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

Dates of Hearing: January 24, 2013

March 18, 2013

Actual Record Closed Date: April 1, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 24, 2013

Mother — Parents

Father — Parents

Program Specialist- — Parents

(via telephone )

Psychologist- — Parents

(via telephone)

District Representative — DOE

CBST Case Manager — DOE

(via telephone)

Director of Intake – ( ) — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 18, 2013

Mother — Parents

Father — Parents

Spec. Ed. Teacher –. — Parents

Former DOE Supt. — Parents

DOE Representative — DOE

On January 24, 2013 and March 18, 2013, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”). The parents appeared pro se.

The student had been attending, pursuant to CSE placement, , a non-public school with which the DOE may contract for the delivery of special education services (“NPS”), which is located in Pennsylvania ( ). (Ex. 1) On August 23, 2012, the CSE had convened, developed a program and recommended a change in placement (also known as ), an NPS located in New York State (“ ”). (Exs. 1, 9-3)

The parent does not dispute the development of the IEP or the program proposed but asserts only that the recommended placement at is not appropriate for this student and that, therefore, the DOE failed to provide a FAPE for the 2012-2013 school year.( Exs. I, II, III)

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated August 29, 2012. (Ex. I ) I was appointed Impartial Hearing Officer on September 5, 2012. I was available to conduct a hearing within 14 days. A district challenge to the sufficiency of the complaint was on September 7, 2012. The complaint was deemed insufficient on September 10, 2012 with leave to amend by September 28th. By letter dated September 20, 2012, the parent filed an amended hearing request. (Ex. II) By letter dated October 15, 2012, the parent filed a second amended hearing request (Ex. III). (T. 5-6)

At a telephone conference with the parties conducted on December 10, 2012, the initial hearing was scheduled for January 24, 2013, the first mutually available date for the parties, their witnesses and the hearing officer. (T. 5-6, Ex. IV)

At the request of the parent and without objection from the DOE, an Interim Order on Pendency was issued on January 25, 2013 which provided that the student remain at during the pendency of this matter. (Ex. VI)

The current compliance date is April 30, 2013.^[1] The record closed on April 1, 2013, upon my receipt of the final transcript.

Cases Presented

The DOE presented the testimony of ,CBST staff (“ ”) and , Director Intake”).

The parents presented the testimony of: , staff member (“ ”); , the psychologist who is the student’s clinician; , the student’s special education teacher (“ ”); , a former DOE Superintendent (“ ”); and, the parents.

Findings of Fact and Conclusions of Law

The DOE has the burden of proof in this matter. Educ. Law 4404[1][c]

The material specified in the introductory and procedural history sections above are included herein as findings of fact. Further, I find as follows:

The student was at the commencement of the 2012-2032 school year and had been attending pursuant to CSE placements for . (T. Ex. 1) His disability . His Full Scale IQ is reported to be and his Verbal IQ . Age equivalents for communication in June 2010 were (receptive), (expressive) and (written communication). Age equivalents for socialization ranged . Academic scores were reported to show great variability. Instructional/functional levels for reading and math were grade, respectively. (Ex. 1-1, 1-9) The student has been diagnosed with with . (Ex. 4)

The August 23, 2012 IEP noted his high scores on and towards parents, adults and his will on when denied, and poor responses to direction or limits. (Ex. 1-1) This was based on a June 2010 . (Ex. 4) It has been noted that if things are not going anything. (Exs. 5-5, 9 ) See also Ex. 7-1. at times escalated to . (Ex. 7-1) Alone time in his room is utilized as a reward in his BIP. ( Ex. 7-2) Use of the kitchen for cooking is also utilized when possible as part of the reward system. (T. 17) Further, he has a highly developed sense of . (T. 68-69)

The student has his own room and can listen to music of his own choosing and watch television in his room. (T. 27) His is , having what was palate,” and his dinner food is routinely provided by his parents. (T. 27-29) If the staffing situation permits it, he is able to and one of his preferred activities is preparing recipes. (T. 17) His parents visit him each weekend he is not on a home visit and are accompanied by his grandmother and his siblings, . (T. 62)

The parents visited and were informed that that the student would be sharing a room with at least one other student and were shown the type of room he would occupy.

