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 16, 2013

October 13, 2013

November 19, 2013

Actual Record Closed Date: December 9, 2013

Hearing Officer: Linda Agoston, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 16, 2013

Advocate — Parents

Dr. Chairperson Designee, CSE District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 31, 2013

Attorney — Parents

Parents

Dr. Chairperson Designee, CSE District — DOE

via telephone School Pyschologist — DOE

Dr., via telephone Education Administrator — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 19, 2013

Attorney — Parents

Parents

Clinician, Educational Center (via telephone) — Parents

Dr. Chairperson Designee, CSE District — DOE

via telephone Assistant Principal — DOE

On August 5, 2013, I was designated by the New York City Department of Education (“DOE”) as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, (IDEA) 20 U.S.C. §1415(b)(2) and Article 89 of the Education Law of the State of New York in the matter of . and the parent through her attorney initiated this hearing on July 2, 2013. On August 8, 2013, I scheduled a pendency hearing for August 16, 2013 and I rendered an interim order for the DOE to fund the placement at until the conclusion of this hearing.

On August 16, 2013, I scheduled this hearing to commence on October 31, 2013 and on November 19, 2013, this hearing concluded. The parties moved to extend the compliance dates during the course of the hearing. 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 to present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly the joint requests for extensions of the compliance dates were granted (trans. 13-14;109; Exhs. I-III). The last compliance date was extended as a result of the request for post-hearing submissions. The parent’s representative submitted his post-hearing brief dated December 9, 2013 by email and the district representative submitted her post hearing brief dated December 3, 2013 on December 9, 2013.

The parent alleged that the DOE failed to provide a free and appropriate public education (“FAPE”) for the 2013-2014 school year and seeks an order for the DOE to pay all education and maintenance tuition charges at a New York State approved non-public residential school at ”) for the 2013-2014 school year (Exh. A at 3) Appended to the record are the names of the persons who appeared at the hearing and the documents admitted into evidence.

BACKGROUND

-year-old girl who is classified with an ”) and her classification is not disputed (trans. 19). She is currently attending for the 2013-2014 school year in She was referred to , a private residential behavior school on April 5, 2012 and the 2012-2013 school year (Exhs. 8 at 1;5 at 1).

On June 3, 2010, a was conducted on June 3, 2010, and the school levels by the Wechsler Intelligence Scale for Children-Fourth Edition and found her intellectual ability was in the the Average Range and Perceptual Reasoning in the Low Average Range and Working Memory in the Superior Range (Exh. 6 at 1).

On May 17, 2012, a conducted by , a M.S., board certified behavior analyst (“BCBA”) clinician indicating the problem behaviors, the factors contributing her behaviors, intervening strategies to alter the antecedent events to prevent occurrence of problem behavior and intervention strategies to behaviors and intervention strategies to provide consequences for the target behaviors (Exh 7).

On December 2012-March 15, 2013, RC quarterly progress report indicated that M.D. achieved grade equivalency of the following scores: in Reading Decoding, in Spelling, in Math Fluency, in Math Computation and in Reading Comprehension (Exh 9 at 1). The teacher reported that . reduced 7 behavior categories and was able to move from Level 10 to Level 7 (Exh. 9 at 3-4).

An Educational Report for the DOE conducted on April 5, 2013, indicated that . had a history of ” and “often posed These behaviors and ” (Id.). The educational evaluator noted that informal testing indicated achieved grade equivalency of the following scores: in Reading Decoding, in Spelling, in Math Fluency, in Math Computation and in Reading Comprehension (Exh. 8 at 2).

A Classroom Observation was conducted on January 18, 2013, by Dr. , who noted that the student was in a class of and “was respectful and appropriate in all her interactions with the teacher”(Exh. 2 at 1).

On April 9, 2013, Committee on Special Education for District 2 (“CSE”) convened and recommended a special class with a staffing ratio of in a specialized school (Exh. 1 at 7) at District 75. The individualized Education Program (“IEP”) developed as a result of the April 9, 2013 CSE meeting recommended related services of counseling once a week in a separate location and counseling on a week in a group no larger than 5 in a separate location (Exh. 1 at 7).

