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: November 19, 2012

January 15, 2013

Actual Record Closed Date: March 6, 2013

Hearing Officer: Gary D. Peters, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 19, 2012

Attorney — Parents

Dr. Dept. Designee — DOE

Mother — Parents

Teacher/Assigned Intake Coordinator Dept of Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 15, 2013

Attorney — Parents

Dr Dept. Designee — DOE

Clinician — Parents

Mother — Parents

INTRODUCTION

On the above dates, I conducted hearings, pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability, New York City Impartial Hearing Case # . The hearing was conducted at the impartial hearing office, New York City Department of Education, at 131 Livingston Street, Brooklyn, New York. The student’s parents submitted a request for an impartial hearing on August 24, 2012. At the hearing, the Department of Education, hereinafter referred to as the “DOE” was represented by its designees, Dr. and Mr. ; the parent was represented by their attorney Esq.

BACKGROUND

The student is currently ”. On March 12, 2012, the Committee on Special Education (CSE) met to discuss the educational needs to develop an Individual Educational Program, (IEP) for the child, hereinafter referred to as “ . The CSE team classified the child as stated above, and recommended placement in NYS approved non public school in a 12 month program, residential program at , a special class.

THE PARENT’S POSITION

The parent alleges that the annual goals as stated on the child’s IEP were not appropriate and that the DOE failed to offer a free and appropriate public education (FAPE) in compliance with the Disabilities Education Improvement Act of 2004, Section 504 of the Rehabilitation Act of 1973, 20 USC 1983 and failed to recommend an appropriate placement.

The Parents maintain that the student attendance and academic performance. More particularly, he has , has a and was involved in . Lastly, the Parents maintain that they attended all meetings, provided documents, were cooperative and are seeking immediate placement at the , hereafter referred to as “ .

THE DEPARTMENT’S POSITION

The DOE maintained that it provided with a FAPE and recommended an appropriate placement at the . Furthermore, it was their position that the Parent must establish that the educational program they selected would appropriate and that equitable considerations favor the parent.

THE DEPARTMENT’S CASE

The first witness to testify was , who is employed by the DOE as a “special education teacher assigned”. Her duties and responsibilities are to serve as a case manager for all students who attend a NYS approved non public school that reside in Staten Island, New York. She was familiar with since he began attending the schools and has arranged for annual reviews each year. (T. page 6). Ms. participated in a CSE review on September 13, 2012 for ; the case was previously deferred to the Central Based Support Team (CBST) in order to locate a different residential placement. A notice of securement was received for ; to the best of her recollection, no changes were made from the previous IEP for services or classification (T. page 7).The witness recalled that the Parent disagreed with the recommended placement as she believed that the facility was not sufficiently secure (T. page 10).

Upon cross examination, the witness reiterated that the March 2012 IEP meeting was conducted with participation from the and recommended that he remain at the school as they were meeting his ”needs”; the Parent was not in agreement. Additionally, the IEP team at a second meeting offered a new school placement at in a residential setting. This second meeting was expressly held so that the recommended placement could be discussed with the Parent at the proposed school (T. page 16). The witness conceded that the IEP did not list a participant from and that she did not recall the facts and circumstances surrounding the non appearance. She agreed that the team relied “solely on the acceptance letter” as there was no person in attendance from the school (t. page 17). With reference to ’s attendance at , the witness believed that was doing well as reported by the school (t. page17). Furthermore she did not have any knowledge or opinion as to how the recommended placement would be any different from . (T. page 18).

Upon re direct examination, Ms. stated that a good faith effort was made to contact the recommended placement and have a representative at the IEP meeting.

The next witness to testify was , who is a licensed teacher in New York and New Jersey and was employed at Center, a NYS approved non public school (T. page23); he is an intake coordinator and handles all residential school referrals. Additionally, he conducts the majority of the tours of the schools with the families and child (T page 24).

Mr. stated that the recommended school is located on the (T. page 24). To the best of his knowledge the school is not a “secured facility” but rather in a “campus setting” (T. page 25). Students ranging in ages from six through twenty one attend the school; however the residential portion of the school is primarily for children ranging in ages from ten to twenty one (T, page 25). Students can acquire a NYS Regents diploma or a GED; related services are available for counseling, speech/language and occupational therapy; in some instances a para professional may be provided. (T. page 26).

