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 16, 2013

November 6, 2013

December 3, 2013

Actual Record Closed Date: February 17, 2014

Hearing Officer: Jean M. Lucasey, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 16, 2013

(Pre-hearing/Pendency)

Attorney (via telephone) — Student

For the Board of Education: — Student

District Representative (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 6, 2013

Attorney — Student

Parents

For the Board of Education: — Student

District Representative — Student

School Psychologist (via telephone) — Student

Intake Coordinator, (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2013

Attorney — Student

Parents

Ph.D, Clinician, (via Telephone) — Student

Student (via Telephone) — Student

For the Board of Education: — Student

District Representative — Student

PROCEDURAL HISTORY

A hearing on this matter was requested on July 29, 2013, by as parent of (“ ”), pursuant to the Individuals with Disabilities Education Improvement Act § 1415 (f) and 8NYCRR §200.5(i) to maintain residential placement for her daughter at a private facility approved by the New York State Education Department and to seek a finding that the Department of Education (DOE) failed to offer a free and appropriate public education (FAPE) to the student for the 2013-2014 school year.

I was appointed as hearing officer in this matter on August 1, 2013. The resolution period ended on August 31, 2013, making the original decision due date October 15, 2013. On September 16, 2013, the parties met via telephone for a pre-hearing conference, where we also discussed pendency. The parties jointly requested an extension of the timeline for lack of availability of witnesses. The parent’s attorney said that a delay would not harm the child as she was currently in school and receiving services. As no prior requests for extension had been made or granted, pursuant to 8 NYCRR §200.5(j)(5) I granted the motion on the record on September 16, 2013, making November 14, 2013, the new decision deadline. (Tr. 12-13.) The parties scheduled hearing dates for October 11 and November 1, 2013, but Parent moved, through her attorney, to adjourn both dates for witness availability, and the District had no objection.

The parties met for the first day of hearing on November 6, 2013, when the district called DOE school psychologist intake coordinator to testify via telephone. The District rested its case thereafter, (Tr. 126), and the parties jointly requested a 30-day extension of the timeline for availability of witnesses, (Tr. 127). As the student was receiving services under my Order on Pendency1, I granted the extension of the timeline, making December 142, 2013, the new decision-due date. (Tr. 128.) The parties scheduled an additional hearing date for December 3, 2013.

1 On October 1, 2013, my Order on Pendency was distributed to the parties. See IHO’s Exhibit i.

2 As December 14, 2013, was a Saturday, however, the new compliance date became December 16, 2013, which was a Monday.

The parties met as scheduled for hearing on December 3, clinician , Ph.D, and testified for Parent via telephone, followed by Parent’s testimony in-person. The Parent rested her case. (Tr. 200.)

After delivering closing arguments on the record, the parties jointly moved for a 30-day extension of the timeline to allow receipt and review of the transcripts and to allow this hearing officer an opportunity to consider them fully in rendering her decision. Pursuant to 8NYCRR §200.5(j)(5), I granted the parties’ joint request to extend the timeline, making January 15, 2014, the decision due date. (Tr. 206-07; Ex. ii.) On January 13, 2014, Parent’s attorney moved to extend the timeline for a chance for the hearing officer to review the extensive transcripts and consider them in rendering her decision, and as the DOE representative stated that she had no objection was in school and receiving services under my Order on Pendency, I granted the motion, making February 14, 2014, the new decision-due date. (Ex. iii.) After receipt and review of the transcripts, I notified the parties and closed the record officially on February 17, 2014.

FINDINGS OF FACT

Student is a girl who has been classified with . (Ex. A1.) Her classification is not in dispute. (Ex. A1; Tr. 134.) The fact that Student requires residential placement in a New York state-approved school is not in dispute. (Exs. 1-5, 2-5; Tr. 137, 204.)

Parent testified at hearing that in 2009, started to skip school, and stopped coming home, and that she went to family court and took out on her daughter. (Tr. 181.) Parent attend school and was arrested twice for shoplifting. (Tr. 182-83.) Parent was very concerned about her daughter, and at one point had . (Tr. 184.) A court counselor who was familiar case recommended to Parent for her daughter. (Tr. 182.)

was admitted on February 17, 2012. (Ex. A1; Tr. 171.) is located , (Ex. A1; Tr. 115), and is approved by the New York State Education Department to provide residential care to students with a classification of emotional disturbance, (Ex. A1).

Through my Order on Pendency, ’s 12-month placement has continued without interruption into the 2013-2014 school year and remains in full effect throughout this litigation. (Ex. i-4; Tr. 10.)

