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: July 24, 2012

September 28, 2012

October 4, 2012

December 20, 2012

January 3, 2013

February 4, 2013

March 11, 2013

Actual Record Closed Date: April 9, 2013

Hearing Officer: Michael S. Lazan, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 24 2012

Attorney — Student

Attorney (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2012

Attorney (Via Telephone) — Student

Attorney (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2012

Attorney — Student

Parents

Attorney — DOE

CBST (Via Telephone) — DOE

Admissions (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20, 2012

Attorney — Student

Attorney — Student

Parents

Attorney — DOE

Social worker (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2013

Attorney — Student

Attorney — Student

Admissions (Via Telephone) — Student

Parents

Attorney — DOE

Attorney — DOE

Principal (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 4, 2013

Attorney — Student

Attorney — Student

Parents

Clinical Social Worker (Via Telephone) — Student

Residential Life Skills (Via Telephone) — Student

Teacher (Via Telephone) — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 11, 2013

Attorney — Student

Attorney — Student

Parents

DOE Attorney — DOE

By Amended Due Process Complaint dated September 11, 2012, the matter of came before me as impartial hearing officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.

The original complaint was filed on June 29, 2012. The parties appeared before this Impartial Hearing Officer (IHO) on July 24, 2012 and agreed on a pendency placement. (IHO Exh. 1) A prehearing conference was conducted in regard to the original complaint on September 7, 2012. (IHO Exh. 2) Upon the application of the parties on the 10th of September, the decision date in this matter was ordered to be reset to October 9, 2012. The parties were provided notice through email and written notice. The reason was availability of witnesses. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 3)

After the filing of the Amended Complaint, the matter did not resolve during resolution.

The parties convened on September 28, 2012 to go through the issues in the Complaint. (11-32) A hearing date was conducted on October 4, 2012. Another hearing date was set for November 5, 2013, but this was adjourned due to circumstances relating to Hurricane Sandy. Upon the application of the parties on the 12th of November, 2012, the decision date in this matter was ordered to be reset to December 12, 2012. The parties were provided notice through email and written notice. The reason was the need to present additional testimony and witnesses. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 4)

Upon the application of the parent on the 10th of December, the decision date in this matter was ordered to be reset to January 10, 2013. The parties were provided notice through email and written notice. The reason was the need to present additional testimony and witnesses, and . I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. (IHO Exh. 5)

Another hearing date was conducted on December 20, 2012. Another hearing date was conducted on January 3, 2013. Upon the application of the District on the 4th of January, 2013, the decision date in this matter was ordered to be reset to February 9, 2013. The parties were provided notice through email and written notice. The reason was to allow both sides to complete their cases including presentation of witnesses, evidence, and closing arguments and/or briefs. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the parent. (IHO Exh. 6)

A hearing date was set for January 24, 2013. This date was adjourned at the request of the parent because of witness availability without objection from the District. Another hearing date was held on February 4, 2013. A hearing date on February 8, 2013 was adjourned by the parent due to witness availability without objection from the District. Upon the application of the parent on the 10th of February, 2013, the decision date in this matter was ordered to be reset to March 10, 2013. The parties were provided notice through email and written notice. The reason was the need to present additional testimony and witnesses, and complexity of issues. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this is an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 7)

A final hearing date was held on March 11, 2013. Upon the application of the parent on the 11th of March, 2013, the decision date in this matter was ordered to be reset to April 10, 2013. The parties were provided notice through email and written notice. The reason was the need to present briefs to the IHO. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 8)

Upon the application of the parent on the 7th of April, 2013, the decision date in this matter was ordered to be reset to May 9, 2013. The parties were provided notice through email and written notice. The reason was the need to present briefs to the IHO after a case involving considerable testimony and complex issues, and for the IHO to review the briefs to render a decision. I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the student’s educational well-being. There was no showing of any prejudice to the District. There was no objection from the District. (IHO Exh. 9)

Briefs were received by this IHO on April 9, 2013, which is the record close date. (IHO Exhs. 10, 11)