The witness was familiar with ; he was informed by the school psychologist that came for an interview on June 22, 2012, wherein it was determined that he was appropriate for placement at the facility. In each instance, the witness testified that he reviews materials from the CBST before an acceptance letter is sent out (T. page30). The witness testified that there was a seat available for the 2012 school year in a class with a staffing ratio of His recollection was that he called the Parent and that she stated the school was “too similar” to another school that her son was attending and that she belied the recommended placement would not be appropriate and that the IEP goals could be addressed at . (T page 31).

Upon cross examination, Mr. stated that according the IEP, attended St. ’s which was another placement in the district; it was his understanding that the Parent had concerns that her son was going and that there were issues and insubordination (t page 35).

The witness stated that are 156 students at the recommended (T. page 37). Union Free School District provides educational services and is the residential component (T page 38). If the child attended the placement, he would attend the High School on the campus (T. page 39). In addition to the residential students on campus, there are also “day students”. Furthermore, there is a middle school on the campus, . In order for the to be placed his transcripts would be reviewed and to determine if he was a ninth or tenth grader.

The witness stated that approximately 13% of the students have been adjudicated as “ ”; he conceded that there have been on the campus (T. page 44).

THE PARENT’S CASE

The first witness to testify on behalf of the Parent was who stated that he has a Bachelor's/Masters Degree and a Certificate of Graduate Studies in Psychology; is currently eligible for the BCBA and LMAC examinations, which he will be taking next month. He has ten years experience and is currently employed at

(T. page 78). is a highly structured residential and behavior school, which has two types of programs; one addresses higher functioning students, and the other treats students with autism and mental retardation. is an approved by New York State non public school and provides services 24 hours per day/360 days per year, as a residential facility with a high staff-to-student ratio. Additionally, there is a 24-hour live monitoring system, which views the students at the school and at the residential facility (T. page 79).

The witness is familiar with and has been his clinician since his arrival at in September of 2012. When was first was admitted to he participated in a “welcome week program”, wherein he was introduced to the program, in order to learn about . The staff was able to observe the student in order to learn more about him and his behaviors.

The witness was directed to exhibit “C’ the IEP dated March 22, 2012and stated that he was in agreement with a recommendation for residential placement and that was able to implement the recommendations as stated in the IEP (T page 82). The witness was directed to Page 2, specifically to a section discussing academic, developmental and functional needs of the student, including consideration of student needs that were of concern to the Parent, wherein needed to arrive to class and activities on time. This was achieved at on a daily basis; all of the students receive various rewards and contracts tied into their compliance with academic work and compliance. Furthermore since his admission, has not missed any days from school (T. page 84). In conversations with his teachers and the staff that are working with him, has been very compliant regarding work on his academics; he is in a classroom with five other boys, three girls, a teacher certified in special education licensed to teach grades five to twelve.

is recommended to receive related services of therapy and and is receiving those services at the school.(T. page 85); the therapist is licensed; a licensed clinical social worker . receives behavioral counseling, wherein he can talk about anything, it could be about his program, his future goals, how he's currently doing, his program, and or his rewards. Mr. also stated that he meets about five times a week and that they and that he implements mechanisms to reduce his . (T. page 87). The witness stated that has made huge progress from the day that he began specifically referring to his . was described as more patient, he listens, and his vocabulary has improved. He gets along with most of the students and there have not been any significant issues.

The witness reviewed exhibit “D” and stated prior program had been found be not appropriate due to the (11 . The witness recalled was at , which is a normal protocol if there ; the nursing department visits the student each time (T. page 90). Since September 27th of last year had a total of six restraints. Furthermore has had more restraints for the past two weeks, due to his home visit; after his return from the Christmas break, his behaviors “increased”. The witness believed that the increased due to absence from the structured environment. (T. page 91)

The witness stated that his prognosis with respect to the 2012-2013 school year is that remain at with increased amounts of home visits, and implementing a behavior modification program and that he can definitely improve (T. page 93). has not fled since he began attending ; the witness attributes this due to the fact that there are significant , during individual sessions, so he knows not to do that. The supports are in place, the supervision is very strong, so the chances of him fleeing are unlikely.

benefits from the current rewards that are utilized in his plan. Rewards are tied to different , which means that he must conform to the contract and be behavior free, to earn that reward. He has access to the ”, which features a teen lounge, a store where the students can buy goods, an internet café, a movie theater, and a hair salon. Students could go to the gym, play basketball and work out and watch or play videogames. When the behavior is stable, they could go out in the community for fieldtrips and have snacks grade and takes the following classes: English, mathematics, literature, physical education, health, and science. He's instructed at level; he has , depending on the subject. He has in math skills’ however, in reading and writing, he's “getting better”. can get group instruction or one-to-one instruction from the teacher. He just started working with the subject area teacher for science, history, and math, which means that he would meet with specific teachers, one-on-one basis, for tutoring, our times per week. The sessions could last anywhere from an hour to two hours on a “pull out basis” (T. page 97). still has to be given several tests to determine his functioning level of academics; however the witness believes that the student could be entered into a regent’s track and that he is appropriately placed in his academic program. According to his teacher, ’s definitely getting better and is more motivated to learn.

