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 14, 2012

October 11, 2012

December 14, 2012

December 28, 2012

Actual Record Closed Date: December 31, 2012

Hearing Officer: James McKeever, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 14, 2012

Attorney, DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2012

Attorney, Attorney, School Psychologist (Via Telephone) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 14, 2012

Attorney

Student (Via Telephone), Clinician (Via Telephone), Attorney, School Psychologist (Via Telephone — Parents

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

Attorney, Attorney

PROCDURAL BACKGROUND

On Jul 2, 2012, the parent filed the within Due Process Complaint (DPC) alleging that the Student was denied a free and appropriate public education (FAPE) by the Department of Education (DOE) because the Individualized Education Program (IEP) developed by the DOE’s Committee on Special Education (CSE) on June 28, 2012 failed to recommend a residential placement for the Student during the 2012-2013 school year, inter alia.

A Prehearing Conference was held on August 22, 2012. A pendency hearing was held on September 14, 2012. On September 20, 2012, a pendency Order was issued on consent for the Student’s continued placement at the .

On September 14, 2012, the parent 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 the student was currently placed in a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 16, 2012.

On October 16, 2012, the parent requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there 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 a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 with the consent of the school district requested a 30-day extension of the compliance date based on the availability of their witnesses. I determined that although there had been prior requests for an extension, another extension would have no impact on the student’s educational interest because student was currently placed in a full-time educational facility and receiving special education services under pendency. I was also advised that there were 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 14, 2012, the parent and the DOE requested a 30-day extension of the compliance date in order to receive the hearing transcripts and provide a post hearing oral argument on the record. I determined that although there had been prior requests for an extension, the extension would have no impact on the student’s educational interest because student was currently placed in full-time educational facility and receiving special education 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.

FINDINGS OF FACT

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

The Student is a (Exhibits A). The Student’s classification is not at issue. The Student . The Student was (Exhibit 7).

The Student has a during the last few years with the last admission on 12/20/10 (Exhibit 7).

During the 2010-2012 school year the Department of Education’s (DOE) Committee on Special Education (CSE) recommended placement in a day program. but then changed the recommendation to residential setting because the Student needed a more secure setting in order to (Tr. 62, 64, 66). Although the IEP for this school year was not offered into evidence and the DOE’s attorney declined to stipulate as to what the CSE recommended for the 2010-2011 school year, the evidence shows that the DOE initially placed the Student in a in a day program l\ and then changed to the Student’s placement to the residential program at . After , the Student was transferred to a different residential program at during the 2010-2011 school year (Exhibit 6, Tr. 64-66). During this school year, the each of these programs and was subsequently on multiple occasions (Tr. 57, 70).

When the Student’s placement at , the parent requested that the CSE place the Student ), which is a stated approved, non-public school (NPS). It is also a secure residential school that could prevent the Student (Tr.72). The DOE declined the parent’s request. On or about May 31, 2011, the parent unilaterally placed the Student at JRC (Exhibit 1). Thereafter, the parent filed a DPC for funding of the Student’s placement at from May 31, 2011 to June 30, 2011. The parent’s request was denied by an IHO Decision, dated September 9, 2011, because the hearing officer determined that was not an appropriate placement for the Student during the 2010-2011 school year (Exhibit 21). Nevertheless, the Hearing Officer awarded the parent a P-1 Nickerson Letter for the Student’s placement at a NPS during the 2011-2012 school year (Exhibit 21) and the Student remained for this school year as per the Nickerson Letter (Tr. 188).

On October 12, 2012, the DOE’s Committee on Special Education (CSE) held an IEP meeting and recommended that the Student remain in the residential program at for the 2011-2012 school year (Tr. 187-188). In part, because a recent psycho-educational evaluation that was completed prior to the Student’s placement at (TR. 193, Exhibit ) supported a residential placement and because of the information related to the CSE by personnel and the parent (Tr.192,193).

On January 20, 2012, the State Review Officer found that was appropriate for the Student during the 2011-2012 school year and reversed the finding of the IHO (Exhibit E).

In February 2, 2012, the CSE held another IEP meeting for the 2012-2013 school year and deferred with case to the CBST with the recommendation that the Student be placed in a day program at a NPS (Tr. 195). The CSE changed the Student’s placement from residential program to a day treatment program because they believed that the Student had made sufficient progress at and that was no longer the Student’s least restrictive environment (Tr. 196).

