New York City Department of Education, Impartial Hearing Decision

AMENDED FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 19, 2011

October 7, 2011

December 2, 2011

January 18, 2012

Record Close Date: February 14, 2012

Hearing Officer: Jeanne M. Keefe, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 19, 2011

Attorney — Student

Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 7, 2011

Attorney — Student

Assistant CFO, (via telephone) — Student

CSE District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2011

Attorney — Student

Clinician — Student

Chairperson's Designee — DOE

CBST Case Manager (via telephone) — DOE

Case Coordinator, (via telephone) — DOE

— DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2012

Attorney — Student

Grandparent and Legal Guardian — Student

Chairperson's Designee — DOE

CBST Case Manager (via telephone) — DOE

Intake Coordinator, (via telephone) — DOE

CSE Psychologist, (via telephone) — DOE

— DOE

INTRODUCTION

On July 6, 2011 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”) 20 United States Code, section 1415 (f) (1), concerning a dispute involving the special education program of . (“the student”)

BACKGROUND

The student and requires a residential program in a state approved, non public school. The classification is not in dispute. The student is currently enrolled at the (“ ”) a New York State approved residential non public school. He was unilaterally placed at by his grandparent (“Parent”) in or around August 2010. It is his last agreed upon placement based on the unappealed final Findings of Fact in case # (Parent’s Ex. C) (tr.

10) The last Individualized Education program (“IEP”) was dated 5/18/11 (Parent’s Ex.

D) in which recommended services were deferred to the Central Based Support Team (“CBST”).

The DOE concedes that it has failed to provide the student with a free and appropriate public education (“FAPE”) Prong 1 of the Burlington/Carter three prong test.

THE DOE’S CASE

The Department of Education (“DOE”) argues that while they failed to provide the student with a FAPE it was because they were unable to create an appropriate IEP for 2011-2012 school year based on the lack of cooperation of the Parent. The IEP was referred to the CBST in order for it to be sent to a variety of schools for placement and once a placement offer was made it was to be returned to the Committee on special Education (“CSE”) so that they could reconvene and finalize the IEP. The DOE asserts that the case at hand is in essence about process and that the Parent failed to cooperate in that process. (tr. 292-293)

The first witness called was , CBST case manager. She testified that the CBST received the case on or about 5/20/11 and it was assigned to her as case manager on or about 5/26/11. (tr. 68-69) The case manager sent out approximately 17 IEP packets to various non public schools, on or about 5/27/11, which would be appropriate for the student. Of those schools only two expressed an interest in interviewing the student, ”). (tr.71)

A response form was received from dated 6/6/11 (DOE Ex. 2) which stated that the school had rejected the student’s referral and stated as follows: “Parent was contacted on 6/6/11 and stated she was not interested in placing with our agency due to our restraint policy and the fact that they are not video taped. Parent also stated that she is happy with her child’s current placement and has her lawyer working on this. Referral closed as Parent Refusal.”

A response form was received from which noted that the “Student and Parent refused interview a decision to accept/reject could not be made.” (DOE Ex. 3) Ms. Letendre noted the responses she received from in the CBST system which is referred to as SPIN (tr. 74)

In or around September 16, 2011 New York State Education Department (“SED”) received a reapplication for the 2011-12 school year for the student seeking continued placement in JRC. (DOE Ex. 4) This reapplication was sent by Ms. . (tr.78) The reapplication was rejected by SED based on the following: “There was insufficient justification of the reason for any rejections of in-state schools that have accepted the student for additional screening. Please note that the parent’s concerns should be considered but should not be the sole reasons to determine that an approved private school placement is not appropriate for the student.”

It was Ms. ’s understanding that because two in state schools had offered prescreening interviews and the Parent did not participate the SED rejected the reapplication. (tr. 78-79) As the SED rejection afforded an opportunity to cure the deficiencies Ms. called the Parent and informed her that the funding had been denied. She further told her that if she was willing to cooperate they could look in to the two schools again, go through prescreening process and appeal the SED decision. Ms. called the schools and was ultimately able to get a November 2, 2011 appointment for the Parent and student at but was unable to get another appointment with Hillside. The Parent agreed to go to the November 2, 2011 appointment at . (tr. 81-82) The Parent went to the appointment on November 2, 2011 without the student, met with the residential team and stated that she did not want the student placed with the program. (tr. 83) (DOE Ex. 5)

The second witness called was , Care Coordinator 2 . He testified that he was given the student’s referral for possible admission at . He described the program as a residential facility that serves youth who . He also noted that the school is state approved. In general he reviews the student’s package, going through to pick out key facts to see if there was anything which might disqualify. After that he calls the parents and if interested he offers them an interview. (tr. 127-128) He stated that the student looked like he would be well suited for their critical care program. The interviews with the parent and child could be done over the phone if necessary. (tr. 129-130) He spoke to the Parent over the phone and she told him she was not interested in placing the student at , she was happy with the current placement. He gave a brief overview of the program and the Parent asked if they video tape restraints and he said no. She stated that she had a lawyer working on it and that she might have said too much. He then closed out the case as a parent refusal (131-134) (DOE Ex. 2) He stated that he never interviewed the student as he did not get far enough in the interview with the Parent to set up an interview. (tr.139)