FINDINGS OF FACT

The Student is a who is eligible for services as a Student with (Exh. 4) The Student was . (418) The Student has been diagnosed with , , and . (Exh. 4, 202,

416) There is difficulty . (419) The Student is “ ” and prone staff.” (201) She has limited understanding of her environment. (202)

The Student (Exh. 4) She needs a small student to teacher ratio, with frequent reteaching of the material and a structured multi-sensory approach. (Exh. 4)

The Student has difficulty between staff. (221-222, 242, Exh. D) Consistency in her programs and routines is very important to her. (234, 416, 420, Exh. D) She has a .

(242) She would need a lot of support to change school settings. (242) She does not view the , and has an with . (417) Change is very difficult for the Student. (532) She needs a specific behavior intervention plan . (417) when limits are set, when she is perceiving that she is , when environments are unknown, when there is a change of staff or a caregiver, when there , when she feels that she cannot accomplish the tasks that are presented to her. (420)

The Student was placed in five different schools until she was Cushing in March, 2010 after . (203, 418, 584-598) The Student had a very difficult time during the first year and a half at the school. (421) The Student has with peers in and out of the classroom. (532) Overall, the Student has done well at the school in terms of her ability to identify coping skills, to establish relationships with peers. (441-442, 246) The Student has been stable at the school, the school. (246)

The school provides a positive behavior plan which provides praise for positive behaviors and reduces the amount of attention paid to negative behaviors. (429, 504, Exhs. G, Q) The Student receives an and agitation. (430-431) This plan is implemented across all settings. (433-434) The plan has resulted , though the school continues to see . (442-443, 513) The Student shows more . (517) The plan indicates that the Student needs verbal reminders, a schedule, consistency across staff, and that non-preferred activities should be linked to preferred activities. (Exh. G) It also indicates that the Student needs the staff to refrain from responding when . (Exh. G) The Student requires praise and a lot of attention if she does the right thing. (Exh. G)

The Student receives related services at the school, , therapy occupational therapy. (451-453)

The Student was in the , level from grade 1-3. (526) There are two teaching assistants in the classroom. (526) In class, the Student . (532) The classroom work focuses on social skills, pre-vocational work. (533, 554) There is work on reading, but the Student . (534-535) The school will sometimes provide 1-1 instruction. (537) There is work on writing, math. (538-542) There is instruction on technology, history, science. (547-550) There is work on generalizing skills within the community. (556) The Student has made academic progress at the school. (246) The Student has done well in terms of class participation. (Exh. 4) She has made progress in terms of , and have decreased at the school. (Exh. 4) She has made good progress in terms of being . (Exh. 4)

The program provides daily schedules, a lot of predictability, concrete limits. (517)

Schools have historically been placed on this Student’s Individualized Education Program (IEP. (644)

A review was conducted for the Student in February, 2012. (Exh.20) The Committee on Special Education (CSE) was provided with a behavioral support plan that had been in effect . (455-456). The team recommended a full-time therapeutic placement for the Student and “deferred” the placement recommendation to the District’s Central-Based Support Team. (CBST) (Exh.20)

The IEP includes counseling goals that relate to the Student’s difficulties with . (Exh. 20) The IEP included goals in math, writing, daily living skills, cooking, reading, related services, awareness of relationships and boundaries, taking space as a coping strategy, engaging in appropriate conversation. (Exh. 20) The IEP also included counseling goals to address frustration and non-compliance with a task demand. (Exh. 20)

A FBA was produced that addressed the Student’s . (Exh. 5) The FBA defined , to be measured by a frequency count. (Exh. 5) The FBA indicates that a change to the Student’s environment . (Exh. 5) Other triggers include a non-preferred task demand, denied access to preferred staff members, setting of limits. (Exh. 5) A positive behavioral system is recommended with a preferred reward system. (Exh. 5) The resultant BIP addresses the Student’s , but does not recommend a system. (Exh. 6)

The CBST then found a placement at . (53, Exh. 14)