The March 2013 CSE Meeting

A Committee on Special Education (CSE) meeting convened for annual review of ’s program on March 20, 2013. (Ex. 2-8.) DOE school psychologist attended the meeting, serving a dual role as district representative; along with a DOE social worker, (Ex. 2-11, Tr. 31). Parent, JG, and representatives participated via telephone. (Ex. 2-11; Tr. 187.) As a result of the meeting, the CSE formulated an IEP that recommended “Defer to CBST—Residential,” services to begin on September 9, 2013. (Ex. 2-5; Tr. 32.) At hearing, Ms. Choi could not recall what documents were reviewed at the March 2013 CSE meeting, (Tr. 33), but she testified provided the CSE with documents had been collecting to generate an and that they reviewed the documents at the CSE meeting. (Tr. 34.) Ms. also explained that as everyone at the meeting agreed that a residential program was still appropriate the team “deferred the case back to Central Based Support Team (“CBST”).” (Tr. 32.) Ms. further explained that because of location outside of New York State, “State regulations do want CSE to resend the case back to [CBST] for review of a possibility of securing a location or a school that’s closer to home.” (Tr. 34.) At the meeting, Parent expressed her disagreement with moving JG from JRC, primarily because of the great strides had made both academically and behaviorally in her time at JRC. (Tr. 186-88.)

On June 28, 2013, , intake coordinator at ”), located in Yonkers, NY, (Ex. 4), wrote a letter to the Central Based Support Team, advising the team that L&W had interviewed and had accepted her into its residential program and its educational program. (Ex. 4.) The letter advised the CBST that “[t]he program is a 12-month program with a ratio of Related services of individual counseling and group counseling 1:40:5.” (Id.) The letter does not state whether the school is appropriate for placement there and does not cite any evaluations or other documents it may have reviewed in making its decision to offer JG a placement.

The July 2013 IEP Meeting

After accepted for admission, the CSE reconvened to review the recommended placement on July 22, 2013. (Ex. 1-8; Tr. 35.) Ms. attended, among others. (Tr. 35.) Parent attended the meeting via telephone, along with JG herself. (Tr. 173.) Ms. attended from via telephone. (Tr. 72.) At the meeting, Parent explained to the CSE that she was the right school for her daughter because she had progressed a lot there educationally, mentally, and physically, especially considering what she had been through in 2009 and 2010, when she was not attending school and her grades had been “below zero.” (Tr. 189.) testified that she told the team during the meeting that she did not want to go and that she was comfortable . (Tr. 174.)

On cross-examination, Ms. admitted that at the July CSE meeting Parent rejected the proposed placement of her daughter . (Tr. 90.) At hearing, Ms. Quinones admitted that she had not and that without reviewing the IEP materials could not state JG’s needs. (Tr. 98.) Ms. was unable to state had reviewed ’s behavior intervention plan, (Tr. 122), and what documents were available to them to determine whether L&W’s program could needs. Despite the fact is classified as a student with , the record suggests that no up-to was performed to illuminate the determination of an appropriate program to establish any diagnoses that would inform Tr. 52-53.) Ms. referenced a psychiatric report that was “ (Id.), but the record contains no such report. Nor does the record contain the report associated with the March 4, 2013, WAIS-Fourth Edition that present levels of performance in both the March and the July IEPs. (Ex. B1.) Based on the foregoing, I FIND that the CSE failed to consider adequate evaluative materials in determining s education program for the 2013-2014 school year.

CONCLUSIONS OF LAW

Parent argues that the DOE failed to provide FAPE for the 2013-2014 school year through substantive and procedural violations. Procedurally, Parent argues that the IEP was not in effect at the beginning of s 12-month school year, thus resulting in a deprivation of FAPE for the 2013-2014 school year. Substantively, Parent argues that the DOE failed to conduct necessary evaluations to determine whether the change in location was appropriate for for the 2013-2014 school year. Finally, Parent argues that the placement at was not a unilateral placement and thus my inquiry need extend no further than whether the IEP was appropriate.^[3]

In contrast, the DOE maintains that its IEP and its placement for the 2013-2014 school year offered a FAPE to and that Parent’s preference for cannot supersede the basic appropriateness of the July 22, 2013 IEP.