Upon cross examination, the witness stated is when you apply the punishment, and the . does not use positive punishment in . Restraints would be implemented when is a threat to himself or others. “So, for example, if and there might be a chance where he's hurting himself or another person” (T. page 100).

Mr. stated that conducted initial assessments, prior to the beginning of classes. The next assessments are usually done in five or six months; when first began, he was tested at about the and level; currently, he's doing grade level work. As stated has a , so that all the targeted and are placed in a category; he must abstain from , to earn his rewards (T. page 101)

The witness stated that when went home during , he admitted to drinking alcohol and smoking marijuana. At he has no access to and - - supervision wouldn't allow him to do so.”

The witness stated that there had been a decrease in before he went home; when he returned from home, there was a . Mr. described the reward system as a “contract system”, which ranges from is the standard. Currently, ’s on a Level which he .

The last witness to testify was Ms. who stated that she is ’s mother. He was born August 24, 16 1996 and is currently -years old. The first time, she noticed any kind of that impacted his education was when he old, and in preschool; his first the first IEP was in grade (T. page 107). She first considered placing in a residential type of a program in 2009 as he was at home and at school. With the help of the , he used to have a paraprofessional in the school, the school bus come and pick him up. “We tried everything, but with the recommendation, the school team and myself, we decided to get to get him into a residential school”(T. page 108).

began attended in July 2009, a residential treatment center at , in the he remained there for the 2010-2011 and 2011-2012 school year (T. page 110)

The Parent testified that in 2011-2012, he and was complaining about the staff and students in the residential facility. “They (students) used to and ; he and to come home during the weekends. He used to travel independently and in the program and his

(T. page 110)

The witness was directed to Exhibit “B” and stated that it was her letter to District 31 CSE. She wrote the letter, as a student ”; she feared for her son's safety”. At one point, and went home.

The CSE scheduled a meeting, to address her concerns. The witness identified Parents' Exhibit “C”; an IEP dated March 22nd, 2012 and stated that she participated in that CSE review. A program recommendation was made as a result of the IEP meeting, wherein she was told that the IEP would continue with the same goals, the same related services; they removed his one-on-one paraprofessional, however stated that he was going to stay in the same school. The team did not defer the case to the CBST to looking for another school until the end of June 2012 (T. page 114).

The Parent testified that at the March 22, 2012, CSE review, the team recommended that stays at the ; she disagreed and requested an impartial hearing (T. page 115). Parents' Exhibit D, an IHO “Findings of Fact and Decision dated June 15, 2012” was identified wherein it was ordered that the case be referred to the CBST in order to find an alternative residential placement for her son. She was contacted to observe the school; she complied with the request and visited the proposed placement with her son. She participated in a screening interview , wherein the school accepted him. In a subsequent CSE review meeting on September 13, 2012, she expressed concerns to the CSE team regarding the recommended school and disagreed with it and did not sign the IEP. Her concerns were expressed to Ms. and Bellow, in that the proposed school was similar to . There was an unoccupied security guard booth and no tall fences to prevent students from leaving(T. page 119); she had concerns that her son would and was told that the proposed school was not a “lockdown facility”.

The Parent stated that she did not receive correspondence from the DOE that her son was supposed to attend the . She stated that would be a suitable placement for her son and that she visited the school in March 2009, before her son attended .

The Parent stated that she had another son at and was satisfied with his progress. She decided to and he began attending on September 27th, 2012. She is satisfied with his program at and desires that he remain there for the 2012-2013 school year.

Upon cross examination, the Parent stated that she never interfered with the CSE, regarding their recommendations that were made for the 2012-2013 school year; when the CSE or the CBST asked her to visit proposed placements, she complied. She visited four schools and didn't feel that any were appropriate. She in March 2009; a parent introduced her to the program, and she did her own research and visited the school; she visited again on December 17 2011 and in the Summer of 2012, when she dropped off her son (T. page 126).

