Impartial Hearing Decision

FINDINGS OF FACT AND ORDER

Case Number Student's Name L. Date of Birth

District School District

Dates of Pre-hearing March 8, 2012 March 23, 2012 March 29, 2012

Date of Hearing: April 16, 2011

April 17, 2012 May 1, 2012 May 2, 2012 May 3, 2012 June 29, 2012

Hearing Requested By Parents

Record Close: July 5, 2012

Hearing Officer Sharyn Finkelstein

INTRODUCTION

I was appointed to hear the matter of and the School District pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1416(f) (1) on January 30, 2012.(Exhibit IHO I) Mr. was the attorney for the student and family. Ms. was the attorney for the District. A pre-hearing conference was held on March 8, 2012 in order to determine how we were going to proceed. Mr. advised us that he was going to amend the complaint to include both years in order to avoid unnecessary duplication of proceedings. By correspondence dated March 20, 2012 the parents moved to amend their due process complaint. (IHO Exhibit III) In the request the parties moved for a bifurcated due process hearing and requested a pendency hearing. In response, I granted the amended request and held another pre hearing conference on March 23, to discuss the issue of pendency and how we were going to proceed. Ms. opposed any pendency . Another pre-hearing conference was held on March 29th. I determined that pendency was not appropriate. (See Findings and Conclusions) The time line began again because of the amended complaint, but the parties did agree to waive the remainder of the resolution session. We scheduled and held hearing on April 16, April 17, May 1, May 2, and May 3 all prior to the need for any extension of the time line. On May 3 the parties informed me that they had come to an agreement which involved placing the student at a residential setting. They jointly requested an extension of the time line which I granted on that day. Although I do not normally adjourn or extend for settlement purposes it was clear that this matter involved different considerations than the typical hearing. In this case the parties did have an agreement in principal and were not attempting to obtain more time in order to negotiate or settle the matter. The purpose of the additional time was to give the opportunity to the parties to do what was necessary to implement this type of placement. This involved the student being observed and much paperwork. The mother who was present was very pleased with this development and it seemed possible that a residential placement might even be found the very next day.(Tr. 711-712) Everyone was very optimistic , however, the parent was not comfortable withdrawing the matter in case nothing was resolved. In light of the fact that we were very much on time and 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 in this matter. Accordingly, the joint request for extension of the compliance date was granted. The next two scheduled hearing dates were withdrawn. We agreed that if the parties did not have a placement secured in the next forty days we would immediately resume the hearing. I contacted both parties approximately a month later to find out the status of the case. I held another pre-hearing conference on June 11, 2012 to determine the status. Ms. had requested another extension of the time line because they had now secured a placement, which was different from the one that had been anticipated on the last day of hearing, and needed to finish the paperwork. Mr. advised me that the parent had already completed everything that was required for her to do for the placement. Mr. advised me that he was unable to withdraw the case, based on prior history, until he was sure that the placement was going to be implemented. Again, I weighed the request and determined that it would be counter productive to deny the request and not allow the District to complete the paperwork. I made it very clear that this was the last extension. I adjourned the matter until June 29th in order to give the District a couple more weeks which should have been more than enough time. I reinforced at the conference and by emails that I would not be adjourning this matter again. I reminded the parties a week prior to the hearing that I would not be adjourning the matter again. Two days prior to the final hearing date, I received an email from the Parent requesting an adjournment because the parties were working very hard to resolve the matter. I denied the adjournment. This is no way reflected that I did not think the parties were making additional attempts to settle the matter, however, since settlement negotiations are not a reason to adjourn and since the parties were already given two extensions since our last date of hearing, I could not justify putting this matter over again. I was concerned that this would be a continued pattern. On June 29th the parties appeared at the hearing. I expected the District to continue presenting their case. The parties jointly submitted a copy of a proposed agreement and requested that I consider this in making my decision.(Exhibit Joint A) I have gone over all the transcripts and looked at all the evidence that was submitted including the proposed agreement and have made my decision accordingly. Attached are names and titles of persons who appeared on all dates of the hearing and of evidence that was submitted.

BACKGROUND

is a twenty year old boy with and . He is profoundly cognitively impaired, non verbal, self -injurious and combative. He is classified with (Exhibit Parent 10) The classification is not in dispute. has acute medical needs including a history of , and He engages in . . had been in a placement through the District (Tr.75) In April 2010 he developed leading to (Tr. 75) He was in the and the Hospital for many months and was discharged from the hospital in March 2011. (Exhibits Parent 11 and 12) The District's Committee on Special Education (“CSE”) met and developed an Individualized Education Program (“IEP”) and recommended a residential treatment placement for (Exhibit Parent 10) He was placed in an interim program, the (“ ”) program. The District sent out applications on 's behalf to various facilities in New York state residential and received a majority of rejections. (Tr. 604) Packets were later sent to potential out-of state- placements. was accepted by the in in June 2011 with certain provisions. One of the conditions required the District to provide a 1:1 aide for 16 hours. In August 2011 the CSE met and again recommended a residential placement for and specifically named on the IEP for the 2011-12 school year. The New York State Education Department was about to remove from its list of approved residential placements. (Tr. 233-234) A CSE meeting was held on January 5, 2012, after this information was known. As a result of the meeting they recommended be placed in a class in public school. Everything else in the IEP remained the same as the one from August 10, 2011. In March 2012 the CSE met and recommended a Residential Placement for for the 2012-13 school year. (Tr. 618) The parents brought this hearing because had still not been placed in a residential placement. (Exhibit IHO III) The parents seek compensatory services for each day of the later part of the 2010-11 school year and for the entire 2011-12 school year in which did not receive a residential setting. On the last day of hearing had been accepted into . (Exhibit W) which is a State approved residential placement for the education of disabled students.`

WITNESSES

has been employed by the for the past eleven years. She is the CSE chair and case manager for out of district placement students. was a part of her caseload. She participated as the CSE chair at the June 6, 2011 IEP meeting for his annual review. They recommended that would continue at for the 2011-12 school year.