On June 4, 2013, a was conducted by Dr. , who history and noted she was diagnosed with ”) during a in October 2011 (Exh. 5 at 1). Dr. with and with a history (Exh. 5 at 2). Dr. Joseph recommended and receive behavior modification in a highly structured program (Id.).

On June 14, 2013, the Final Notice of Recommendation (“FNR”) indicated that had a placement (Exh. 3).

The parent’s attorney asserted that was denied a FAPE for the 2013-2014 school year because more than the CSE changed her program and placement without first timely and properly evaluating her and assessing her needs and failed to consider the recommendation by m and failed to support its proposed change in the student’s program with a ”) including a meaningful baseline of the her interfering behavior (Exh. A at 2). The parent’s attorney further asserted that the CSE failed to develop an appropriate ”) in accordance with state and federal regulations and failed to have an appropriate program and placement in effect by July 1, 2013 in violation of 34 C.F.R. § 300.323 and § 8 NYCRR 200.4[e][1][ii] which resulted in a denial of a FAPE for the 2013-2014 (Exh. A at 3). The parent’s attorney further asserted that the parent was denied meaningful opportunity to participate in the development of the 2013-2013 program and placement and asserted that the parent was not provided with a copy of the IEP and was not provided with a copy of the Prior Written Notice from the April 9, 2013 CSE meeting setting forth the rationale for the proposed changes in ’s program (Id.).

THE DISTRICT’S CASE

The District’s case was presented in the testimony , School Psychlogist, Dr. , Educational Administrator , at the CSE for Region 2, testified that she had Master’s degrees in Clinical Psychology and Education and was NYS certified (trans. 23). She recalled that she was present for the April 9, 2013 review and CSE team waiting for the parent, who did not participate until after the meeting started (trans. 26). She stated that the CSE reviewed the Observation (Exh. 2) and Educational Assessment (Exh. 8) that indicated progressed (trans. 27-29). Ms recollected that the parent was very concerned about . returning home (trans. 30), and that was initially placed because she acted aggressively and had non-compliant behavior (trans. 34). She stated that report indicated was successful in managing . 36). She further stated that BIP (Exh. 7) was excellent and made suggestions to provide supports and incentives (trans. 41).

On cross Ms. stated that the , who participated by telephone, did not make a compelling case the should remain because many of the behaviors which required residential treatment were occurring at a lower frequency (trans. 52). She did not recall if CSE conducted a social history (trans. 57). She stated that she was aware of various diagnoses including (trans. 61). She acknowledged that CSE recommended a 12-month residential placement for the 2012-2013 school year, and that CSE had evaluation to support the residential placement (trans. 64); however she maintained that CSE did not need to recommend removal from the residential placement (trans. 65). She further acknowledged that the member who participated by telephone did not agree with the CSE recommendation to remove and place her at a class in District 75 (trans. 69). She stated that the CSE was aware that . was placed in a class with a staffing ratio of as noted in the observation (Exh. 2) and the BIP (Exh. 7) was developed by staff with services available , yet she maintained that the could be implemented at the program (trans. 78). She agreed that the April 9, 2013 IEP which resulted in a substantially different program than the prior IEP required a reevaluation to support the different recommendation (trans. 83).

Dr an Educational Administrator, testified that he employed by DOE for 22 years as a special education teacher and a CPSE Administrator and currently working with placing children in non-public and private institutions (trans. 86). He stated that he observed appropriate behavior . and she appeared to be a typical student at the Classroom Observation on January 18, 2013 (trans. 90-91). He further stated that CSE recommended that . be placed in a day program at class in District 75 (trans. 94).

On cross Dr. could not explain where the parent’s name listed on the FNR was obtained (trans. 102). Dr. did not dispute that the FNR did not list the correct last name of the parent (trans. 104).

