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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In the Matter of XXX, by his Parent XXX, vs. IMPARTIAL HEARING
OFFICER’S DECISION
the XXX Public 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
October 1, 2014
APPEARANCES:
For the Parent:
P.C.
Esq.
XXX, Parent
For the District:
XXX XXX, Director of Pupil Personnel Services
XXX XXX, Assistant Principal
XXX XXX, Teacher
XXX XXX, School Psychologist
October 2, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services
XXX XXX, School Psychologist
XXX XXX, Social Worker
October 15, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services
XXX XXX, Director of Guidance and Student Data
XXX XXX, Social Worker
November 13, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
XXX XXX, Ph. D., Psychologist
For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services December 2, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
XXX XXX, Ph. D. Sr. Vice-President, XXX
(“XXX”)
XXX XXX, Ph. D., Academic Director, XXX
XXX XXX, Boys Clinical Supervisor, XXX
For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services
December 8, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
XXX XXX, Social Worker
For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services
December 10, 2014
APPEARANCES:
For the Parent:
Esq.
XXX, Parent
XXX XXX, Program Director, XXX Therapeutic Residence For the District:
, Esq.
XXX XXX, Director of Pupil Personnel Services
DISTRICT’S EXHIBITS
NAME DATE PAGES
1 Due Process Complaint 7/14/14 9 2 Answer to Due Process Complaint 7/29/14 10 3 District Student Registration Form 10/04/13 4 4 Physical Examination Form 7/09/13 1 5 Letter: District to XXX M.S.; Report Card 10/07/13; 6/25/13 2 6 XXX Records 2012/13; 2013/14 6 7 XXX Progress Report; Email 2013/14; 10/24/13 2 8 District Disciplinary Records 1/14-3/03/14 3 9 Parent Referral to CSE 10/04/13 1 10 Prior Written Notice with Request for Consent to Evaluate 10/23/13 3 11 Rescission of CSE Referral and Request for §504 Meeting 10/23/13 1 12 Section 504 Meeting Notice 10/28/13 1 13 Initial Section 504 Referral Form 10/28/13 2
14 OMITTED
15 XXX Progress Report 9/03/13 1 16 Letter: XXX, RN, MS, NPP (XXX) 10/01/13 1 17 Evaluation (H. XXX, Ph. D.) 3/16/13 10 18 CSE/Section 504 Sign-In Sheet 11/06/13 1 19 Section 504 Accommodation Plan 2013-2014 11/06/13 2 20 Section 504 Consent for Accommodations 11/06/13 1 21 Section 504 Recommendation for Services 11/13/13 1 22 Emails Various 27 23 Parent Request for Expedited CSE Meeting 1/15/14 1 24 Prior Written Notice 1/15/14 2 25 Consent for Initial Evaluation 1/15/14 1 26 Referral to CSE Undated 5 27 Social and Developmental History 1/30/14 12 28 Letter: District to XXX 1/17/14 1 29 CSE Meeting Notice 3/05/14 2 30 Report Card 2013/14 2 31 Evaluation (P. XXX, MD) 3/13/14 5 32 /Educational Assessment (B. XXX, Ph. D.) 2/22/14 38 33 XXX Acceptance Letter 3/17/14 1
34 IEP 3/17/14 14
35 Letter: District to Parent 3/19/14 7 36 Prior Written Notice 3/17/14 5 37 Letter: to District 3/28/14 1 38 Letter: to District 4/01/14 1 39 Letter: to District 4/02/14 1 40 Letter: to District 4/03/14 1 41 Letter: Center to Parent 4/07/14 1 42 Email: to XXX XXX 4/17/14 1 43 Letter: to District 4/04/14 1 44 XXX Request for Records, w/ attachments 3/31/14 9 45 Student Attendance Record 6/20/14 3 46 CSE Meeting Notice 4/09/14 2 47 CSE/Section 504 Sign-In Sheet 4/23/14 1 48 Consent for Initial Provision of Special Education Services 4/23/14 1 49 Letter: XXX to Whom it May Concern 4/22/14 1 50 Translated Document
( ) 9/12/02 3 51 Letters: District to
4/25/14 4 52 Letter: to District 4/29/14 1 53 Letter: to District and Parent 5/09/14 2 54 Letter: to District 5/13/14 1 55 CSE Meeting Notice 5/29/14 2 56 Letter: Parent to District 6/01/14 1 57 CSE Meeting Notice 6/13/14 2 58 CSE/Section 504 Sign-In Sheet 6/20/13 1 59 Letter: XXX 5/22/14 1 60 Draft IEP 6/20/14 15 61 Prior Written Notice 6/20/14 3 62 XXX Rate Sheets Undated 2 63 Letter: Parent to XXX 7/20/14 [2] 64 Letter: XXX to Parent 7/21/14 1 65 Application Info (Computer Extract) 10/01/14 1 66 XXX Timeline 10/04/13-4/01/14
PARENT’S EXHIBITS
A OMITTED
B of Fact-Finding with
Placement (Index No. XXXXXX) 5/20/13 7 C Extension of Placement and Permanency 1/23/14 7 D Vacating Placement 3/31/14 1
E OMITTED
F OMITTED
G OMITTED
H /Educational
Assessment (B. XXX, Ph. D.) 2/22/14 38 I Letter: XXX to Whom it May Concern 3/18/14 2 J Statement re: B. XXX, Ph. D. Undated 1
K OMITTED
L OMITTED
M Report Cards Various 6 N NY State Testing Parent Reports 2010/11; 2011/12 3
O OMITTED
P Section 504 Accommodation Plan 11/6/13 1 Q Letter: (XXX M.S.) to Parent 4/15/13 2 R Letter re: (K. XXX, MD) 5/04/13 1
S OMITTED
T OMITTED
U OMITTED
V Notice of Board of Ed Review for Special Education 1/14/14 1
W OMITTED
X Letter: XXX to Whom it May Concern 3/17/14 1 Y Letter: Tucker to XXX 4/04/14 1 Z Letter: 4/08/14 1 AA Letter: 4/25/14 2 BB Email: XXX to Parent 6/25/14 1 CC XXX Accreditation Certificate Undated 1
DD OMITTED
EE XXX Academic Calendar 2013/14 1
FF OMITTED
GG OMITTED
HH Letter: XXX (Mayer) to Whom it May Concern 7/22/14 1 II XXX Treatment Team Summary 4/06-5/06/14 3 JJ XXX Treatment Team Summary 5/06-6/06/14 3 KK XXX Treatment Team Summary 6/06-7/06/14 3 LL Treatment Team Summary 7/06-8/06/14 3 MM XXX Student Transcript 9/05/14 1 NN XXX Student Transcript 6/19/14 1
OO OMITTED
PP OMITTED
QQ OMITTED
RR Statement: J. XXX, M.S.W. Undated 2
SS OMITTED
TT OMITTED
UU OMITTED
VV B. XXX, Ph. D. – Curriculum Vitae Undated 3 WW B. XXX: Description of XXX Treatment Methodology Undated 2
