Impartial Hearing Decision

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In the Matter of XXX, by his Parents XXX and XXX, vs. IMPARTIAL HEARING

OFFICER’S DECISION

the XXX School District; Impartial Hearing pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R.§200.5) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Craig Tessler, Esq. Impartial Hearing Officer

March 21, 2014

APPEARANCES:

For the Parents:

XXX, Parent

XXX, Parent

For the District:

XXX, Director of Pupil Personnel Services

PARENT’S EXHIBITS

NAME DATE PAGES

A Letter: XXX w/ Attachments 1/31-3/15/13 21 B Behavioral Progress Notes 8/2013-1/2014 11 C Mediation Agreement 11/18/13 1 D NYSED Special Ed Field Advisory 3/13 13 E Assistive Technology Assessment 11/02/13 3 F Letter: M.D. w/ Attachment 6/22/11 4

DISTRICT’S EXHIBITS

1 Request for Impartial Hearing 2/24/14 2

2 Letter: – XXX 2/20/14 1

3 IEP 2/14/14 21

4 Letter: – XXX 1/31/14 1

5 IEP 12/02/13 18

6 IEP 11/22/13 18

7 Letter: XXX - Parents 10/23/13 1 8 Letter: – 10/11/13 1 9 Letter: XXX - Parents 9/24/13 1 10 Behavioral Support Plan 4/16&9/18/13 10

11 IEP 9/13/13 16

12 IEP 6/05/13 16

13 Form STAC – 1 2/18/14 1

DISTRICT WITNESSES

XXX, XXX Center IEP Coordinator XXX, Director XXX, District Director of Pupil Personnel Services

PARENT WITNESSES

XXX

I. Introduction

On February 24, 2014, I was appointed by the XXX School district (the “District”)

to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of XXX; the hearing was held on March 21, 2014. Lists of persons in attendance and documents received in evidence are set forth above.

The March 21, 2014 hearing session was originally scheduled as a pendency hearing during the resolution period. The parties had an unsuccessful resolution session, and on March 7, 2014, they waived the remainder of the resolution period. At the hearing, both parties stated on the record that they had presented both their pendency arguments and case in chief, and rested. I received the parties’ post-hearing memoranda on April 8, 2014.

II. Background

XXX is a XXX year old student classified with XXX; classification is not disputed

(T. 5). In September, 2011, XXX entered the XXX Center (“XXX”), a SED-approved 24- hour XXX special education program for students with . XXX is a Children’s XXX Project (“CRP”), jointly funded by SED, which certifies and regulates the program’s educational component, and the NYS Office for People with Developmental disabilities (“OPWDD”), which certifies and regulates the XXX component (T. 27). ………..[Redacted]

XXX is not licensed or authorized to provide this level of staffing intervention, and SED and OPWDD informed XXX that this intervention is not acceptable, and that XXX is not an appropriate site for XXX (T. 49-51, 54). XXX informed the District that it was not a safe site for XXX and that it could not implement XXX’s IEP, and requested that the District find a different placement for J. H. (T. 54-56). Between September and December, 2013, the District applied to SED-approved in-state and out-of state XXX programs for XXX (T. 98-99, 111). XXX’s Parents did not agree with a change in placement from XXX, and refused to cooperate in the application process (T. 100). An

IEP meeting was held on XXX, to incorporate the results of an assistive technology evaluation into XXX’s IEP (Exh. 6). The evaluation concluded that XXX would benefit from an assistive communication device, but XXX was concerned that a communication device was potentially unsafe in XXX’s present setting and emotional estate (Exh. 6, p.

5). On XXX, the District held a review and issued an IEP (Exh. 5) which, in addition to the reports and evaluations considered at the September 13 and XXX IEP meetings, considered current reports from XXX’s OT and PT providers. [Redacted]… In January, 2014, the District’s Director of Pupil Personnel services and a District School Psychologist observed XXX at XXX (T. 105). On January 31, 2014, XXX was accepted by

Foundations Behavioral Health (“XXX”), a SED-approved XXX program in Doylestown,

PA (Exh. 4). On XXX, the CSE held a review; [Redacted]…

XXX’s Parents do not agree with the XXX IEP and the recommendation to place XXX in XXX. The filed the Request for Impartial Hearing on XXX (Exh. 1), alleging that XXX continues to be an appropriate program for XXX, that they referred XXX to the ”) in for an inpatient evaluation, and that this evaluation must be completed before a change in placement is made.