Congress’ stated purposes in enacting the IDEA were to ensure that students with disabilities have available to them a free appropriate public education designed to meet their unique needs, to prepare them for independent living and to protect the rights of such students and their parents.^[20] U.S.C. § 1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Ed. v. Rowley, 458 U.S. 176, 179-181 (1982). This is a FAPE case. The U.S. Supreme Court held in Rowley that FAPE required by the IDEA means an education that is “tailored to the unique needs of the handicapped child by means of an individualized education plan.” Board of Ed. V. Rowley, 458 U.S. 176, 181-182 (1982). A school district, to satisfy the “reasonably calculated” test, must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere trivial advancement.’” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195, quoting Walczak, 142 F.3d 119 at 132. In New York, the local educational agency has the burden of proving “Prong I,” that it offered an appropriate educational program that amounted to a FAPE. See N.Y. Educ. Law §4404(1)(c).

The 2004 IDEA amendments have codified the procedural part of the Rowley inquiry, with special emphasis on the opportunity for parental participation, specifically,

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii) Caused a deprivation of educational benefit.

While not every violation is considered “material,” the Supreme Court and Congress have emphasized the importance of the procedural provisions found in the IDEIA. Rowley, 458 U.S. at 205.

“At the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP, as defined in [34 CFR 300.320

].” 34 CFR 300.323 (a). “The IDEA requires that the DOE have an IEP ‘in effect’ at the beginning of the school year.” S.F. and Y.D. v. New York City Dept. of Educ., 57 IDELR

287 at p.11 (S.D.N.Y. Nov. 9, 2011) quoting 20 U.S.C. § 1415(d)(2)(A).The failure to have an IEP in effect at the beginning of the school year may result in a denial of FAPE.

This procedural error does not amount to a denial of FAPE, however, unless it impedes the child’s right to FAPE, impedes the parents’ participation in the IEP process, or results in a deprivation of educational benefits. C.H. v. Cape Henlopen Sch. Dist., 54 IDELR 212

(3d Cir. 2010); and M.M. v. School Dist. of Greenville County, 37 IDELR 183 (4th Cir.

2002).

DOE’s failure to effectuate IEP by beginning of 12-month school year amounted to harmless error

Here, it is undisputed is a 12-month student and that her school year thus started on July 1, 2013, not in September. (Tr. 55-56.) Further, it is undisputed that July 22, 2013, IEP, was not slated for implementation until September 9, 2013. (Exs. 1-2, 2-1; Tr. 88-89.)

Ms. testified on cross-examination that the reason that did not schedule JG to start there until September was that they did the review in late July and that the 6-week summer session had already started by then so they decided September 9, 2013, the first day of the fall would be ’s first day there. (Tr. 115.) In light of the foregoing, I FIND that the CSE committed a procedural error in failing to effectuate s IEP at the beginning of her school year. While Parent claims that the procedural violation amounts to a denial of FAPE, I must disagree as no evidence in the record suggests that the late implementation date impeded ’s right to a FAPE, significantly impeded Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to her child, or that it a deprivation of educational benefit. On the contrary, the record reveals that in services before the impartial hearing request was filed on July 29, 2013, (Tr. 10), and she has been receiving full services through my Pendency Order, (Tr. 128). Thus, I FIND that the failure of the CSE to in effect by July 1, 2013, amounted to harmless error. Accordingly, I FIND no deprivation of FAPE via the untimely IEP.

Evaluative data insufficient to determine appropriate placement for 20132014 school year Ms. , the school psychologist responsible for the March 2013 and July 2013 IEPs, couldn’t say whether a new psychiatric evaluation was conducted prior to the March IEP, and yet the team that she chaired decided to move her , where she was comfortable and where she had achieved a great deal of academic and behavioral success, to a completely different school closer to home. What’s more, the record has little meaningful information about and how it would academic and behavioral needs.

Parent’s counsel points to SRO Appeal No. 08-015, which involves a student whom a school district decided to remove from JRC and place him in another in state school, Randolph Academy in upstate New York. In that case, the parent challenged the recommendation in an impartial hearing. There, the IHO found the transfer was appropriate. On appeal to the SRO, however, the parent argued that the CSE did not have sufficient information about the child’s social emotional needs prior to transferring him from one residential school to another. The SRO sustained the argument and found that, “In light of the foregoing, I agree with the parent that the June 2007 CSE did not have sufficient evaluative data to conclude that was an appropriate placement for the student. I find that a complete independent psychiatric evaluation is necessary to determine whether the student has a psychiatric illness and the extent to which such illness, if any, contributes to his ," citing JB v. Killingly Bd. of Educ. 990 F.Supp. 57, 80 (D. Conn. 1997)(additional citations omitted). “This evaluative data and any attendant recommendations are essential to provide the CSE with information for developing an appropriate IEP, FBA and BIP for the student and reaching a decision regarding his educational placement. Accordingly, I find that the June 2007 IEP was deficient insofar as it was developed without adequate data regarding the student’s individual needs,” SRO Appeal No. 08-015 (internal citations omitted). Here, similar to SRO Appeal No. 08-015, there was no updated psychiatric evaluation to give either the March 2013 IEP or the July 2013 IEP sufficient information needs.