XX OMITTED
YY XXX Treatment Team Summary 9/06-10/06/14 3 ZZ XXX Treatment TEAM Summary 10/06/-11/06/14 3 AAA Letter: Parent to XXX 7/20/14 2
IHO EXHIBITS
| I | Hearing Notice 8/15/14 1 |
| II | Subpoena Duces Tecum 10/09/14 2 |
| III | Extension/Re-Scheduling Memos Various 7 |
| IV | Parents’ Post-Hearing Brief 2/18/15 29 |
| V | District’s Post-Hearing Brief 2/18/15 30 |
| VI | District’s Memo re: Motion to Re-Open, With Affirmation 3/16/15 14 |
| VII | Parent’s Memo re: Motion to Re-Open 3/16/15 3 |
| VIII | Decision Re: Motion to Re-Open 3/20/15 5 |
| I | Introduction |
On July 23, 2014, I was appointed by the XXX Union Free School District (the “District”) to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of XXX (“V”). When the hearing took place, XXXwas classified with an XXX, and attended XXX (“XXX”), a private residential treatment center (“RTC”) located in XXX that is not approved as a program by the State Education Department. V’s classification is not disputed. (T. 140).
The Due Process Complaint (“DPC”) was filed on July 23, 2014, by Esq., attorney for XXX, Ph. D., V’s parent (“the “parent” or “XXX”). (Exh. 1).
The “Grievances” section of the DPC is comprised of statements of fact, some of which do not allege any specific “grievance” or inappropriate action by the District. The principal allegations are that: on October 23, 2013, the District inappropriately influenced the parent to withdraw her consent to an initial evaluation; none of the RTCs that the District applied to on V’s behalf were appropriate to meet his individual needs; during an IEP meeting on April 23, 2014, CSE team members had animosity towards the parent; the District improperly insisted that XXXbe screened by possible RTC placements; the CSE has not made a formal recommendation for V’s placement; the CSE refused to consider XXX as an appropriate placement; the District did not provide the parent with copies of applications and correspondence regarding potential RTC placement; the CSE “refuses to understand the very specific program that
XXXrequires…”; XXX is an appropriate program, because it specializes in attachment and trauma issues. The DPC seeks findings that: the District’s recommended program is not reasonably calculated to meet V’s needs; XXX is appropriate to meet V’s specific needs; equitable considerations favor an award of tuition reimbursement; V’s discharge by Family Court precipitated an immediate need for residential placement. The District filed an answer to the DPC on July 29, 2014. (Exh. 2).
There was a pre-hearing conference on August 5, 2014, and the hearing was held on October 1, 2, and 15, November 13, and December 2, 8, and 10, 2014; a hearing scheduled for October 9, 2014 was cancelled at the Parent’s attorney’s request because of illness, and a hearing session scheduled for January 21, 2015 was cancelled at both parties’ request, because testimony was concluded. Lists of persons in attendance and documents received in evidence are set forth above.
The decision deadline was extended at the parties’ request: on August 20,
October 2, and November 13, 2014, because of the unavailability of witnesses; on December 10, 2014, and January 20 and February 4, 2015, to allow the parties time to prepare and submit post-hearing memoranda; and on March 2, 2015, to allow for submission of a motion to re-open the hearing record. Before granting the extension requests, I determined that the student was attending a program and granting the extensions would have no adverse impact on the his educational interest or well-being, no adverse financial or other detrimental consequences for the parties, and would serve the requirements of due process by allowing the parties to present and complete their case. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives. I received the parties’ post-hearing memoranda on February 23, 2015; copies are annexed to the record.
On March 2, 2015, the District’s attorney asked that the hearing record be re-opened to consider allegations that the student was recently discharged from XXX. I directed the parties to submit written motions by March 16, 2015. On March 20, 2015, I denied the motion to re-open, for the reasons set forth in the Decision on Motion to Re-
Open (Exhibit VIII) and in the ‘Findings and Conclusions” below.
II. Statement of Facts
Pre-District History
XXXis a 17 year old student. He was at 6.11
years old. (T. 1333). XXX, his parent, has been a School Administrator since
1993, is currently a School Principal in the School District, and was formerly
Director of Special Education in a public school District. (T. 1332). She is familiar with the special education referral and evaluation process, procedural and due process rights, child find requirements, and discipline procedures. (T. 1426-1427). XXXwas placed at the upon a finding that he was by his parents (Exh. 50). He started formal schooling in the XXX School District, where he entered as a 1st grade student, and repeated the grade. (T.1336-1338). XXXattended the XXX school District from 2nd through 8th grades. (T. 1339). He exhibited problem behavior at home and in school, and received private counseling. (T. 1343). XXXhad problems with pragmatic language and social cues, and his inappropriate behaviors escalated when he was in 7th grade, resulting in in-school and out-of-school suspensions for incidents including graffiti writing, unsafe behavior in a chemistry lab, possession of a laser pen, leaving the cafeteria without permission, and bothering other students. (T.