’s first day of school at was September 27th, 2012; prior to that, he was at home and was out of the school from May 2nd,2012.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A central purpose of the IDEA is to ensure that students with disabilities have available to them a FAPE (20 USC. 1400 [d) [1]; Board of Educ. v. Rowley. 458 U.S.176, 179-181, 200-01. FAPE includes special education and related services designed to meet the student's, unique, needs, provided in conformity with a comprehensive writtenIEP (20 U.S.C.1401 [9] [D]; 34, RCNY 300.17. A board of education may be required to (J Education, 471 U.S. 359 [1985]; Florence County School. District Four v, Carter, 510. D'S. 7 [1985]). The first step is to determine whether the district offered to provide aFAPE to the student. FAPE is offered to a student when (a) the board of education if complies with the procedural requirements 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 at 206-07). Under the IDEA, if a procedural violation is 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 FAPE, (b) significantly impede 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 1415 [f] [3] [E] [iii]

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes .annual goals related.to those needs. (Application of a Child with a Disability, Appeal No. 07-008, Application of the Ed. of Educ., Appeal No. 06-076). The IDEA. "expresses a strong preference for children with disabilities to be educated to the maximum extent, appropriate with their non disabled peers" See Walczak v. Union Free Sch. Dist142F.3d 119, 122 (2ndCir. 1998).A FAPE must be provided to a child with disabilities in the "least restrictive setting consistent with the child's needs (see Perricelli v. Carmel Cent School. Dist, 2007 WL465211, at 10* [SD.N.Y. Feb. 9, 2007], citing Walczak. 2 F.3d at 122). In determining an appropriate placement in the LRE; the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are disabled and ·that special classes, -separate schooling or other removal of children" with. disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C.1412 [a] [5] [5J [AJ; 8 NYCRR 200.6 [a] [1]; see also Bay Shore Union Free School. Dist. T. 40SF.Supp. 2d 230,239-40 (E.D.N.Y. 2005.) In determining whether a student can be educated in regular classes, it is not necessary to establish that the student will learn at the same rate. or master as much of the regular education curriculum as his or her disabled peers (Daniel R.R. v. State Bd. of Educ. 1036. 1044 [5th Cir, I].

The fact that a student with a disability might make greater academic progress in aspecial education class may not warrant excluding the student from a regular education program (Oberti v .Bd of Educ. 1204, 1213 [3rd Cir. 1993]).The Daniel R.R. Oberti test for determining whether a school district has complied with the LRE requirement consists of two prongs: 1) whether the student can be educated in a general education class with the aid of supplemental aids and services; and 2) whether the school district has mainstreamed the student to the maximum extent appropriate (Daniel R.R. at 1048). In determining whether a student with a disability can be educated satisfactorily in a regular class with supplemental aids and services, several factors should be considered including:

1) whether the school district has been reasonable in trying to accommodate the child in a regular classroom; 2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class and 3)the possible negative effects of the inclusion of the child on the education of the other students in the class (Oberti, at 121-128).

The CSE must also consider the unique benefits, academic and otherwise, which a student may receive by remaining in regular classes, e.g. language and role modeling with no disabled peers (Geer v. Rome City School, Dist.. 950 F.2d 688 [11th Cir, 1991]).

In order for this hearing officer to determine whether the District provided a FAPE, it is necessary to review the composition of the IEP Committee. An IEP prepared by an invalidly composed CSE is a nullity, and the school district cannot meet its burden of that its recommended program was Application. of a Child with a Disability. Appeal No. 01-'096).

The Department maintained that an impartial hearing was brought forth by on behalf on August 24, 2012. Prior to that hearing request, the student had attended a residential, state approved program, where he did not have success and had difficulty in attending the placement. The CSE learned of this difficulty and the case was then deferred to the CBST in accordance with a prior Hearing Officer's finding and fact of decision, remanding the case back to the committee.

As per Exhibit #2, a letter of acceptance letter was sent from District, into the hard to place residential program and the student could have attended this school. He was interviewed on June 22, 2012, was accepted could have attended for the 2012- 2013 school year, as evidenced by testimony that was provided from , the intake coordinator at the . Mr. testified that this school is appropriate and that the demands of the IEP could be met at that school for the 2012-2013 school year.

The Parent maintains that based upon her testimony and according to the IHO “Findings of Fact and Decision”, during the past school year, 2011-2012, that there has been significant deterioration in the student's in terms of his academic and behavioral progress.