The third witness was , Intake Coordinator for Her duties include distributing referrals from the Central Based Support Team to the admissions team and coordinating interviews with the families. (tr. 227-228) Ms. contacted the students Parent to request an interview and the Parent said no, that the student was at and that she thought was the “pits”. (tr. 230) On 6/9/11 a response form was sent to CBST which stated that “Student and Parent refused interview a decision to accept/reject could not be made” (DOE Ex. 3) On November 2, 2011 the Parent attended an interview at and stated that she was not interested in a placement. (tr. 233)

On cross examination Ms. testified that when the team was at doing interviews in June, 2011 they attempted to interview the student but he refused. She stated that it were her understanding that contacted the Parent for consent for the interview and she gave it at that time though she had previously refused. (tr. 240-241) The fourth witness was , for the Committee on Special Education. He was present at the IEP meeting for the student as the District Representative and . The recommendation at the time was to defer to the CBST. He explained that the student was in a residential program and they believed at the time of review that a residential program was appropriate. The procedure was to defer the IEP to the CBST with a recommendation for residential placement. He estimates that he had done between twenty and thirty annual reviews for students at (tr. 248-249) He states that he explained the process to the Parent at the time telling her that if the CBST approved the recommendation of a residential program they would try to find one that was appropriate for the student within the State. This would involve the Parent working with case manager at the CBST and possibly interviewing at the schools. It was explained that they would have to fully exhaust residential programs within New York State before considering outside approved residential placements. He stated that they make that very clear in . (tr. 251)

On cross examination Mr. testified that he is not sure if the Parent was given a booklet of rights and responsibilities at the meeting. (tr. 263)

THE PARENT’S CASE

The Parent argues that the DOE has failed to provide the student with FAPE. It is further argued that the placement at is not a unilateral placement but rather is the last agreed upon placement based on a prior impartial hearing officer’s decision (Parents Ex.

C) and therefore is not subject to the 3 prong Burlington/Carter analysis. The Parent further asserts that there is no regulation which requires that a school district must exhaust in-state schools before considering an out of state placement for a student who is already in an out of state residential placement.

The first witness called was , Assistant CFO at . She gave testimony regarding the cost of tuition at ($247, 424.96) (tr. 36) and how funding is obtained from New York State.

The second witness called was , Clinician at He stated that he is the student’s treating clinician at . He testified that the student has had a long history going back to age . He has been all of which have been unsuccessful in . (tr. 159) and students. Mr. describes the student as one of his more challenging students. He participated in the IEP meeting of May 18, 2011 (tr. 164) He testified that the student receives services due to the . (tr. 172) The student has a detailed behavior program with the use of preferred reinforcers and rewards to maintain appropriate behavior. (tr. 174)

Mr. states that the student is making progress at , albeit slowly but that he is much better and more receptive to the strategies they are using. He also testified to the academic classes that the student is attending. (tr.181) It is Mr. ’s professional opinion that is an appropriate placement for the student. (tr. 188)

On cross examination Mr. testified that the District, in the course of the IEP meeting discussed the need to send the student’s case to the CBST and that it would be circulated to in state schools to see if the student would be appropriate for one of those schools. (tr. 189-190)

The third witness was , grandparent. She testified that the student was admitted to in August, 2010. (tr. 273) The student also has a brother at and he has been attending the school for approximately 5 months. (tr. 289)

In 2010 she visited several schools; the one she remembers is . She states that she visited the school with the student but that he was ultimately not accepted. (tr. 274276)

Ms. attended the May 18, 2011 IEP meeting. (tr. 276) After the meeting was over she was told that someone would send her something in the mail. She was under the impression that once the student was placed in that was where he would stay. She was unaware that she would have to go and look at schools every year, no one ever told her that. (tr. 278-279)

She states that she does not know who Ms. is and never received anything in writing from the DOE after the meeting. (tr. 279) She states that she was only contacted by one school, . She states that she was told that she had to set up a meeting and review the school. She said that she had just been at the school and was told that it was a process that she had to go through every year. She states that she had contact with the school in June and November. She does not remember being asked to provide consent for the student to be interviewed but would have if asked. (tr. 280-281) She believes that she gave permission to to have the student interviewed by other people. (tr. 282)

Ms. visited in November 2011 and met with the same people as in 2010. She states that when she asked what had changed from the prior year they told her they had gotten a smart board. Her main concern was the safety of the student and she was concerned that they would not video tape any instances where the student would have to be restrained. She states that they video tape everything at . (tr. 282-284)

Ms. states that she does not remember being contacted by . She states that the only school that contacted her . (tr. 285)

On cross examination Ms. agreed that when she visited in November she had already determined that the school was unsuitable for the student and would not have placed the student there. (tr. 286-289)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that the Burlington/Carter analysis is proper in this matter. The Parent relies on Application of a Student with a Disability Appeal No. 11-053. This case is distinguishable as it did not deal with a unilateral placement in a private school, nor did it seek tuition reimbursement. I find that the Parent, in the instant case, unilaterally placed the student and is seeking tuition reimbursement and therefore a Burlington/Carter analysis is proper.