1341-1343). On October 12, 2012, after admitting that he
XXXwas from school for one year, and placed on home instruction. (T.1341,
1343). In January, 2013, XXXentered the School District; he was suspended twice: for stealing an iPod (Exh. Q), and for striking another student with a Lacrosse stick. (T.1353). The child’s parent pressed assault charges, and on June 24, 2013,
County Family Court adjudged XXXa juvenile delinquent, and placed him in XXX
Therapeutic Residence (“XXX”), a short-term intervention program for children who may otherwise face criminal charges and incarceration, developed by
County Family Court, County Probation Department, and New York State Office of Children and Family Services (Exh. B; T. 1284). On October 1, 2013, A. XXX, RN, MS, NPP, of XXX, diagnosed XXXwith , , and ; she ruled out Conduct disorder (Exh. 16). The XXX supervising psychiatrist told
XXX that XXXmay have ( ”). (T. 1360).
XXXachieved good grades in the XXX academic program (Exh. 15).
XXX did not refer XXXfor evaluation until he entered the District as a 16 year old, in October, 2013 (T. 1352). He was privately evaluated by XXX, Ph. D., in February and March, 2013. The evaluation (Exh. 17)
reports that V’s verbal and visual problem solving skills, processing speed, working memory, and full-scale cognitive functioning were all in the average range. He exhibited mild issues with receptive language and attention, and more significant issues with verbal learning and memory; his strengths were verbal and visual problem solving, visual memory, executive functions, visual perceptual skills, and gross and fine motor skills. Reading, math, and writing skills were in the range. Dr. XXX diagnosed XXXwith based on his clinically significant disruptive behaviors, and noted that XXXwas at risk for Disorder, and disorder. Dr. XXX recommended a Section 504 plan with preferential seating, discrete checks for understanding, extra time to complete assignments, testing accommodations, reading practice, keyboarding skills, study skills, implementation of behavioral and cognitive behavioral strategies, and a consultation.
V’s private therapist suggested a evaluation to determine if
XXXneeded medication (T. 1151, 1440), and on May 4, 2013, E. XXX, M.D., child and adolescent psychiatrist, diagnosed XXXwith , and noted that he is impulsive, anxious and highly mood-reactive. (Exh. R).
October 4, 2013 Referral to CSE
XXXwas registered in the District on October 4, 2013, while he was still in XXX
(Exh. 3), and the District obtained some records from his previous school placements and from XXX (Exhs. 5, 6, 7). On October 4, 2013, V’s parent notified the District that
XXXwas diagnosed with , and , that he was to be released from XXX on October 24, and that she wanted to refer him to the CSE for evaluation (Exh. 9). The District sent the parent a prior written notice (“PWN”) dated October 23, 2013, with consent to evaluate forms (Exh. 10). On October 23, 2013, XXX met with the District’s Director of Pupil Personnel Services (“PPS”), who informed the parent that that even if classified, XXXcould still be suspended for infractions regarding weapons, drugs or bodily harm(T. 795). XXX withdrew the referral to CSE, and requested a Section 504 Committee meeting (Exhs. 11, 12).
Section 504 Meeting
The section 504 meeting was held on November 6, 2013; participants were an assistant principal, school psychologist, special and general education teachers, a guidance counselor, the Director of PPS, and the parent. (Exh. 18). Based on the diagnoses in the XXX and XXX evaluations, XXXwas found eligible for accommodations: check for understanding, special seating arrangements, refocusing and redirection, additional time to complete assignments, and testing accommodations of extended time, separate location, simplified directions, and focusing prompts (Exh.
19, 21; T. 157, 217, 798-799). The team discussed counseling, but the parent declined the service, because she wanted to address V’s academics. (T. 217). The parent consented to the 504 plan on November 6, 2013 (Exh. 20). XXXdid well academically during Fall,
2013. (Exh. 30; T. 73, 93, 104-105).
On January 14, 2014, XXXwas for possession (Exh. 8, pp. 1, 3), and was again placed in XXX. (T. 1371). During the , XXXreceived home instruction from a tutoring agency and a District teaching assistant. (T. 84, 526). XXXreturned to school on February 11, 2014, 21 days after the (T. 86). V’s mid-term exams were administered by a teaching assistant when he was released from XXX. (T. 513). On March 3, 2014, XXXwas again for five days, for inciting a fight; he went directly from the to
XXX, from there to XXX, and did not return to the District. (Exh. 8, p. 2; T. 90-92).
January 15, 2014 Referral to CSE
On January 15, 2014, the parent requested an “expedited CSE.” (Exh. 23), signed consent for initial evaluation (Exh. 25), and completed a “Referral to the CSE” form
(Exh. 26). XXX told the Director of PPS that she wanted a RTC for V. (T. 803). A Social and Developmental History was completed on January 30, 2014 (Exh. 27). On January 17, 2014, the District arranged for a evaluation from XXX, M.D. (Exh.
28); the evaluation was done on February 8, 2014, but the District did not receive the report until March 13, 2014 (T. 806). Dr. XXX’ Report (Exh. 31) diagnosed
XXXwith and and
; the report states “does not fully meet criteria Anxiety Disorder, NOS, R/O
Conduct Disorder, R/O Post Traumatic Stress Disorder.” The report states that XXXmay have a burgeoning disorder, or may suffer from a combination of
Disorder (“ ”). The report recommends therapy from someone who treats children and is familiar with their behavior difficulties, including post traumatic behaviors. The report concludes that XXXmay be classified as and recommends a therapeutic placement, with a “containment structure and consistent limit setting.”