, Assistant Principal , a holder of special education license and certified in therapeutic crisis intervention with a Master’s degree in Administration and employed by the DOE for 13 years, testified that would have been placed in a teacher and paraprofessional experienced in working with students classified with (trans. 119). He stated that there were 11 students in trans. 121) and the students were on tract for a regent’s diploma (trans. 122). He explained that he had a fully staffed crisis team trained in therapeutic crisis intervention (“TCI”) to deal with needs (trans. 123) and the whole school utilized a positive behavior intervention support (“PBIS”) as did the class (trans. 124). Mr. noted that there was a system of awarding points for positive behavior (trans. 125). He stressed that special education teacher and the paraprofessional of class 521 were TCI trained and the support staff included 4 additional crisis intervention teachers to mediate a situation if a student had a crisis (trans. 126). He maintained that the counseling goals listed in the April 9, 2013 IEP were similar to goals of the students in the class 521 (trans. 128). He opined that the PBIS with the use of verbal praise would motivate an emotionally disturbed student (trans. 131). He further opined IEP could be implemented in a day program (trans. 136).

On cross Mr. stated his knowledge . was based on his review of her IEP (trans. 139). He explained that his program at was a District school located within a public high school with 200 students (trans. 140). He allowed that sometime student in a District program would leave the school building without permission (trans. 141). He noted that the staff members trained were not trained to apply physical restraint and (trans. 147). He acknowledged that developed by the clinician, Ms. targeted behavior and without knowing the DRA constructs the could not be implemented and a new BIP would have to be developed (trans. 140).

THE PARENT’S CASE

The Parent’s case was presented in the testimony of and parent and Carrie . Ms. , a clinician at , a possessor of Master’s degree in Applied Behavior Analysis and a BCBA employed by , testified that s a behavioral school for children with and and that the New York State Education Department has approved it as a school for students with emotional disturbance classifications (trans. 154-155). She noted that . enrolled in April 2012 because she displayed and at school and that resulted in (trans 156). She stated that M.D. had 24 hour behavior program (trans. 157). She reviewed .’s chart and noted negative behaviors had decelerated; however, problems arose from home visits when did not receive constant monitoring (trans. 158). She explained Dr. was .’s psychologist and noted in his (Exh. 5) that . received and required an modification program (trans. 159). She further noted that the behavioral counseling differed from traditional individual and group counseling in that she provided the and traditional individual and group may be provided by a licensed social worker and she and . worked on specific selfmanagement techniques (trans. 161). She noted that . was working on level 10 towards level 12 (the highest level) and was working towards the privilege of bathroom independence or the ability to use the bathroom without a staff member walk with her (trans. 163). She explained the specific contracts that . had to comply with to obtain access to rewards (trans. 165). She stressed that aggression resulted in a loss of privilege and that . received intensive academic supports in the form of direct instruction and tutoring (trans. 166). She noted was in a class with 10 students and that each student received computerized precision teaching as each child in the class had a personal computer (trans. 167). She further noted that the teacher was a licensed to teach moderate disabilities grades 5 to 12 (trans. 168). She recalled that she participated in the April 9, 2013 IEP and she told the CSE . should remain . required the structure and supports at to progress. She stated that she told the CSE that she disagreed with the day placement because a day program would not who was (trans. 170).

On cross Ms. McClelland stated that progress report noted that worked diligently to meet goals and make academic progress and (trans. 174). Ms. McClelland explained that . achieved 65 percent success to control a 35 percent lack of success to control negative was observed outside the 24-hour facility at (trans. 177).