The school is located on the top in . (286) It provides related services and academics. (290) Students received individual and group counseling. (292-293) There is a psychiatrist on staff. (309) The placement includes a residential component, and provides students with meetings to . (291) The school has a “ . (629) The Student was considered for the at the school. (109-110)

On June 18, 2012, the parent sent a letter to the District indicating that she did not want to place the . (Exh. 16)

A June 25, 2012 CSE meeting was held to for the parent to discuss the placement at . (132, Exh. 3) Prior to this meeting, the District representative, , told the parent “off the record” that the decision to place the Student was totally unfair and “ridiculous.” (628) Ms. indicated from the District felt the same way. (628) Ms. Berger indicated: “what were they thinking of?” to the parent. (628) was not considered at this meeting. (632)

At the meeting were , a related services provider/special education teacher, the parent, Ms (by phone), from (by phone), from (by phone), Ms. from (by phone), (by phone, from (by phone), Ms Ms. from (by phone), from (by phone). (Exh. 4) During the meeting, every time the parent expressed concerns about Crotched Mountain, Ms. would send the parent a that she was doing a great job advocating for her child. (628-629) At the end of the meeting, Ms. stated that she would have to send the case “back to the state.” (643) Ms. told the parent that she was not putting any school on the IEP. (644) The IEP in fact did not include the name of the school. (Exh. 4) The parent understood that the CSE was sending the case back to CBST for another placement. (696697)

The parent was never provided with a Final Notice of Recommendation indicating that was the designated placement. (652)

A Due Process Complaint was filed on June 29, 2012, indicating that the parent was never provided a placement. The parent was never contacted by the CSE to inform her that was the recommended placement. (652)

CONCLUSIONS OF LAW

In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to District except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.

Parents must have sufficient information in order to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 186 (2d Cir. 2012) This principle has been extended to the placement decision in a recent decision . D.C. ex rel E.B. v. New York City Dep’t of Educ., 113 LRP 12931 (S.D.N.Y. 2013)(parent discovered on visit that placement would not address student’s seafood allergy as per IEP requirements; FAPE denial found).

The District should show that it offered parents a FAPE. 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 record indicates that were she to be transferred to another school setting. In fact, the FBA specifically indicates that the Student. The District proposes not only to change some of the Student’s staff, but the Student’s entire school environment.

Districts have discretion in terms of selecting school settings for a particular Student. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009). However, the District does not give the District “carte blanche” over the school setting. Id. The District cannot provide a Student with a school setting that would deny the Student a FAPE. Id. In this connection, it is noted that parents may file Due Process Complaints about a wide variety of issues. Lillbask v. State of Connecticut, 397 F.3d 77 (2d Cir. 2005). As Judge Raggi stated in Lillbask:

IDEA requires a state to implement procedural safeguards providing parents or guardians with "an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child." 20 U.S.C. §

1415(b)(6) (emphasis added). This broad language suggests that Congress did not intend to exclude from consideration any subject matter -- including safety concerns -- that could interfere with a disabled child's right to receive a free appropriate public education.

Accordingly, courts have held that a transfer between schools can deprive a Student of FAPE if the Student’s educational needs support a continuation of services at the previous school setting. Bd. of Educ. v. Steffey, 45 IDELR 6 (D. Md. 2006)(change of setting would have been ill-advised and potentially harmful); Delaware County Intermediate Unit #25 v. Martin, 831 F. Supp.1206 (E.D. Pa. 1993)(Student’s needs required continued use of LOVAAS program); Block v. District of Columbia, 748 F Supp. 891 (D.D.C. 1990)(mid-year transfer would have had significant impact on the Student’s emotional state); Holmes v. District of Columbia, 680 F. Supp. 40 (D. D.C. 1988)(same); Burger v. Murray County School Dist., 612 F. Supp. 434 (N.D. Ga. 1984)(“obvious advantages inhere to any child who is permitted to learn in a stable environment. This advantage may have even more meaning to the handicapped child”).