The XXX Evaluation
XXX arranged for a private evaluation of XXXby XXX XXX, Ph. D., a licensed psychologist, and bilingual /English) , who specializes in internationally post-institutionalized children who have suffered trauma, neglect, or abuse, and has published articles in peer-reviewed journals on the subject.
(T. 666). He is Principal of the Center for Cognitive-Developmental Assessment and
Remediation, a private agency founded in 1992 that offers services to internationally- children, including bilingual assessment and cognitive/language remedial services. (Exh. VV; T. 669). Dr. XXX assessed XXXin February, 2014; he met with and tested XXXfor 12 hours over two days, obtained information from V’s teachers, reviewed
V’s records, and spoke with V’s parent and XXX personnel. (T. 673). V’s medical history indicates that he was diagnosed with unspecified order of development (developmental disorder caused by pre-natal and environmental conditions), a diagnosis often given to orphans and/or neglected children; ; and (Exh. 32, p. 5; T. 687). XXXis predisposed to ), which Dr. XXX described as multiple repeated traumas in early childhood, resulting in inhibited integration of cognitive, emotional and sensory functions. (Exh. 32, pp. 5, 22; T. 687). XXXexhibits features of the disorder, including mixed maturity, hyper-arousal, and depression; he has poor self-regulation, and aggressive or inappropriate responses to social and school situations. (T.
689). Until XXXwas seven, he was neglected, abused, and institutionalized, and the abrupt loss of his first language ( ) had an adverse impact on his ability to regulate his behavior. (T. 689-691). XXXdid not show signs of Fetal Alcohol Spectrum
Disorders. (Exh. 32, p. 8). Dr. XXX’ testing revealed no signs of neurological impairment, but XXXexhibited anxiety, depression, poor self-regulation, and poor self-confidence. (Exh. 32, p. 9; T. 694). Language testing indicated that XXXhad good skills in cognitive/academic language, but had issues with pragmatic language. (Exh. 32, p. 12;
T. 697). XXXhas average cognitive abilities, but his emotional state and anxiety have a negative impact on cognitive performance. (Exh. 32, p. 15; T. 700). V’s academic achievement levels were average. (Exh. 32, p. 17). The results of Dr. XXX’ cognitive, language, and academic testing were consistent with Dr. XXX’ evaluation. (T. 757-759).
Projective tests indicated that XXXis insecure, anxious, and concerned about his future.
(T. 706-707). V’s behavioral/emotional profile included depression, elevated anxiety, trauma-induced anger, and poor ability to regulate emotions and behave in an age appropriate manner. Dr. XXX concluded that XXXhas DTD. (Exh. 32, p. 22). Dr. XXX diagnosed XXXwith , , and , Chronic. (Exh. 32, p. 23). The diagnosis was made because it is as close as possible to , which is not a “recognized” diagnosis. (Exh. 32, p. 24). XXXmet the criteria for classification with an XXX. (Exh. 32, p. 25). Dr. XXX recommended a RTC, with integrated special education and therapeutic services, which focuses on complex childhood trauma, and is experienced in dealing with internationally adopted, post institutionalized children. The program should be “relational, attachment- centered…[with treatment intended]…to teach how to build and maintain healthy, age-appropriate and socially acceptable relationships with parents, teachers, peers, and significant others.” (Exh. 32, p. 26; T. 708). The program should include intensive individual, group, recreation and canine therapy, and plans for transition back to family and school, with outpatient therapy and counseling. (T. 710). Dr. XXX’ report states that
V’s ability to self-regulate his behavior and emotions is his paramount educational need, and his IEP and transition plan should include goals in executive functioning/self-regulation; the report lists specific goals. (Exh. 32, pp. 27-29). Dr. XXX “warned” that
XXXrequires immediate, intense, specialized rehabilitation and therapeutic intervention, to avoid increased self-destructive behaviors, and “long-lasting negative consequences for him, his family, and society at large.” (Exh. 32, p. 30; Exh. I). Dr. XXX stated that XXX is an appropriate program for V, because it specialized in treating internationally- post-institutionalized children with complex childhood trauma, and issues with emotional regulation and attachment. (Exh. I; T. 715). XXX delivered
Dr. XXX’ report to the CSE shortly before the March 17, 2014 CSE review. (T. 806).
On March 5, 2014, the District sent a notice scheduling V’s IEP meeting for March 17, 2014 (Exh. 29). Before the CSE review, XXX told the director of PPS that she had retained an attorney, and that she wanted XXXto attend XXX. (T. 805). XXXwas accepted by XXX on March 17, 2014. (Exh. 33); XXX requested V’s records from the District on March 31, 2014, and XXXwas officially transferred from the District on April 1, 2014. (Exh. 44).
March 17, 2014 IEP Meeting
The March 17, 2014 IEP meeting participants were the Director of PPS, school psychologist, special and general education teachers, assistant principal, guidance counselor, social worker, District’s Counsel, parent, parent’s counsel, and director of
XXX. The team reviewed the XXX, Gindes, and XXX evaluations, V’s XXX High School records, and reports from the assistant principal and V’s teachers. (Exh. 34, p. 2). The school psychologist reported that the evaluation findings regarding V’s social/emotional functioning were consistent: XXXis a complex child who exhibits depression, anxiety, anger, inability to regulate emotions in an age-appropriate manner, and concern with perception of the world and others. (T. 295-296). The XXX Director told the CSE that XXX could not meet V’s needs, and that he required drastic intervention to avoid escalating behaviors and their consequences. (T. 1305). Based on the evaluations and parental concerns, the committee recommended classification with an XXX and placement in a RTC, with a 12:1:1 special class, once per week for 30 minutes 1:1, and program and test accommodations. (Exhs. 34, 36). Everyone at the meeting agreed on the classification and RTC recommendations. (T. 140, 354, 1393). The IEP has goals in writing, speaking/listening, speech/language, and social/emotional/behavioral areas, and carries over the Section 504 Plan’s program modifications and accommodations, and test accommodations. (Exh. 34, pp. 10-11). The IEP recommended a FBA and BIP, which could not be done immediately, because XXXwas placed in XXX. (T. 307). School, a possible placement for V, was named on the March 17, 2014 IEP because the IEP computer program does not permit a “final” IEP unless it lists s a placement. (T. 308, 833).