The parent testified that her daughter grade she was with her classmates and others (trans. 184). She stated that her daughter during the 2011-2012 school year (trans. 188), and she was placed in April 2012 (trans. 191). She stated that she participated by telephone in the April 9, 2013 IEP meeting and told the team that she disagreed with the placement at a neighborhood school (trans. 193). She recalled that she told the CSE team that her daughter that her daughter would

FINDING OF FACT, CONCLUSION OF LAW

The District must establish that it appropriately ascertained the child’s educational needs and prepared an IEP in accordance with the procedural and substantive requirements of federal and New York State Regulations. The parent asserted that the school district failed to offer a FAPE in that the CSE failed to offer an appropriate program for the 20132014 school year. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. The State Review Officer (SRO) has ruled on the issue of the type of procedural violation that would render an IEP invalid. In Appeal No. 09-096, the SRO ruled that ”While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).” The SRO in 06080 also ruled the Second Circuit held that “a school district fulfills its obligations under the IDEA if it provides an IEP that is “likely to produce progress, not regression” and if the student’s IEP affords him an opportunity greater than mere “trivial” advancement. Cerra v. Pawling CSD, 427 F.3d 186, 195, quoting Walczak v. Florida UFSD, 142 F.3d 119 130 [2d Cir. 1998] and that the student’s IEP is reasonably calculated to enable the student to receive educational benefits. Bd. Of Educ. v. Rowley, 485 U.S. 176, 206-207 [1982] Cerra v. Pawling CSD, 427 F. 3d 186, 192 [2d Cir. 2005] and the IEP is likely to provide some “meaningful” benefit to the student. Mrs. B. v. Milford BOE, 103 F.3d 1114, 1120 (2d Cir. 1997).” The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

The parent’s attorney claimed that the April 9, 2013 IEP is substantively and procedurally defective. The district representative claimed that . did not require a 24hour residential facility (Exh. V at 1). The district representative asserted that the CSE team reviewed reports and felt that was ready to transition back to a less restrictive environment (Id.). The district representative explained in her post-hearing closing statement that .’s IEP recommended a 12-month program in a 12:1:1 special class in a District 75 school and she could have started at P754 on July 1, 2013 (trans. 119) in class 521 and .’s behavior could have been addressed by the and the school would provide rewards (Exh. V at 3). I find the district representative’s position was that the April 9, 2013 program and placement was appropriate was not supported by the district witnesses or the district’s evidence.

The parent’s attorney asserted that the April 9, 2013 IEP projected dated of service initiation was September 9, 2013 and was recommended for a 12-month program (Exh IV at 6). I find this assertion was uncontested (Exh V at 2).

The parent’s attorney argued that In Application of a Student with a Disability, Appeal No. 08-015, the SRO found that a complete independent psychiatric evaluation was necessary prior to recommending a change in the student’s placement at JRC to another facility (Exh V at 8). I find it was undisputed that the CSE recommended a significant changed in the student’s placement without adequate data regarding the student's individual needs (Id.).

I credit the JRC clinician’s testimony that . required 24 hour and a consistent behavior program (trans. 157) and problems . did not receive constant monitoring (trans. 158). I further credit Dr. ’s update and find . was diagnosed with and with a (Exh. 5 at 2) and recommended that and receive behavior modification in a highly structured program (Id.). I find credible and persuasive the testimony of the parent concerning the and at home. I find the April 9, 2013 CSE team was aware of the need for constant supervision by the progress reports from and the educational assessment and psychoeducational evaluation (Exhs. 6-9) and the failure to provide an appropriate program and placement resulted in a lack of FAPE. The parent’s attorney asserted that the DOE failed to provide . a FAPE for 2013-2014 because she required a more intense program than special class in a specialized school in a day program. I conclude that the evidence presented by the district does not establish that its program would provide the instruction required . and that the IEP is substantively defective. (see P.K. v. New York City Dep’t of Educ., 819 F. Supp. 2d 90, 57 IDELR ¶ 139 (E.D.N.Y. 2011)

Because I find the IEP is substantively defective and FAPE was not provided to . for the 2013-2014 school year I could end my inquiry; however, I note the parents made several claims of procedural defects.