The CSE reconvened in August 2011 because of concerns that Mrs. had expressed with respect to s aggressive behaviors and they recommended a residential placement. (Tr. 137) was actually identified as the school and there were representatives from at the meeting. (TR. 137)

is a Senior Clerk-Typist at the School District. She had been aware that there was an IEP for that had recommended a residential placement. (Tr. 531) She testified to the best of her knowledge about the steps that had been taken to follow through with s recommendation. I note and respect that her specific knowledge was limited in this matter. I appreciate Ms. 's unfamiliarity with testifying and did my best to explain to her that this hearing was not about her but to try and get at the sequence of events which took place during her involvement (even limited) of the matter.

is the supervisor of case management which takes care of out-of district placements, including , private day schools and residential settings. (Tr. 570) She acknowledged that from the time they made the recommendation for residential placement in August until today is still attending the class. (Tr. 594) She acknowledged that the same goals were used in the June 6, 2011 IEP (DISTRICT 1) She testified that on August10, 2011 (EXHIBIT 70) the team recommended a residential setting. (Tr. 596) She explained that they set up a meeting on January 5, 2012 immediately after learning that Mrs. had satisfied all the requirements for to be admitted into She testified to receiving a letter that was no longer on the approved list. (Tr. 603) She acknowledged that the meeting for the 2012-13 school year resulted in a recommendation of a residential setting. (Tr. 614)

FINDINGS OF FACT AND CONLCUSIONS OF LAW

Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Mackey v. Bd. Of Educ 386 F.3d 158, 163 [2d. Cir. 2004]. The Second Circuit has proffered three possible definitions of “then current educational placement”: (1) the placement described in the student's most recently implemented IEP, (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; and (3) the placement at the time of the previously implemented IEP. Application of the Bd. Of Educ., Appeal No. 05-006) In this case has never actually been placed in the residential setting which is the focus of this hearing. The purpose of pendency is for the student to “stay put” and I find that the request for pendency had to be denied.

One of the main purposes of the Individuals with Disabilities Education Act ( IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

In this case it is undisputed that the District had recommended a residential placement for the latter part of the 2010-11 school year and the 2011-12 school year. It is undisputed that the CSE has failed to implement its recommendation for a residential placement. At this point there is no reason to continue discussing the reasons for this failure. No one is disputing that requires and is entitled to a residential setting. I find that must be placed in a residential setting. I find that in this case the residential setting is the least restrictive setting in order for his needs to be properly addressed. I find that in this case the residential setting is the least restrictive setting in order for his needs to be properly addressed.

The Student has been accepted into the which is State approved residential placement for the education of disabled students. I find that this is an appropriate setting.

Compensatory education is an equitable remedy for additional services and/or instruction provided to a student after he or she is no longer eligible to receive instruction, which may be awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period. See Mrs. c v. Wheaton, 916 F.2d 69(2d Cir. 1990); Burr v Ambach 863 F.2d 1071(2nd Cir. 1988). See also, Board of Ed. Fayette County, Ky v. .M 478 F.3d 307 (6th Cir. 2007), cert. Denied. 128 S.Ct. 693 (2007), o remand, 2008 WL 65321 (E.D.KY.Jan 03, 2008; Reid ex rel. Reid v. District of Columbia, 401 F.3rd 516 (C.A.D.C 2005)

In this case the evidence and testimony including from District's witnesses, indicates that was mandated by his IEP to be placed in a residential setting over a year ago. I find that the District denied FAPE during the latter part of the 2010 and the entire 2011-12 school years. I find that this constitutes a gross violation of the IDEA for a substantial period of time. There was no evidence at the hearing that would justify the District's failure implement their recommendation on the IEP. The evidence supports the granting of compensatory damage.

The parties submitted into evidence a proposed agreement which they have requested to be incorporated into an order. I find that these terms will provide with a FAPE and will provide appropriate compensatory services.

ORDER

A) shall immediately be transported and placed at . B) The District shall provide with with a 1:1 aide for 6.5 hours in his educational day and 8.5 hours in the residence on school days and 15 hours each day on non school days. C) The District shall provide with an extended school year to benefit from education.

who shall age out of entitlement to Individuals with Disabilities Education ACT (“IDEA”)

services on June 2014 when he turns 21, shall receive an additional year of two times a week and one time a week and 1:1 aide for his waking hours in an appropriate adult services' program from September 2014 to June 2015. D) The District shall assist the Parents in transitioning from IDEA services to adult services.

The parents shall cooperate with the transitioning of to an adult facility and the District agrees to provide the Parents with assistance to enable to transition to a suitable adult care facility. The District shall fund the provision of the and 1:1 aide in a non-hospital adult care facility unless otherwise funded by a different source. E) The District shall provide suitable transportation of the student from 's home to the residential placement at the commencement of the school year and from the residential placement to his home at the conclusion of the school year, and no more than four additional trips to and from the residential placement, except if additional trips may need to be provided for the periods during which the residential placement is closed.

Dated: July 5, 2012

Sharyn Finkelstein Esq. IHO