The CSE discussed the process of applying to RTCs; RTC applications include screening/interviews of the student and parent. (T. 424-429). The District requested the parent’s consent to send application packets to New York State approved programs; she refused. (T. 816). XXX refused to permit any screening/interviews of XXXby RTCs, because she felt they would be too disruptive, even if done via SKYPE. (T. 828). XXX told the CSE none of the programs the District could apply to in New York were appropriate because XXXrequired a program that specialized in internationally children with trauma, and identified XXX (located in XXX) as appropriate for V, because it focused on his emotional functioning, and offered a GED. (T. 300-301, 1396).
XXX and her attorney informed the CSE they were applying to Family Court to have
XXXreleased immediately from Court jurisdiction and XXX, to attend XXX. (T. 818,
1415). The District was concerned that XXX’s academic program was insufficient and could not prepare XXXfor a Regent’s diploma. (T. 819-822). A PWN dated March 17, 2014 summarized the March 17, 2014 IEP, included a copy of the procedural safeguards notice, and, for the parent’s signature, a consent for initial provision of special education services form (Exh. 36).
The District’s Out of District Coordinator sent out application packages without parental consent, “to find an appropriate educational placement for [V].” (T. 817). The programs expressed interest in V’s application, and requested permission to contact the parent to arrange tours and interviews. (Exhs. 38, 40, 41, 53). XXXwas rejected by School at (Exh. 37), the UFSD (Exh. 39), and
UFSD (Exh 52). notified the CSE that the parent refused to allow a screening of V, and acceptance depended upon screening (Exh. 54).
informed the District that the parent would not permit a screening. (T. 561, 832).
informed the District it had an appropriate placement for V, and had experience with children, but the parent told them she was not interested in the program, and would not permit XXXto be screened. (T. 561, 842).
Placement in XXX
On March 31, 1024, Family Court granted the parent’s application for V’s release from XXX. (Exh. D). On April 4, 2014, the parent’s attorney notified the District that
XXXwas unilaterally placed in XXX, and the parent would seek tuition reimbursement (Exh. Y); the District’s counsel acknowledged receipt by letter dated April 8, 2014 (Exh.
Z). On April 25, 2014, the District’s counsel notified the parent’s counsel that the District would continue to apply to in-state RTCs, and requested information reading
XXX’s academic program (Exh. AA).
April 23, 2014 IEP meeting
There was a second IEP meeting on April 23, 2014 (Exh. 46), during which XXX signed consent for the initial provision of special education services (Exh. 48; T. 311,
836). The District’s Out-of-District Coordinator discussed the status of application packages and responses, and the possibility of personal or SKYPE screenings. (T. 836).
V’s parent would not allow any screening, told the CSE that she wanted XXXto remain at XXX, and that he was “in crisis” and too fragile to look at other schools. (T. 439). The
CSE could not consider XXX because it is a non-approved program. (T. 446). XXX
would not consider any program other than XXX. (T. 313). The CSE reviewed a letter from V’s XXX counselor (Exh. 49), which described the XXX program, but did not mention the academic component, or describe V’s progress. The XXX counselor informed the District via telephone that XXX had special education teachers on staff, but did not offer Regent’s preparatory courses. (T. 314). The parent said that XXX would not address academics until XXXwas emotionally stabilized. (T. 318).
After the April 23, 2014 CSE meeting, the District consulted with SED concerning appropriate in-state residential programs for V, and four programs were identified:
Academy. (T. 562-563). requested a screening of
XXX(Exh. 53), but the parent refused to allow the screening (Exh. 54).
informed the District that their program offered 6:1:1 and 8:1:1 classes, family and individual counseling, and an adventure program, and that some students were children. (T. 568).
June 20, 2014 IEP Meeting
There was a third IEP meeting on June 20, 2014, with the same participants as the March 17, 2014 IEP meeting. (Exhs. 57, 58). The District reviewed potential placements, and requested parental cooperation in the placement process, including consent to screening/interviews. (T. 852). XXX told the CSE she would not consider placement other than XXX, and would not consent to any screening/interview of V, on the grounds that it would be too stressful and disruptive. (T. 327, 853). The school psychologist and Out-of-District Coordinator reported on their contact with ; the parent refused to allow XXXto be screened for that program. (T.
383, 570). The XXX Director participated in the IEP meeting via telephone, and informed the CSE that XXX was intended for children with
”), that the program first addresses students’ emotional issues to “build trust,” then addresses academics (T. 326); he had no information regarding V’s participation or progress. (T. 571). The CSE reviewed a May 22, 2014 letter from V’s
XXX counselor stating “Any conversation or implication that XXXmay have to move again will significantly impede his treatment, has a high probability of re-traumatizing him and could have dire consequences.” (Exh. 59). The CSE determined that XXX was not appropriate, because it did not have a sufficient academic component. (T. 572, 852).
The Draft IEP added small group twice per week for 30 minutes. (Exh. 60, p.
13).
V’s IEP was not finalized because the parent did not permit XXXto be screened by potential placements. (Exh. 64).
In September, 2014, an approved New York State RTC, which has served students with , informed the Out-of-District Coordinator that they attempted to arrange a screening of V, but his parent refused. (Exh. 70; T. 574).