The record is clear that this Student has and including , . The Student is . The Student takes a long time to adjust to a particular setting, and requires consistency in terms of school setting, staff, providers. The Student was hospitalized prior to her attendance at in 2010, attended 5 schools prior to her time at , and took over a year to adjust to the setting .

The parent indicates that it would not be safe to transfer this Student to yet another school setting at this time. There is persuasive testimony in the record to this effect. The Student does not view the world as a safe place, and has an extremely difficult time in establishing relationships with caregivers and peers. Indeed, the record indicates that the District’s own representatives were concerned that the Student would be improperly transferred from . The parent testified that the District representative, Ms. , told the parent “off the record” that placing the Student at was totally unfair and “ridiculous.” Ms. indicated that from the District felt the same way. Ms. indicated: “what were they thinking of?” to the parent. The District did not recall Ms. to dispute this parent testimony, and has not indicated that this parent testimony was inaccurate in their briefs. I should point out that this IHO found the parent credible in this proceeding.

The District argues that the IEP provides for enough interventions to address these issues, and that can implement the Student’s IEP and BIP. Districts are required to consider behavioral supports such as BIPs when a Student “exhibits persistent behavior that inhibits learning.” 8 NYCRR Sect. 200.22(b)(1)(I). A BIP must include a baseline measure of the problem behavior, intervention strategies, and a schedule to measure the effectiveness of the interventions. 8 N.Y.C.R.R. Sect. 200.22(b)(4).

The FBA and the record indicates that the Student requires a system. The point of an FBA is to obtain necessary information about the Student’s behaviors, leading to those behaviors being addressed in the IEP. R.E., 694 F.3d at 190. The District did “consider” a BIP, and did create a BIP. However, the BIP formulated at the February CSE meeting makes no mention of the system. The IEP also does not include language relating to the system. There is also nothing in the IEP or BIP about the need for consistency in the Student’s program, and the IEP and BIP do not require staff to refrain from reacting when the Student is engaging in . It is noted that the witness Mr. testified in very brief, conclusory fashion about how the Student’s would have been addressed at the school. In fact, the testimony of Mr. suggests that the school would only employ to address the (293), though there is nothing in the record to suggest would be enough for this Student given her significant .

The District explains that the decision to place the Student at is a function of , which was passed in 2005 and signed by in an effort to insure that out-of-state placements provide appropriate services for Students. Chapter 392 of the Laws of 2005. The intent of this law is to benefit “children who have been placed or who are at risk of placement in out-of-state programs and facilities, to provide New York state and local governmental agencies appropriate control and oversight over the financing and quality of care received by such children placed in such out-of-state residential facilities and programs.” There is nothing in that requires a school district to transfer an appropriately placed out-of-state student where a transfer would put the Student at risk of harm through transfer to another out-of-state placement.

It is noted that the parent was not provided with a final notice of recommendation in this case. The District must show it provided the parent with an offer of a school placement by the beginning of the school year in question. Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403 (S.D.N.Y. 2011); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560 (S.D.N.Y. 2007); Application of the Department of Education, Appeal No. 08-058; Application of the Board of Education of the Williamsville Central School District, Appeal No. 01-012; cf. Application of a Child with a Disability, Appeal No. 05-028. The District argues that the parent understood that Crotched Mountain was the recommended placement for the Student at the start of the school year. Though the District is not required to place a school setting on the IEP, see T.Y., the District did in fact place school settings on the Student’s IEP in previous years. When the District failed to place the school setting on the June 25, 2012, IEP, told the parent that the change in placement was ridiculous, and sent signals to the parent during the June 25, 2012 review to the effect that the parent was advocating appropriately for the Student, the parent was understandably under the impression that the District had in fact changed its mind and decided to send the case back to the CBST. Accordingly, I find that the parent did not know that the placement was the District’s final placement until well after the Due Process Complaint had been filed.