The Parents’ attorney argues that the District did not have sufficient current evaluations to develop the XXX IEP and place XXX in XXX. The District’s attorney argues that there was sufficient information to develop the XXX IEP, that XXX is inappropriate and unsafe for XXX, that XXX is appropriate and XXX should be placed there pursuant to the XXX IEP, and that XXX should be XXX’s pendency placement.

III. The District’s Case

XXX, IEP Coordinator at XXX, testified …[redacted]… that XXX is New York State’s most restrictive educational program for students with developmental disabilities; the students are aged 5 to 21, are classified as students with disabilities and may also have mental health diagnoses, and exhibit significant maladaptive, self-injurious, and/or aggressive behaviors. (T. 27-28). XXX addresses maladaptive behaviors with techniques including re-direction, prompting, and sensory integration; in life-threatening situations, physical intervention/restraint may be used, pursuant to an OPWDD-approved program (T. 29). XXX’s program is intended to enable students to develop skills required to transition to a less restrictive environment or an adult services program. Students have exposure to the community through volunteer opportunities, use of a YMCA, shopping excursions, and field trips (T. 30). …[Redacted]… SED informed XXX that XXX is not an appropriate placement for XXX; Mr. XXX stated that XXX can be discharged from XXX only if the District’s CSE recommends a change in his program (T. 54). Mr. XXX participated in XXX’s XXX IEP meeting; he told the CSE that XXX was not an appropriate program for XXX, that XXX no longer received any educational benefit from XXX, and that an appropriate placement must be found to ensure XXX’s safety (T. 56). Following the IEP meeting, XXX cooperated with the District’s applications to other placements for XXX XXX’s Clinical Director visited XXX, reviewed XXX’s records, and spoke with Mr. XXX and behavior specialists regarding

XXX (T. 57). Staff from other programs told Mr. XXX that XXX’s Parents declined to be interviewed and informed the programs that they were not interested in other placements. In September, 2013, XXX’s Parents gave XXX written consent to share

XXX’s records with Krieger; Mr. XXX stated that Krieger is an insurance-based hospital program associated with Johns Hopkins University, and is not an approved educational placement (T. 59). Mr. XXX identified a letter dated February 20, 2014 by XXX’s

Regional Director (Exh. 2), which states that after the XXX IEP, XXX is no longer XXX’s placement, that due to his imminent risk of grave bodily harm, XXX needs to be removed by February 24, 2014, and that XXX is not a safe or appropriate pendency placement. [Redacted] XXX reported the elopement incidents to the New York State

Justice Center, but Mr. XXX did not know the results, if any, of their investigation (T.

70). XXX’s parent told XXX that XXX’s “current medical team” recommended evaluations, but XXX did not receive any communications directly from XXX’s medical providers (T. 71-72).

Jesse XXX, XXX’s Clinical Director, testified that XXX has three inpatient hospitals, XXX, school and in-home programs, and offers individual, family and group counseling, music, recreation, art and movement therapies, and a community program

(T. 80). XXX is SED-approved and accepts students from New York State. …[Redacted].

Deborah XXX, the District’s Director of Pupil Personnel services, testified that she has been employed by the District for 17 years…[redacted].

IV. The Parent’s Case

XXX testified that …[Redacted].

V. Finding of Fact and Conclusions of Law

I find that: the XXX IEP is appropriate and was developed from sufficient evaluative data; XXX is no longer an appropriate placement for XXX; XXX is an appropriate placement for XXX; XXX is XXX’s “pendency” placement.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). 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). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). 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, and provides for the use of appropriate special education services (34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]Application of the Dep't of Educ., Appeal

No. 07-018).

In New York State, the school district has the burden of proof in impartial hearings.

A. The XXX IEP

I find that the CSE had sufficient evaluative data to develop the XXX IEP. An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining the content of the student's IEP (20 U.S.C. § 1414[b][2][A]; 34 C.F.R. § 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]). A district must rely on technically sound instruments to assess the relative contribution of cognitive, behavioral, and physical or developmental factors (20 U.S.C. § 1414[b][2][C]; 34 C.F.R.