(T. 59) He would and would not be permitted to use the kitchen. (T. 62, 65) Bathrooms are communal with showers separated by partitions. (T. 68-69) He could not have a TV in his room. (T. 67) Further, travel time to is almost twice that to would be unable to because of the trip. (T. 62)

The credible evidence shows that the student with as well as academically and that has substantially decreased. (T. 20-21 29, 34, 58, 70-74, 93-94, 101, Ex. A-1)

The parents testified as to their belief that the student would regress if moved to .

(T. 65) Their conclusion was supported by the credible testimony staff members who have worked with the student. , the who is the student’s clinician testified that any move would . (T. 30, 31) With regard to the particular circumstances at she testified that the student is . (T. 27, 31, 35 ) She noted that he himself and that inability to utilize that would the consequences of and enhance the possibility of (T. 30) The testimony substantially confirmed that testimony. (T. 14-15, 16, 18, 19-20) She opined that the student would decompensate. (T. 19-20) Sturgis, who has been the student’s head classroom teacher for four years and is a certified special education teacher, testified that the student and that this situation may last as long as a day and that she would expect would occur in conditions likely to occur when sharing a room. (T. 86, 89-91) , who has extensive educational experience with special education children and who has known the student for over six years, testified that the student is particularly resistant to change and does not do well with transitions. (T. 101-102) She believes that the student will regress if moved as proposed. (T. 102)

In support of the DOE’s claim that was an appropriate placement and .. (T. 43,52) stated that the student’s information was sent to schools deemed appropriate based upon disability classification and functioning and accepted the student. (T. 41-42) She testified as to her belief that was appropriate but had never met this student and there is no indication that she had any knowledge as to his coping and support mechanisms. (T. 43) Similarly never met either the student or the parents, had received no information about the parents interview at the school and had no knowledge concerning the observations or opinions of staff members. (T. 50-51) Although testified that private rooms are assigned when clinically necessary, there was no indication as to how that is determined and what the availability is. (T. 53)

In the foregoing circumstances, I conclude that the evidence shows that this student would have been likely to regress had the change been implemented. Accordingly, I conclude that the DOE failed to provide a FAPE for the 2012-2013 school year. See Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]).

In the absence of an appropriate and timely placement, I find that the parent is entitled to the issuance of an authorization to enable the student to attend an NPS at DOE expense for the 2012-2013 school year. See 8 NYCRR 200.4(e)(1) Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate.

20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). See also Appeal No. 11-117 (n. 31) noting repeated recognition of the “broad discretion” that must be employed when fashioning equitable relief. As discussed above, I conclude that the relief requested is appropriate.

ORDER

The DOE shall promptly issue a P-1 letter or other authorization providing DOE funding for the student’s placement at an NPS selected by the parent for the 2012-2013 school year (12 month program). Dated: April 8, 2013

____________________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 8/23/12, 12 pgs. Department of Education

2 Observation, 3/8/12, 1 pg. Department of Education

3 Social History Report, 3/1/12, 1 pg. Department of Education

4 Assessment, 6/1/10, 3 pgs. Department of Education

5 Transition Plan, 2/21/12, 10 pgs. Department of Education

6 FBA, 9/9/11, 1 pg. Department of Education

7 BIP, 11/2/11, 2 pgs. Department of Education

8 Behavior Goals, 11/2/11, 2 pgs. Department of Education

9 CBST Case Notes, 5/8-8/23/12, 5 pgs. Department of Education

A Report Card 2012-13 IEP, 3/13/12 Parent

I Impartial Hearing Request, 8/29/12 Impartial Hearing Officer

II First Amended Impartial Hearing Request, 9/20/12 Impartial Hearing Officer

III Second Amended Hearing Request, 10/15/12 Impartial Hearing Officer

IV Prehearing Conf. Memo Impartial Hearing Officer

V Compliance date extension decisions Impartial Hearing Officer

VI Interim Order on Pendency, 1/25/13 Impartial Hearing Officer

Footnotes

[1] The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and unusual scheduling difficulties for both parties resulting from Hurricane Sandy. 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 present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and written decisions concerning the extensions were provided to the parties. (T. 5, 76 , 81, 104, Ex. V)