Given the above, I find that the District’s program and placement did not provide for the Student’s unique needs for 2012-2013. The cumulative impact of the above violations denied this Student a FAPE for 2012-2013. R.E., 694 F.3d at 191.^[1]

In regard to the remedy in this case, the parent argues that this matter should be remanded back to the CSE per the theory in SRO Appeal No. 12-062. See In re: Student with a Disability, 59 IDELR 205 (Appeal No. 12-062)(2012). There is no dispute that the Student was placed at in the previous school year and that the parent is seeking to continue that placement. The District witness, Ms. testified that is an appropriate placement for the Student. (246) After carefully considering this issue, I am persuaded that, in this matter, it is appropriate to apply Appeal No. 12-062. That is, since the District presented a defective IEP and proposed an inappropriate placement, the Student’s educational placement should revert back to the educational placement that was previously designated by the school district. As a result of the foregoing, the District is ordered to reconvene the CSE and revisit the issue of the Student’s educational program and placement in accordance with statutory and regulatory requirements. Dated: April 23, 2013

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 Complaint, 6/29/12, 2 pages B IEP, 3/19/10, 14 pages C Amended Due Process Complaint, 9/11/12, 4 pages D Clinical Summary, dated 2/6/12, 2 pages E Residential Summary, 1/2012, 3 pages F Specialist Service Checklist, dated 1/2012, 3 pages G Behavior Support Plan, 1/2012, 3 pages H Physical Education Level, 1/2012, 2 pages I Dated 1/22/13, 2 pages J NYS Education Document, n.d., 5 pages K Email , dated 6/19/12, 2 pages L Weekly Instructional Schedule, n.d., 2 pages N Classroom Framework, 2012/2013, 6 pages O Residential Curriculum List, 1 page P Residential Program Curriculum, dated 7/8/2012, 8/12/2012, 4 pages Q Revised PBIS Guidelines, dated 10/30/10 R Behavior contract, dated 8/2012, 1 page S Mental Status Updates, various dates, 3 pages T Letter from , dated 12/3/12, 2 pages U Progress Report, dated 10/31/12, 4 pages V Progress Report, dated 1/31/12, 7 pages W IEP, dated 2/5/12, 20 pages X Letter from , dated 1/28/13, 1 page

DEPARTMENT OF EDUCATION

2 Due Process Response, 7/6/12, 4 pages 3 CSE Notices, 6/7/12, 4 pages 4 IEP, 6/25/12, 15 pages 5 FBA, 2/7/12, 3 pages 6 BIP, 2/6/12, 1 page 7 Clinical Summary, 3/22/10, 11 pages 8 Social Update, 2/7/11, 4 pages 9 OT Update, 3/28/11, 2 pages 10 Update, 3/29/11, 1 page 11 Specialist Services Checklist, 3/11, 2 pages 12 Vocational Summary, 1/12, 5 pages 13 Progress Reports, 1/31/11, 7 pages 14 Placement Letter, 5/17/12, 3 pages 15 School Calendar, 7/11/12, 2 pages 16 Parent Letter, 6/20/12, 2 pages 17 17 E-mail from Parent to 6/4/12, 1 page 18 E-mail from Parent to , 6/15/12, 1 page 19 IEP Meeting Minutes, 2/6/12, 7 pages 20 IEP, 2/6/12, 13 pages 21 Brochure, 20 pages 22 Program Description 2 pages

IMPARTIAL HEARING OFFICER

I Interim Order, 9/7/12, 4 pages II PHC Summary, 1 page III Timelines Notice, 1/3/13, 1 page IV Timelines Notice, 1/3/13, 1 page V Timelines Notice, 3/2/13, 1 page VI Timelines Notice, 3/2/13, 1 page VII Timelines Notice, 3/2/13, 1 page VIII Timelines Notice, 3/23/13, 1 page IX Timelines Notice, 4/15/13, 1 page X Brief of Parent, 4/9/13, 31 pages XI Brief of District, 4/9/13, 19 pages

Footnotes

[1] I have considered the parents’ other allegations in the Complaint, and find that I need not reach them given my determinations herein. Application of a Student with a Disability, Appeal No. 09-072.