“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.”

Application of a Student with a Disability, Appeal No. 08-015 (internal citations omitted). A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including where appropriate, social and emotional status. 20 U.S.C. §1414(b)(3)(B); 34 C.F.R. §300.304(c)(4);8 NYCRR §200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related-services needs, whether or not commonly linked to the disability category in which the student has been classified. 34 C.F.R. § 300.304(c)(6);8 NYCRR §200.4(b)(6)(ix). SRO Appeal No. 08-015. In that case, the SRO concluded that the district improperly relied on an out examination in formulating the IEP and thus agreed with the parent that the IEP in question lacked sufficient evaluative date to conclude that the new school was an appropriate placement for the student. The SRO concluded that, absent sufficient evaluative data, it was inappropriate to reach a determination regarding whether the new school was an appropriate placement for the student. I concur. I HEREBY ADOPT the sound reasoning of the SRO in No. 08-015 and FIND that the July 2013 IEP developed was insufficient insofar as it was developed without adequate data regarding her individual needs. In finding that the July 2013 IEP is deficient, I FURTHER FIND that the DOE failed to offer a FAPE the 2013-2014 school year. To remedy the DOE’s failure, I make the Orders below.

Need for updated psychiatric evaluation

As I have found above that the CSE improperly developed an IEP and program without the necessary up-to-date who carries the classification of , I make an Order below for the CSE to ORDER and FUND an independent psychiatric evaluation of JG to assess generally, to determine salient diagnoses, and to illuminate what effect a school transfer would have upon her emotional state and her continuing progress and to recommend appropriate measures for any subsequent school to take to minimize any ill effects of such transfer. 34 CFR § 300.502(d) provides that “[i]f a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.”

ORDERS

I HEREBY ORDER that, unless the parties otherwise agree, the DOE SHALL ORDER and FUND an independent psychiatric evaluation of the student within 10 days of the date of this Decision;

I FURTHER ORDER that within 10 days after receipt of the publicly funded independent report, the DOE SHALL CONVENE a CSE meeting to determine appropriate services and an appropriate educational placement for the student in full consideration of said independent psychiatric evaluation report and its attendant recommendations;

FINALLY, I ORDER that the DOE SHALL MAINTAIN Student in her current educational placement at until such time as it conforms to my Orders above or until June 30, 2014, whichever comes first.

It is So Ordered Dated: February 26, 2014

________________________

JEAN M. LUCASEY, ESQ.

Impartial Hearing Officer

JML: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

Submitted by Parent

Letter Date Description Pages

A 7/29/13 Impartial Hearing Request 4

B 7/22/13 IEP 11

C 7/25/13 Final Notice of Recommendation 1 D 8/13/12 Final Notice of Recommendation 1 E 3/14/13 FBA and BIP 15 F 4/13-9/13 Behavior Charts 7 G 6/12-9/12 Quarterly Progress Report 7 H 9/12-12/12 Quarterly Progress Report 8 I 12/12-3/13 Quarterly Progress Report 9 J 3/13-6/13 Quarterly Progress Report 10 K 2012-2013 Student Report Card 1 L 10/4/13 Program Description 4 M 10/4/13 Treatment Summary 2 N Undated Class Schedule 1 O Undated Behavioral Educational Procedures 7 P Undated Distinguishing Features 11 Q May 2002 Positive Programming Procedures 16 Submitted by DOE

1. 7/22/13 IEP 12

2. 3/20/13 IEP 13

3. 7/25/13 Final Notice of Recommendation 1

4. 6/28/13 Acceptance Letter 1

5. 7/16/13 CBST Memo 1 Submitted by Impartial Hearing Officer i 10/1/13 Order on Pendency 6 ii 12/3/13 Order Granting Extension 1 iii 1/14/14 Order Granting Extension 1

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Footnotes

[20] U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2) provides In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies— (i) Impeded the child’s right to a FAPE;

[3] As I have found, below, that an independent psychiatric evaluation is necessary in order to determine appropriate services and placement for JG, I do not address this portion of Parent’s argument.