§ 300.304[b][3]; 8 NYCRR 200.4[b][6][x]). A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 C.F.R. §

300.303[a][2]; 8 NYCRR 200.4[b][4]); a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree (34 C.F.R. § 300.303[b][1]; 8 NYCRR 200.4[b][4]), but it must ensure that the student is reevaluated at least once every three years (a “triennial evaluation”). 34 CFR 300.534; 8 NYCRR 200.4(b)(4). (Application of a Student with a Disability, Appeal No. 11-041).

The IEPs submitted by the District indicate that XXX had evaluations with formal testing in …[Redacted]…I conclude that the CSE had ample informative evaluative material, sufficient to develop the XXX IEP.

B. Placement

I note that the Parents make no allegations regarding the IEP program recommendations. It appears undisputed that XXX requires a XXX program, with services, supports and accommodations mandated in the IEP. …[Redacted]… I conclude that XXX is not an appropriate placement for XXX

I find that XXX is an appropriate placement. It is an intensely structured, XXX program with a strong behavioral component, and offers an appropriate academic setting, with all required supports and accommodations. The program offers opportunities for non-academic activities and community exposure. [Redacted] It can implement XXX’s IEP. XXX is approved by SED, and SED approved XXX’s placement there. I conclude that XXX is an appropriate placement for XXX

C. Pendency

I find that XXX is XXX’s “pendency” program, and that he shall be placed there pending any further proceedings in this matter. The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student's Parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 C.F.R. § 300.518[a]; 8 NYCRR 200.5[m]; see Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of the Dep't of Educ., Appeal No. 08-061. Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . .

from school" (Honig v. Doe, 484 U.S. 305, 323 [1987]; Evans v. Bd. of Educ., 921 F.

Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. v. Ambach, 612 F. Supp. 230, 233

[E.D.N.Y. 1985]).

The pendency provision does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980]; Application of a Student with a Disability, Appeal No. 08-107. Under the IDEA, the pendency inquiry focuses on identifying the student's then current educational placement (Mackey v. Bd.

of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906). Although not defined by statute, the phrase "then current placement" has been found to mean the last agreed upon placement at the moment when the due process proceeding is commenced

(Murphy v. Bd. of Educ., 86 F. Supp. 2d 354, 359 [S.D.N.Y. 2000] aff'd, 297 F.3d 195

[2002]; Application of a Student with a Disability, Appeal No. 08-107; Application of a Child with a Disability, Appeal No. 01-013; Application of the Bd. of Educ., Appeal No.

00- 073). The U.S. Department of Education has opined that a student's then current placement would "generally be taken to mean current special education and related services provided in accordance with a child's most recent [IEP]" (Letter to Baugh, 211 IDELR 481 [OSEP 1987]; see Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir.

1996]). XXX’s last agreed upon placement when the impartial hearing request was filed is the XXX IEP, which mandates a XXX program, including special classes, related services, supports, and accommodations. [Redacted] I find that the change from XXX to XXX is a change in site, not in educational program: the educational component at XXX is substantially the same as at XXX; both programs serve similar student populations; both programs offer similar opportunities for extracurricular and community activities; and they are the same (most restrictive) option on the continuum of alternative placements. (See Letter to Fisher, 21 IDELR 992 (7/06/94). I find that the programs mandated by the XXX and XXX IEPs are substantially the same, and could be implemented in any appropriate XXX placement. As noted above, XXX is no longer appropriate, because it cannot maintain XXX safely without exceeding its regulatory authority, and cannot implement XXX’s IEP. XXX is an appropriate program, is able to implement XXX’s IEP, and is authorized to implement extraordinary supervision of XXX if required. I conclude that XXX shall be XXX pendency placement.

VI. Order

IT IS THEREFORE ORDERED THAT: a) the Parents’ application [redacted] is denied;

b) the District may place XXX in XXX pursuant to the XXX IEP; and c) XXX shall be placed in XXX pending any further proceedings in this matter.

Dated: April 18, 2014

______________________________________

Craig Tessler, Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the School District 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." (8 NYCRR 279.2[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 may be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.