The parent’s attorney argued that the IEP team ignored the parent’s concerns in removing . from . The parent’s attorney further argued that the IEP team did not conduct the necessary assessments including a as required under 8 N.Y.C.R.R. § 200.4[b][1][v] as her and no assessment was conducted to ascertain the physical, mental, that contribute to her disability. The team was required to conduct the FBA and then design a BIP to manage as required under 8 N.Y.C.R.R. § 200.22[b]. I credit the district witness who stated that created from the clinician at could not be implemented and a would have to be created (trans 140). There was was developed pursuant to state and federal law. The Second Circuit differentiated between serious (FBA) and minor (parent counseling) procedural violations based on state standards for FAPE analysis and found the “failure to conduct an will not always rise to the level of a denial of FAPE, but when an is not conducted, the court must take to care to ensure that the IEP adequately addresses the child’s problem behaviors.” (R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 59 IDELR ¶ 241 (2d Cir. 2012.) I find the April 9, 2013 CSE team was aware of the escape and dangerous behavior exhibited by as documented by the JRC progress report (Exh. 9 at 4) and the (Exh. 7 at 4) and the educational assessment (Exh. 8 at 1). I find IEP failed to adequately address outlined in the progress report, and educational assessment. I conclude the IEP did not adequately address the student’s behaviors and in these circumstances, I find the lack of a FBA was a denial of FAPE.

The parent’s counsel alleged that CSE failed to provide an appropriate program and the record was devoid of evaluative material to support the special class in a specialized school recommendation and was unable to implement the IEP because the IEP was developed on the basis of academic goals, behavioral goals, progress reports, provided by the student’s treatment team . “These services were recommended by staff for implementation at . The DOE offered no testimony to show that it can implement the student’s behavioral goals, her FBA and BIP in the District 75 school” (Exh. IV at 9). I agree.

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011.)

I find the parent established that she expressed the need for continued placement and the team’s decision to removed and be placed in a 12:1:1 in a specialized school at District was made without consideration of the progress report that recommended the continuing a placement and educational evaluation. I find the CSE team was aware of the dangerous behavior exhibited by documented by the progress report and the CSE ignored the parent request which significantly impeded the parent’s opportunity to participate in the decision making process. I further the decision to remove caused a deprivation of educational benefits. Accordingly, I find FAPE was not provided to R.E. during the 2013-2014 school year.

Testimony adduced at the hearing established appropriate to meet the student’s special education needs. The described the positive interventions used to a special education teacher and 9 classmates and each student received a computer for individualized instruction. The described the positive strategies used by the staff at to address ’s negative behaviors. I find that the parent established that was an appropriate placement.

ORDER

Therefore, the Dept. of Education is hereby ordered to issue a Nickerson Letter to the parent and the Dept. of Education shall issue whatever other documentation or authorization necessary to . to continue to attend, at public expense, a New York State approved non-public school at JRC for the 2013-2014 school year. Dated: December 13, 2013

________________________

LINDA S. AGOSTON, ESQ.

Impartial Hearing Officer LA:mv

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 16, 2013

A Impartial Hearing Request, 7/1/13, 4 pp. Parents

B Due Process Response, 7/23/12, 3 pp. Parents

C IEP, 4/9/13, 13 pp. Parents

D 6/17/13 10-Day Notice with Proof of Delivery, 6/7/13, 2 pp. Parents

E Findings of Fact and Decision, 3/20/12, 14 pp. Parents

F STAC Approval Form for 2011-12 and 2012-13

School Years, 5/9/12, 3 pp. Parents

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 31, 2013

1 IEP, 4/9/13, 14 pp. District

2 Classroom observation, 1/18/13, 2 pp. District

3 FNR, 6/14/13, 1 p. District

4 CSE meeting minutes, 4/9/13, 2 pp. District

5 Summary, 6/4/13, 2 pp. District

6 evaluation, 6/3/10, 3 pp. District

7 5/17/12, 10 pp. District

8 Educational assessment, 4/5/13, 2 pp. District

9 Quarterly Progress Report, 12/17/12 & 3/15/13, 6 pp. District

I Compliance date extension, 9/16/13, 1 p. IHO

II Compliance date extension, 10/15/13, 1 p. IHO

III Compliance date extension, 10/31/13,1 p. IHO

POST HEARING SUBMISSIONS

IV Closing Statement,12/9/13, 14 pp IHO V Dr. Closing Statementt, 12/9/13, 5 pp. IHO