Testimony re: XXX
XXX XXX, Ph. D., founded XXX in 2006; the program is for pre-teen and teen age children with trauma and/or attachment disorder. (T. 913). The general goal of the program is to develop reciprocity in relationships to foster appropriate social behavior and relationships, in the home and school environments. (T. 936). The program is accredited and approved by XXX as a private program for students with emotional and behavioral impairments. (T. 916, 958). There are 77 students; boys and girls have separate living quarters and classes. (T. 916). Students are admitted based on a review of their evaluations, reports, hospital records, and other documentation, interviews with former therapists, and a psycho-social summary. (T. 921). Therapeutic interventions include canine therapy, which is intended to foster the ability to form appropriate relationships, eye movement desensitization and reprocessing (“EMDR”), neuro feedback, sensory integration, and adventure therapy. (T. 917-919). Family therapy is an essential component of the program, which also offers parent workshops and retreats. (T. 922) Students live in homes of 8 or 9 students, their dogs, and residential coaches; the coaches are trained in crisis intervention techniques and other subjects. (T. 932-933). The average stay is about 12.5 months; about 81% of the students return to public school or a therapeutic boarding school. (T. 919-921).
XXX XXX, Boys Clinical Supervisor at XXX, meets with XXXthree times per week for individual therapy, family therapy (via SKYPE), and two hours per week for group therapy. (T. 997). Mr. XXX developed the goals on V’s initial Treatment Summary based on a assessment (Exh. II; T. 1005), Goals are modified monthly to reflect V’s needs and progress. (T. 1006). XXXhas progressed since he entered XXX, although he still exhibits difficult behaviors. In October, 2014, XXXwent AWOL, and was found within one hour; he later expressed plans to elope again in “illegal communications” that were intercepted. (T. 1033, 1053). XXXwas involved in an incident during which students drank alcohol while on a community outing, and has twice been in fights with other students. (T. 1059, 1062). When a student is dysregulated and deemed to be at risk of elopement or posing a danger to himself or others, XXX implements “safety closeness,” which ensures that a caregiver is always within six feet of the student. (T. 1031-1032). XXXhas been on safety closeness several times. (T. 1048).
On April 22, 2014, Mr. XXX wrote that XXXrequires an attachment-based program such as XXX, which provides consistent, 24 hour, specialized care, including individual therapy, family therapy, group therapy, canine therapy, adventure therapy, and optional neuro-feedback therapy (Exh. 49). Mr. XXX stated that it would “traumatize” XXXto be interviewed for another program, because of his abandonment issues. (T. 374). XXX visited XXX four times. (T. 1035).
XXX XXX, Ed. D., Academic Director of XXX for 1.5 years, testified regarding
XXX’s academic program. XXX has four hours per day of academic instruction from Monday through Thursday, and two hours on Friday; there is also canine therapy, adventure therapy, art and physical education, and teachers are available for extra tutoring. (T. 953). The assistant academic director is the IEP coordinator. There are 8 teachers, certified to teach in XXX; two teachers and the assistant academic director have special education certification. (T. 973). The faculty meets weekly, and there are monthly team meetings. (T. 970-971). Classes are departmentalized and have from 6 to 8 students. (T. 954). XXX’s academic program complies with the XXX “common core” curriculum; classes are intended to prepare students for re-entry into public school in various states. (T. 960). Regent’s exams are not available at XXX. (T. 983). XXX issues monthly treatment summaries, which includes academic goals. (T. 960). V’s academic subjects were Algebra, Biology, Language Arts, and U. S. History; his monthly summaries (Exhs. II-LL) and Student Transcript (Exh. MM) from May through July, 2014 indicate that XXXachieved good grades in all his courses, and earned credits. Dr.
XXX stated that during the summer XXXwas involved in a physical altercation in class, but responded to intervention, and the incident was resolved. (T. 966). Teachers are trained in intervention techniques, including de-escalation and restraint. (T. 977).
XXX participates in weekly family therapy via SKYPE, and visited XXX six times.
XXXprogressed at XXX: he has a better relationship with XXX, and he is aware that he requires a program like XXX. The program costs $ 00 per day, or $ 0.00 per 30 day month, for “privately paid” students. (Exh. 62, p. 1). XXX pays about $1 0 per month for XXX. (T. 1424). V’s former private therapist has been involved with residential programs since 1983 (T. 1124); he reviewed XXX’s web site, and concluded it was appropriate for XXXbecause it was specifically for children with had credentialed staff, and appropriate staff to student ratios. (T. 1142).
III. Findings and Conclusions of Law
I conclude that the March 17, 2014 IEP was procedurally and substantively appropriate and could have provided XXXwith FAPE, had not the parent failed to cooperate in the placement process, by refusing to allow XXXto be screened or interviewed for any RTC placement. I conclude that XXX was an appropriate program for XXXwhen the parent placed him there, but equitable considerations preclude an award of tuition reimbursement.
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 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 (Application of the Dep't of Educ., Appeal No. 07-018).
In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993)
("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.
The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school District's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances. The Second Circuit has cautioned: progress does not itself demonstrate that a private placement was appropriate. Indeed, even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where ... the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.
In New York State, the school District has the burden of proof in impartial hearings, except that in tuition reimbursement cases, the burden is on the parent to show that the private placement is appropriate, and equitable considerations support a tuition award.
I find that the District did not inappropriately influence the parent to withdraw her October 4, 2014 referral to the CSE, and that the withdrawal was made knowingly and without any undue influence. XXX is an educational professional with experience as a director of special education services, and is aware of the referral, evaluation, and IEP process. (T. 1393). I credit the testimony of the District’s Director of PPS that XXX withdrew the referral when she learned that classification as a student with a disability would not protect XXXfrom suspension because of drugs or violence. (T. 795, 1163).
XXX made an informed choice to request a Section 504 plan, rather than classification.
The District determined that XXXwas entitled to Section 504 accommodations, and they were implemented. In addition to the Section 504 plan, the District provided XXXwith a mentor. (T.66). Until the January 14, 2014 suspension, XXXmade academic progress in the District. (Exh. 30). Despite a history of problem behaviors in three school Districts
XXXattended, he made adequate educational progress, and the parent never referred him for evaluation. (T. 1352). She declined counseling as part of the Section 504 service.
