE to determine appropriate services and an educational placement for the student. Here, the Massachusetts Probate Court approved aversive treatment for the student on July 15, 2010, modified the student’s BIP May 13, 2011 and a summary was conducted on July 28, 2011. (P-L, PN & P-V) Under the circumstances, I find that there is no basis in the record to suspend the student’s receipt of aversive treatment, pending review by the NYS panel of experts and a re-convening of the CSE to consider that panel’s recommendations.

NOW, therefore, it is hereby

ORDERED that the student shall continue to receive his court-approved aversive treatment at the NYS approved private school, until such time as the DOE complies with Regulation 200.22, and the CSE, after appropriate re-evaluation of the student and consideration of all of the student’s available public and private evaluations, determines that aversive treatment is not appropriate for the student. DATED: April 9, 2012

________________________________

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:dl

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 ON AUGUST 12, 2011

PARENT

A Impartial Hearing Request, dated 7/1/11, 5 pgs. B Department of Education Due Process Response, dated 8/4/11, 4 pgs. C Findings of Fact and Decision, dated 5/12/2011, 21 pgs. D IEP, dated 3/24/2006, 14 pgs.

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 3, 2011

PARENT

None

DEPARTMENT OF EDUCATION

1 Due Process Complaint, dated 7/1/11, 5 pgs. 2 Due Process Response, dated 8/4/11, 4 pgs. 3 IEP dated 3/18/11, 11 pgs. 4 CSE Meeting Minutes, dated 3/18/11, 2 pgs. 5 Signed STAC-1 Form, dated 9/7/11, 2 pgs. 6 Memo Re: New Requirements for s, dated 6/22/06, 12 pgs. 7 Procedures for Exception to use s, Undated, 5 pgs. 8 Motion to Dismiss, dated 10/3/11, 5 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 16, 2011

PARENT

E IHO Findings of Fact and Decision in Case Number 108986, 10/15/07, 21 pgs. F Amended Complaint Caption in Alene vs. New York State Education Department, Undated, 3 pgs. G First Preliminary Injunction Order in that Case, dated 9/8/06, 7 pgs. H Second Preliminary Injunction Order in that Case, dated 10/2/06, 3 pgs. I Decision in that Case, dated 2/24/10, 14 pgs. J New York State Education Department Instructions, dated 8/2006, 2 pgs. K New York State Education Department Letter to Sally McKay, 2/12/07, 4 pgs. L Proposed Modification BIP Treatment Plan, dated 5/13/11, 43 pgs. M Affidavit of Nicole Matthews, dated 7/18/11, 6 pgs. N Massachusetts Probate and Family Court Order and Findings of Fact, dated

7/15/10, 2 pgs. O FBA and BIP, dated 11/30/10, 10 pgs. P JRC Quarterly Progress Report, dated 6/2010 through 9/2010, 12 pgs. Q JRC Quarterly Progress Report, dated 9/2010 through 12/2010, 12 pgs. R JRC Quarterly Progress Report, dated 12/2010 through 3/2011, 13 pgs. S JRC Quarterly Progress Report, dated 3/2011 through 6/2011, 8 pgs. T JRC Weekly Behavioral Charts, dated 9/2011, 10 pgs. U Student Report Card, 2010-2011, 1 pg. V Neuropsychiatry Summary, dated 7/28/11, 4 pgs. W Treatment Summary, dated 9/27/11, 3 pgs. X Program Description, dated 9/27/11, 7 pgs. Y Class Schedule, Undated, 1 pg. Z Williams, Betty Fry, Williams, Randy Lee, dated 2010, 28 pgs. AA SRO Decision, Number 11-053, dated 6/23/11, 5 pgs.

DEPARTMENT OF EDUCATION

9 An Urgent Appeal to the United Nations, Special Rapporteur on Torture, copyright date of 2010, 66 pgs.

10 Documents from the Student's Private School, Various dates, 39 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 2, 2012

PARENT

BB Weekly Charts from JRC, Various dates, 13 pages

DEPARTMENT OF EDUCATION

None