The Parent wrote a letter dated January 13, 2012, to the Committee on Special Education, asking the CSE for a reconvene and to change ’s placement from to an alternative residential program that would be more appropriate to meet his academic and behavioral needs. The CSE met on March 22, 2012, and despite the Parents' request to change the student's placement; the CSE recommended the same placement at Union Free School District. Despite the fact that has been , wherein the , no significant changes were recommended. Additionally, there have been multiple incidents of s fleeing from the facility, which made it impossible for him to receive educational benefits. The Parent disagreed with the CSE's recommendation and requested an impartial hearing. IHO Dora Lassinger had issued a decision, wherein she found that was not an appropriate and remanded the case to the CBST for an alternative placement. The CBST came up with an acceptance from another residential school, .

On September 13, 2012, the CSE reconvened in order to change the student's placement from to another residential school, . The Parent cooperated with the DOE. She visited he proposed placement , but found it not appropriate because it was very similar to , regarding security measures, regarding the open campus without any monitoring and being in close proximity to public transportation, which would enable the student to from the facility. The Parent requested a more structured, safe environment at . She was already familiar with because of her positive experience with her other son.

At the time of the filing for the impartial hearing, was not even recommended for the student. The Parent requested a Nickerson Letter as a remedy that was developed in the class action of Jose P. v. Ambach; when the DOE is unable to make an appropriate placement within 65 days from the referral to the CSE. In this case Applicant’s counsel maintained that it was more than 65 days as the IHO Lassinger’s decision was issued on June 15, 2012, and 65days would expire on August 20th of 2012. However, the CSE did not have a placement and at the beginning of the 2012-2013 school year, the student was at home without an appropriate placement.

Thereafter, the DOE prepared an IEP at the September 13th, 2012 meeting, offering placement at . Clearly, that in that IEP, , was indicated, however, the Parent did not receive any notice of final placement recommendation. It is the Parent’s position that the DOE has not made a formal placement recommendation foe .

I find that a Nickerson Letter is an appropriate remedy in this case for the reasons as stated above. However, although it is not required I determine that in the Parent should also prevail on all three-prongs as required in Burlington.

Regarding prong I, the District failed to offer an appropriate placement on procedural grounds because according to Section 200.4(e) (1) of the commissioner’s regulations. If a School District is considering a placement outside of the District, such as in this case, wherein the DOE acknowledged that the child needs a nonpublic setting and was considering a program outside of the New York City Department of Education it must be compliant with applicable regulations. In accordance with to the commissioner's regulations, whenever a School District is considering a placement outside of the District, the CSE is required to invite a representative of the proposed placement to the CSE team, so that they can make an informed decision, whether that placement can meet the student's needs. As stated above, the CSE failed was to invite a representative from School, to the CSE meeting on September 13, 2012, in order for the Parent and the CSE to make an informed decision, whether could meet the student's needs. The evidence established that the CSE made the decision to recommend a school based on the notice of securement from CBST. I agree that the placement was predetermined and the Parent had no input whatsoever into development of the IEP.

Furthermore, on substantive grounds, I find that the recommended placement is not appropriate. The testimony from Mr. the employee of the Center, established that that facility is substantially similar to the previous placement, and would not be able to meet ’s needs and provide a “secure site” to prevent the child from .

Regarding prong II, the evidence indicated that the student is appropriately placed, despite various . is appropriately meeting and academic needs. has made progress during the four months that he was there and the program is approved by New York State.

Prong III was satisfied as there are no equitable concerns. The Parent cooperated with the DOE; she attended all of the CSE review meetings, visited all proposed schools and requested a placement more than a month before she actually implemented a unilateral placement. Accordingly, I find for the Parent as per the attached Order. Dated: March 18, 2013

GARY D. PETERS, ESQ.

Impartial Hearing Officer GDP: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 EVIDENCE

Exhibit Name of Document Date Pages A Impartial Hearing Request 8/24/12 3 B Parent’s Letter to CSE 1/13/12 1

C IEP 3/22/12 13

D IHO Decision # 6/15/12 13 E Acceptance Letter 7/12/12 1 F Tuition various 2 G Behavioral Procedures @ undated 7 H Distinguishing Features undated 11 I Positive Programming Procedures undated 16 J Educ. Progress for Students 1/28/10 9 K Initial Progress Report 11/14/12 2

DEPARTMENT’S EVIDENCE

1 IEP 9/13/12 16

2 Correspondence from 8/10/12 1 3 Memo Placement Approval/ 8/12/10 1