On June 28,2012, the CSE held a second IEP meeting and formally changed the Student’s placement recommendation from a residential program to a day program at a NPS (Exhibit C). Again, the CSE’s rationale for the change in the program recommendation was based on positive progress reports that indicated that the Student’s behaviors had improved significantly while at from October 2011 to June 2012. Specifically, that the Student was no longer engaging in (Tr. 200, Exhibits 11, 12). The parent and the Student’s clinicians at objected to the CSE recommendation and opined that the Student still required a highly structured, residential placement for the 2012-2013 school year. The CSE, however, did not conduct and/or review any new evaluation after October 2011 and prior June 2012, when they changed their recommendation from a residential program to day treatment program (Tr.217).

A the Neuro-psychiatric summary report, dated May 3, 2012, which was generated by the Student’s treating doctor at , recommended that the Student remain in a residential setting, specifically for the 2012-2013 school year (Exhibit 15, P). Additionally, a second psychiatric assessment, conducted by Dr. of Hospital, also recommended the that Student continue at for the 2012-2013 school year in order to “solidify the work done and to save risking decompensating due to change” (Exhibit Q, page 3 ). Dr. also opined that the and that a change to a day treatment program, from the highly structured residential program at JRC, “would greatly increase the risk of acute exacerbation of [sic] the patient’s disease that is now in remission” (Exhibit Q, page 4).

Following the IEP meeting in June 2012, the CSE deferred the case to the Central Based Support Team for placement in a day program at a NPS (Exhibit C). hereafter, the Student was referred to four NPS day schools (Exhibits 20, 21, 22 and 23). The parent, however, did not visit any of the proposed day schools, nor did she produce the Student for an interview at any of the proposed school because the parent did not agree with the CSE’s recommendation and believed that the Student still required a residential program for the 2012-2013 school year (Tr. 76-77). The parent, however, was willing to visit any New York State approved residential school had that been offered by the CSE (Tr. 83). Additionally, although the parent acknowledged that the Student had made significant progress at during the 2011-2012 school year, the parent does not believe that the Student is ready for a day program where the Student could elope as she did in the two previous placements prior to (Tr. 75).

is a highly structured and highly supervision program (Tr. 218). JRC also provides significant behavior supports and conducted a Functional Behavioral Analysis and developed a for the Student (Tr. 219, Exhibits K).

By letter dated June 19, 2012, the Parent advised the DOE that she was unilaterally placing the Student at JRC for the 2012-2013 school year (Exhibit F).

The DOE conceded that the Student was not offered a FAPE for the 2012-2013 school year and did not present a direct case on this issue. The DOE stated that they conceded FAPE because the parent thwarted the CBST’s efforts in finding a day program for the Student and therefore could not defend their program recommendation (Tr. 28). The DOE presented a rebuttal witness with respect to the alleged appropriateness of JRC and to address the equities in this matter.

CONCULSION OF LAW

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404.

As indicated above, the DOE conceded that the Student was not offered a FAPE for the 2012-2013 school year and the DOE did not present a direct case on this issue. As such, I find that the Student was not offer a FAPE for the 2012-2013 school year.

Nevertheless, the DOE contends that his matter requires a Burlington/Carter analysis (See, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985] and Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]) and, as such, the parent bears the burden of proof with respect to demonstrating the appropriateness of the Student’s placement at JRC. I disagree. As indicated above, the Student was unilaterally placed at JRC at the end the 2010-2011 school year, which the SRO subsequently found was appropriate (Exhibit E). Thereafter, during the 2011-2012 school year, the CSE held an IEP meeting in October 2012 and recommended that the Student remain in the residential program at JRC for the 2011-2012 school year (Tr. 187-188). In Application of a Child with a Disability, Appeal No. 92-43 the SRO found that the parent did not need to establish a state approved school was appropriate for the child under the Burlington criteria, after she won her argument that the proposed change to the student’s program was not appropriate for the student. Additionally, in Application of a Child with a Disability, Appeal No.12-062, the SRO found that the parents did not have the prong II burden of showing the appropriateness of the student’s current placement at a New York State approved private school after they demonstrated that the DOE’s recommended change in placement was inappropriate. Id. Here, the DOE conceded that that Student was not offered a FAPE for the 2012-2013 school and declined to put on a case to defend their recommended change in placement. It is also undisputed is a New York State approved NPS. Therefore, based on the holdings in the above referenced cases, I find that the parents’ do not bear the burden of demonstrating the appropriateness of . (Application of a Child with a Disability, Appeal No. 92-43).