(T. 217). I conclude that nothing that occurred between V’s entrance into the District and the January 15, 2014 referral indicates that the District should have acted contrary to the parent’s withdrawal of the October 4, 2013 referral, and identified XXXas a student with a disability.
The parent’s January 15, 2014 request for an “expedited CSE” should have been granted. The District Director of PPS testified incorrectly that an expedited evaluation was not required even though XXXwas recently because “…it was a five day …not a superintendent’s hearing…or a change in placement.” (T. 800). 8 NYCRR §201.1(6) states that “if a request for an individual evaluation is made during the period that a nondisabled student… is suspended pursuant to Education Law section
3214 …, the evaluation must be conducted in an expedited manner in accordance with this section.” The definition of “suspension” in Education Law section 3214.3(b)(1)
includes a five day suspension, and I find the parent was entitled to an expedited evaluation and eligibility determination. However, while the evaluation and CSE meeting may have exceeded the “expedited” limits imposed by §201.6 (the IEP meeting was about 15 school days later than required), I find that the District acted immediately to secure the required evaluation, that the late delivery of the XXX and evaluations were not caused by the District, and that the evaluations and IEP meeting occurred as soon as practicable.
I find that the March 17, 2014 IEP team had all required members, and the parent had full opportunity to participate. XXX did not dispute that she received the procedural safeguards and due process rights before the meeting, and she was accompanied by counsel. The CSE had ample evaluative material to consider: the evaluation was thorough, had testing results consistent with the XXX evaluation done the prior year, and reached the same conclusion as the XXX evaluation: that XXXrequires a therapeutic residential placement to address his serious emotional and behavioral issues. Contrary to the assertion in the parent’s post-hearing memo (Exh. IV, p. 8), the CSE did consider the evaluation, and incorporated whole sections of it into the IEP. The basic recommendations of the IEP – that XXXshould be classified with an XXX and attend a RTC program – were supported by the evaluations and were not disputed by anyone at the IEP meeting. Testimony indicates that the IEP meeting was long and tense, but I do not find that there was “animosity” towards the parent: that the CSE raised questions about the appropriateness of XXX, and the parent questioned the appropriateness of programs the CSE applied to, does not indicate any personal animus.
The parent’s post-hearing memo raises allegations regarding the District’s failure to do an observation of XXXand the sufficiency of the IEP goals and mandate, which were not included in the DPC. “A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][I], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. §
1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]; Application of a Student with a Disability, Appeal No. 11-041). While it is not necessary to address these issues, for the purpose of a complete record I find that the IEP goals address V’s areas of need and are appropriate, that RTCs are a “therapeutic milieu” in which intensive counseling is programmatic, and that while a classroom observation is a required part of an evaluation (8 NYCRR 200.4(b)(1)(iv)), the District’s failure to conduct one in this case does not invalidate the IEP, since the CSE team had adequate information about V’s classroom performance from V’s teachers in the District, and the Director of XXX, where XXXwas placed when the meeting occurred.
I find that the District was not able to “finalize” V’s IEP, because the parent persistently refused to cooperate in the placement process. (Exh. 64). The District discussed the RTC application procedure at the IEP meeting. (T. 299) The RTC application process is mandated by SED, which issues yearly guidance to Districts regarding placement of students in out-of-state residential schools. (See, e.g., March, 2013 Special Education Field Advisory at www.p12.nysed.gov/specialed/publications
/OOSPlacementMemo-2013.pdf - 69k - 2013-03-12). Districts are required to first refer students to appropriate in-State programs, even if the student is already placed in an out-of-State approved private school or emergency interim placement. The District must inform parents of the need to cooperate with the District's efforts to identify a facility that will accept the student. Parents are "integral partners" in the referral process and must cooperate with the intake process, and the CSE should emphasize to the parents the importance of the intake interview for the residential school to obtain needed comprehensive information about the student and his/her needs and for the parents to learn about the school. A parent's disagreement with a placement or preference for another school does not justify a decision by the CSE to not recommend an approved in-
State program that has accepted the student where there is a determination that it would be able to implement the student's IEP. (See Application of a Student with a Disability, Appeal No. 12-001). I conclude that XXX did not cooperate in the referral/intake process, by repeatedly refusing consent for XXXto be interviewed, and that this lack of cooperation prevented the District from determining if there was an appropriate placement for V.
Immediately following the March 17, 2015 IEP meeting, the District began the process of applying to RTCs for V. This was done despite the parent’s refusal to consent to sending applications because, as correctly stated by several District witnesses, “the District must take responsibility to secure an appropriate placement for the student in the least restrictive environment even in the instance where a parent does not cooperate with the referral and placement process.” (March, 2013 Field Advisory, supra, p. 6).
Several of the RTCs expressed an interest in XXXand requested a screening. Contrary to the parent’s DPC allegation, I find that screening is an important part of the application process, and a RTC program’s appropriateness cannot be determined without it. The parent points out that XXX admitted XXXwithout a screening; however, I find the statements in the SED Field Advisory, supra, the correspondence from the RTCs introduced into evidence, and the statements made by the RTC program personnel to District witnesses, persuasive regarding the importance of screening potential students.
The facts of the instant proceeding are similar to those discussed in Application of a Student with a Disability, Appeal No. 12-001, where the parents were repeatedly made aware of the details of the RTC placement process that was required in order for the CSE to secure a placement and finalize the student's IEP, the parents repeatedly made it clear that they did not intend to complete the intake process by allowing the student to be interviewed, chose to unilaterally place the student and only informed the District of that decision after the placement was made, and the parents’ contention that they were justified in refusing to produce the student for screening was not persuasive given the evidence in the hearing record that the screening could have been conducted by SKYPE.
I reach a conclusion similar to that reached in 12-001: since XXXrequired an RTC, and I have already determined that the IEP was appropriate except for lack of a specific placement, I find that the District offered FAPE and could have implemented the student's services in conformity with the IEP, had the parent not thwarted the intake process by failing to make the student available for screening.