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400-1482) has as its core tenet the assurance that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. 1400 (d) (1) (A); see Schaffer v. Weast, 546 U.S. 49, 51 (2005); Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a written IEP (20 U.S.C. 1401 (9) (D); 34 C.F.R. 300.17 (d); see 20 U.S.C. 1414 (d); 34 C.F.R. 300.320).

There is a three prong test that is the legal standard applicable a request for reimbursement for educational services: (1) were the services offered by the Department of Education inadequate or inappropriate; (2) if so, were the services selected by the parent appropriate; and (3) if so, are there equitable considerations to support the parents. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). Pursuant to N.Y. Education Law Section 4404 (1) (c) the burden to proceed on prong 1 is that of the School District.

I find that the DOE failed to provide the student with FAPE which the DOE acknowledges.

I find that the parental placement at issue has been reasonably calculated to confer an educational benefit to the student. I find the testimony, and documentary evidence submitted by the Parent support this finding. The Parent has the burden to prove that the services provided were “proper under the Act” Florence County School District v. Carter 510 U.S.7 at 12, 15 (1993); Burlington, 471 U.S. at 370, that the private school offered an educational program that met the child’s special education needs. The DOE did not address the educational program at The third prong of the test for tuition funding is whether the equities favor the Parent’s position. I find that the Parent did not cooperate with the DOE in the process of finding an in state residential placement for the student. The Parent did not agree to interviews with the two residential programs that contacted her in June, 2011 to participate in interviews. I credit the testimony of Mr when he states that he contacted the Parent and what her response was to his call. I credit the testimony of Ms. as to her interactions with the Parent in both June and November of 2011. It appears that a number of people made efforts to explain to the Parent her responsibilities as far as participating in interviews with residential in state schools to no avail. It would further appear that during the time period in question she was represented by counsel based on her own statements.

Even if I was to credit the Parent’s position that she did not understand the process in June, 2011 she certainly would have been aware by November 2011 when she was represented by counsel, in the middle of an impartial hearing on the very matter and being given the opportunity to interview in an effort to cure the defects in the application made to the SED to obtain funding for the student at . Still, the Parent testifies that she went to the interview with no intention of placing the student at the school.

In Application of a Child With A Disability Appeal No. 03-003 the SRO noted that equitable considerations should take into account such factors as “the parties compliance or noncompliance with state and federal regulations and the reasonableness of the parties’ positions.” The Parent’s contention that there is no requirement that a student already in an out of state residential program needs to exhaust in state residential placements is without merit. A review of Section 200.6 (j) (1) (iii) (e) of the Regulations of the Commissioner of Education includes, but is not limited to, the requirement that “in the case of a recommendation by the committee on special education for placement of a student in an educational facility outside of the state, documentation that there are no appropriate public or private facilities for instruction available within the state.” must be provided. There is no distinction made between a student just entering an out of state program and a student already in such a program.

In view of the foregoing I find that the equities do not favor the Parent.

ORDER

Therefore, it is hereby ordered that the Parent’s Due Process Complaint is dismissed. Amended Decision Dated: February 27, 2012 Original Decision Rendered: February 22, 2012

_____________________________

JEANNE M. KEEFE, ESQ.

Impartial Hearing Officer

JK: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 19, 2011

PARENT

A Impartial Hearing Request, 7/1/11, 2 pages B Due Process Response, 7/7/11, 3 pages C IHO Finding of Fact and Decision, 9/27/10, 8 pages

DEPARTMENT OF EDUCATION

None

DOCUMENTATION ENTERED INTO THE RECORD ON

PARENT

D IEP, 5/18/11, 14 pages E FBA and BIP, 1/24/11, 13 pages F Quarterly Progress Report, 6/11-9/11, 10 pages G Behavior Charts, 11/22/11, 7 pages H Program Description, 11/22/11, 4 pages I Treatment Summary, 11/22/11, 4 pages J Class Schedule, Undated, 1 page K Behavioral Educational Procedures atJRC, Undated, 7 pages L Distinguishing Procedures, Undated, 11 pages M Positive Program and Procedures, May 2002, 16 pages N Educational Progress for , 1/28/10, 9 pages O Jose P. vs. Amrock Decision, 1/5/82, 12 pages P Jose P. vs. Amrock Order, 7/8/82, 5 pages

DEPARTMENT OF EDUCATION

1 Student Placement, 7/7/11, 2 pages 2 Letter, 6/6/11 Response Form, 6/6/11, 1 page 3 Response Form, 6/9/11, 1 page 4 Letter, 10/7/11, 3 pages 5 Response Form, 11/14/11, 1 page 6 Email , Intake Coordinator, 6/8/11, 3 pages 7 Email , Intake Coordinator, 11/10/11, 1 page

IMPARTIAL HEARING OFFICER

I Statement of Ajournment and Extensions, Undated, 1 page