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: September 13, 2012

October 16, 2012

December 20, 2012

Actual Record Close Date: January 14, 2013

Hearing Officer: James McKeever, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2012

Attorney — Student

CSE- District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2012

Attorney — Student

CSE- District Representative — DOE

CBST Administrator — DOE

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

Attorney — Student

District Representative — DOE

PROCDURAL BACKGROUND

I was appointed to the matter on August 13, 2012. The Resolution Period expired on August 1, 2012. A Prehearing Conference was held on September 10, 2012. A pendency hearing was held on September 13, 2012. A pendency Order was issued on October 7, 2012. An Amended pendency Order was issued on November 19, 2012.

On September 13, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that there had been no prior requests for an extension and that the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to October 17, 2012.

On October 16, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been a prior request for an extension, a second extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to November 15, 2012.

On November 14, 2012, the parent and the DOE requested a 30-day extension of the compliance date based on the availability of their witnesses and because of the storm. I determined that although there had been a prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to December 15, 2012.

On December 17, 2012, the parent and with the consent of DOE requested a 30day extension of the compliance date in order to prepare their post-hearing brief. I determined that although there had been prior requests for an extensions, another extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving services under pendency. I was also advised that there are no financial or other detrimental consequences likely to be suffered by granting the within request. As such, pursuant to NYCRR 200.5(j)(5)(ii), the request was granted and the compliance date was extended to January 16, 2012.

On December 20, 2012, the parties agreed to submit post hearing briefs on the issue of whether this matter should be remanded to the CSE to file a child-specific exception with the State Education Department for the use of Level III aversive behavioral interventions as per 8 NYCRR 200.22[e]. The DOE agreed that the Student’s current placement at the ”) during the 2012-2013 school year is no longer at issue (DOE Post-hearing brief).

FINDINGS OF FACT

Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:

The Student is a 10-year-old boy classified as a child . Classification is not in dispute (See, Individualized Education Plan (IEP), dated April 5, 2010 at Exhibit 2). The student was placed at JRC on September 24, 2005.

On April 5, 2012, the Department of Education’s (DOE) Committee of Special Education (CSE) generated an IEP recommend placement in a Residential Treatment Center and deferred the matter to the Central Based Support Team (“CBST). The Student was recommended to receive related services of once a week on a thirty minute individual session and removed the Student’ BIP that included (Exhibit 2).

The parents filed a Due Process Hearing Request on July 1st, 2012 and requested an impartial hearing for continued placement and for the Student to receive all the services mandated on his April 27th, 2010 IEP, which included (Exhibit A). The DOE did not agree that the Student required and did not offer any evidence, until the submission its post-hearing brief, that the CSE ever submitted application for the Child Specific Panel before deciding the Student did not require in April of 2012. The DOE now contends that on June 19th, 2012 that the DOE submitted an application Pursuant to 8NYCRR § 220.22 (e) Child – Specific Exception Application to the State Education Department, Office of Special Education for the subject Student and asserts that State Regulations and procedures were followed in this matter and requests that the case be dismissed (See Brief, page 2).

The parent asserts that “Court in the form of the ”) were included in the Student’s IEP/BIP dated April 27, 2010 for the purpose of addressing his and that the has been on the Student’s IEP/BIP since December 12, 2008 (Parent Ex. E at 4, 12).”

In June 2009 the New York State Education Department (“NYSED”) adopted final and permanent regulations that prohibited the use of except to address of the students whose IEPs included the use of as of June 30, 2009 (“Permanent Regulations”).

N. Y. Comp. R. & Regs. tit. 8, § 200.22(e).

On September 19, 2012, the Parent, with the consent of the DOE, submitted a brief and the Student’s IEP dated December 12, 2008 in support of their request for an order on pendency continuing of the as part of the Student’s last-agreed upon IEP/BIP. In the Order on Pendency dated October 9, 2010 I initially denied the Parent’s request because the Student’s IEP for the 2009-2010 school year was not offered into evidence (IHO Exhibit 5). On October 16, 2012 the Parent offered the Student’s IEP dated May 15, 2009 in evidence and the parties agreed that the Student has been receiving the beginning from the December 12, 2008 and through the 2009-2010, 2010-2011, 20112012 school years. (Exhibit I). Thereafter, on November 20, 2012, I issued an Amended Order directing the DOE to continue the Student’s placement at and provide the services referenced on the Student’s last agreed upon IEP/BIP, dated April 27, 2010 (IHO Exhibit 6).

CONCLUSION OF LAW

The Commissioner’s regulation regarding ( ), 8 NYCRR 200.22, provides that may be part of a student’s IEP (and BIP) if such interventions were in the student’s program as of June 30, 2009. The CSE, however, is required to consider, for each successive school year, whether the continuation of the “child specific exception” for is appropriate. At the yearly review, if any participant contends that the should be continued, then the CSE must initiate and complete the prescribed procedure for an application for a child specific exception. Application of a Student with a Disability, Appeal No. 07-130, p. 14. The application for a child specific exception process ends at the district level with a CSE review meeting to discuss the NYSED panel advisory decision on the application, and to make a determination as to whether to continue the exception for another school year. Consistent with federal law, the final determination as to the IEP rests with the CSE, at a properly constituted CSE review meeting with parent participation, regardless of whether the NYSED panel recommends for or against the exception.

Here, the DOE contends that the Child Specific Application was filed with SED on June 19, 2012. However, as indicated above, this want not the DOE’s position throughout the impartial hearing process and the DOE did not offer any evidence of the application until the submission of its post-hearing brief. As such, I decline to accept the DOE’s Exhibit with respect to the alleged application as it was not disclosed and/or authenticated during the impartial hearing. Additionally, since appears that that DOE agrees with the parent that the CSE is required to file an application for a Child Specific Exception before the removal of the from the Student’s IEP, the parent’s request for an Order annulling the IEP dated April 5, 2012 an directing that this matter be remanded to the CSE with a direction that the CSE comply with the Child-Specific Exception procedure set forth in the Permanent Regulations at 8 NYCRR 200.22[e], is granted.

ORDERED

The IEP dated April 5, 2012 is hereby annulled. This matter is remanded to the CSE to comply with the Child-Specific Exception Application procedure set forth in the Permanent Regulations at 8 NYCRR 200.22[e] within 10 days of the date of this Order, unless the parties agree that the application submitted by the DOE to the Child Specific Exception Panel on June 19, 2012 is appropriate Dated: January 16, 2013

______________________________

JAMES MCKEEVER, ESQ.

Impartial Hearing Officer

JM:jj

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 Impartial Hearing Request 7/1/12, 5 pp. B Due Process Response 7/11/12, 3 pp. C IHO Statement of Agreement and Order, 9/21/11, 5 pp. D IHO Statement of Agreement and Order, 6/9/11, 5 pp. E IEP, 4/27/10, 12 pp. F Affidavit of Clinician and Treatment Plan, 12/8/11, 39 pp. G Order from 2/2/12 2 pp. H No Exhibit Offered I IEP 5/15/09, 13 pp.

DEPARTMENT OF EDUCATION

1 School Age Request for Commissioner's Approval from New York State

Department of Education, 5/3/12, 4 pp.

2 IEP, 4/5/12, 15 pp.

IMPARTIAL HEARING OFFICER

I Ext. Info II Ext. Info III Ext. Info IV Ext. Info V Pendency Order 10/9/12 VI Pendency Order 11/20/12 VII DOE Brief VII Parent Brief