Further, the DOE contends that the Student’s placement in a residential setting is too restrictive and not the Student’s least restrictive environment (LRE). Although the LRE requirement applies to unilateral parental placements (M.S., 231 F.3d at 105), in this case, a the summary report, dated May 3, 2012, that was generated by the Student’s treating doctor at , recommended that the Student remain in a residential setting (Exhibit 15, P). Additionally, a second psychiatric assessment, conducted by Dr. of , also recommended that Student continue at for the 2012-2013 school year and the parent testified that he Student’ requires a secure residential setting in order to prevent the . Although the DOE’s school psychologist opined that a residential placement was not the Student’s LRE, her opinion was not supported by an objective assessment and/or evaluation, nor did the school psychologist offer any evidence as to how a day program at a NPS would prevent the Student from eloping, which was the parent’s main concern. Accordingly, based on these facts, I find that the Student’ LRE for the 2012-2013 school year is a residential program. The Equities:

The DOE claims that the equitable consideration are relevant to this matter and that the parent must not prevail because the parent “thwarted” the CBST’s efforts to place the Student in the day program at a NPS. The DOE relies on Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007], in support of its position that the parents should be denied funding for because the parent failed to cooperate with the CSE. In Bettinger, the IHO and the SRO, as well as the Untied States District Court, found that the parent was not entitled to tuition reimbursement on equitable grounds because the parent refused to produce the student for an interview at any of the DOE’s proposed NPSs. However, in Bettinger, unlike the facts in this case, the parents agreed with the DOE’s IEP, but refused to consider the DOE’s placement offers. Here, the parent admits that the she refused to view and/or produce the Student at any of the DOE’s proposed schools by the CBST because she did not agree with the CSE’s IEP that recommended a day program at a NPS, instead of a residential program at a NPS. These facts are significantly different then the facts in Bettinger particularly because the parent in this case has challenged the CSE’s recommendation. Additionally, the IHO in Bettinger found that at least one of the proposed NPSs was appropriate for the student. In this case, no evidence was presented that the CSE’s change in placement was appropriate for the Student and no evidence was presented to demonstrate that any of the proposed schools were appropriate for the Student. As such, I find that facts in Bettinger are not analogous to the facts in this matter and the equities do not warrant a denial of the relief requested by the parent. Accordingly, the parents’ request for an Order directing the DOE to fund the Student’s placement at for the 2012-2013 school year is granted.

ORDERED that the Department of Education shall fund the Student’s placement at the for the 2012-2013 school year.

Dated: January 7, 2013

JAMES MCKEEVER, ESQ.

Impartial Hearing Officer

JM: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’s Exhibits:

A Hearing Request, 7/1/12, 3 pages

B Due Process Response, 7/10/12, 4 pages

C IEP, 6/28/12, 12 pages

D IHO Findings of Fact and Decision, 9/9/11, 23 pages

E SRO Decision, 11-135, 1/20/12, 20 pages

F Ten-Day Notice dated 6/19/12, 2 pages

G June 2011-September 2011 Progress Report, 11 pages

H September 2011-December 2011 Progress Report, 11 pages

I December 2011-March 2012 Progress Report, 11 pages

J March 2012-June 2012 Progress Report, 11 pages

K FBA and BIP Reports dated 12/1/11, 11 pages

L Charts dated 10/4/12, 7 pages

M 2011-2012 Report Card, 2 pages

N Program Description-Treatment Summary,10/4/12, 6 pages

O Class Schedule, Undated, 2 pages

P Summary dated 5/3/12, 2 pages

Q Assessment dated 8/1/12, 4 pages

DOE Exhibits:

1 Due Process Request, 7/1/12, 3 pages

2 Due Process Response, 7/10/12, 4 pages

3 Letter to Parent, 1/6/12, 2 pages

4 Declination Letter, 1/12/12, 1 page

5 Social History Update, 1/12, 2 pages

6 Evaluation, 2/18/12, 3 pages

7 Treatment Planning Conference and Treatment Plan, 3/4/11, 9 pages

8 Social History Update, 3/22 & 3/28/11, 3 pages

9 Classroom Observation, 9/27/11, 2 pages

10 Test of Educational Achievement, 9/19/11, 8 pages

11 Progress Report, 9/11/11-12/10/11, 10 pages

12 Report Card, 2011/2012, 1 page

13 12/1/11, 11 pages

14 , 12/13 school year, 4 pages

15 Summary for JRC, 5/3/12, 2 pages

16 Letter to Parent, 6/22/12, 2 pages

17 Letter to Parent, 6/5/12,2 pages

18 Letter to Parent, 6/15/12, 1 page

19 CBST Case Manager Letter to Parent, 3/27/12, 1 page

20 School Letter-CBST, 5/18/12, 1 page

21 School Letter-CBST, 5/18/12, 1 page

22 School Letter-CBST, 5/23/12, 1 page

23 School Letter-CBST, 6/25/12, 1 page

IHO Exhibits:

1 Ext. Info

2 Ext. Info

3 Ext. Info

4 Ext. Info