I find that when XXX made the unilateral placement, XXX was an appropriate program for XXXbecause it addressed the specific emotional and behavioral issues that interfered with his education, and provided a sufficient academic component. The program offered intensive individual, group and family therapy, canine therapy, and adventure therapy in a small, structured, highly-supervised setting, and was intended for students similar to V: post-institutionalized, with symptoms of and/or
(T. 913-919, 922). XXX is approved by XXX and accredited. (T. 916, 958). The academic part of the program is staffed by certified teachers, and includes an IEP coordinator with special education certification. (T. 973). The curriculum is in line with the “common core,” as evidenced by V’s subjects. (T. 956, 960). XXX, as any other out-of-state placement, could not administer Regent’s exams, but it could prepare XXXto take the exams, or for an eventual return to a public school placement. (T. 960). At the IEP meetings, the District expressed legitimate concerns about XXX’s academic program, based on the information then available to it. But I find that parent showed through the testimony of the XXX witnesses that the program had appropriate therapeutic and academic components to address V’s needs.
I find that equitable considerations preclude any award of tuition reimbursement, for the reasons cited above regarding the parent’s lack of cooperation in the placement process part of the IEP development. In addition, the parent did not provide the District with the required “10 Day Notice” of unilateral placement. IDEA provides that tuition reimbursement may be reduced or denied if parents do not provide notice of unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).
Application of the XXXXX School District, Appeal No. 12-132. XXX’s attorney did not provide notice until after both the IEP meeting and V’s placement in XXX, and the notice did not include any of the parent’s concerns regarding the District’s actions. (Exh.
Y). Lack of a 10 Day Notice is a consideration in determining whether a tuition reimbursement award should be made. Far more significant in this case is the parent’s continued refusal to allow XXXto be screened by any potential RTC programs, even after it was proposed that screening could be via SKYPE. The parent refused consent for screenings at the March, April and June IEP meetings; as noted above, this thwarted the District’s attempts to find an appropriate placement. I find that by the March 17, 2014 IEP meeting, the parent had “pre-determined” that XXXwould attend XXX, refused to cooperate in any effort regarding a different placement, and blocked the District’s efforts to follow the RTC placement process. (see Bettinger vs. N.Y.C. Bd. Of Ed., 2007 WL 4208560 (SDNY, 2007); Application of a Student with a Disability, Appeal Nos. 11-131,
12-001, 14-077). Having made the unilateral placement, the parent attempts to justify the refusal to permit screenings by claiming they would subject XXXto “re-traumatization.” I find the justification fails because the screenings could have been done remotely, via SKYPE. The claim of “re-traumatization” could have been made no matter where XXXwas placed. The parent presented the District with a fait accompli:
XXXwas placed in XXX, and could not be considered for any other placement, because it may traumatize him. The vague fear of “re-traumatization” is rationalization after the fact, and does not justify the parent’s failure to cooperate with the CSE and consent to screenings. The parent’s allegation that none of the RTCs that District applied to were appropriate also fails in light of the her failure to cooperate, because her actions barred the CSE from determining if any of the programs were appropriate. XXX unilaterally determined that the potential RTCs were inappropriate, but her testimony indicated reliance on vague and uncorroborated sources. (T. 1384-85). I conclude that the equities preclude tuition reimbursement.
Regarding the parent’s allegation that the District failed to send to her copies of the correspondence with RTCs regarding the application/placement process, I find that the District did not willfully withhold the correspondence, that it may have occurred because of an address error which was corrected, that the parent was ultimately provided with the correspondence, and that there was ample opportunity to discuss the status of applications at the April and June IEP meetings.
Finally, I find disingenuous the parent’s claim that V’s discharge by Family Court precipitated an immediate need for residential placement, since it was the parent’s petition for his release that precipitated the Family Court’s action. In any event, the CSE recognized the need for a RTC program at the March 17, 2014 IEP meeting and immediately attempted to find an appropriate program.
I have considered the parties’ other arguments, and find it not necessary to address them in light of the foregoing conclusions.
IV. Motion to Re-Open the Hearing Record
Subsequent to receipt of the parties’ post-hearing memos and closing of the record, the District moved to re-open the record, based on allegations that XXXwas required to leave XXX. I denied the motion, based upon my findings that: an impartial hearing officer has no authority to re-open a closed record; the instant hearing record was sufficiently complete to determine XXX’s appropriateness when the unilateral placement was made; and the additional evidence was not “outcome dispositive.” As noted in the Motion Decision (Exhibit VIII) V’s progress, or lack thereof, in XXX may be relevant to determining the program’s appropriateness, but is not dispositive
(Gagliardo, supra). XXX staff testimony, and V’s XXX treatment team summaries, indicate that he made some progress (and suffered some setbacks) in his first few months in the program. His departure from the program one year after he was placed, nine months after the DPC, and three months after the last hearing date, for whatever reason, does not vitiate the program’s appropriateness at the time placement was made and the several months following that placement. Even if the District’s allegations regarding the circumstances of V’s removal from XXX are true, it would not change my conclusion that XXX was an appropriate program when the unilateral placement was made.
V. Order
IT IS THEREFORE ORDERED THAT: a) the parent’s request for tuition reimbursement is denied.
Dated: March 20, 2015
______________________________________
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.
Footnotes
[2] 67 XXX Timeline - Supporting documents Various 9 68 Report Card 2013/14 1 69 OMITTED 70 Email: to XXX 9/24/14 1 71 (“RTC”) Application Packet 4/25/14 71 72 Article re: Residential Placement (Computer Extract) 2/11/10 2 73 Inc. Article: “Schools We Recommend” (Computer Extract) Undated 1 74 2014 Professional Healing Trauma & Creating Attachment Conference 5/13-14/14 4