New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 131508

Student’s Name:

Date of Birth:

District: 28

Hearing Requested By: Parent

Date of Hearing: January 5, 2011

Hearing Officer: Edgar De Leon, Esq. Case No. 131508

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 01/05/11

PARENT 01/05/11

“Confidential” PARENT 01/05/11

On December 21, 2010 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and the Regulations of the Commissioner of Education, Part 201 - Procedural Safeguard for Students with Disabilities Subject to , concerning a dispute between the Parent of a (14) year old student and the New York City Department of Education (“DOE”) - District 28, involving the “manifestation determination” and subsequent of the student.

After an unsuccessful “resolution period”, a notice to proceed to an expedited impartial hearing was received from the New York City Department of Education Impartial Hearing Office on December 30, 2010. The hearing of this matter was held on January 5, 2011 at 10:00 AM. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

The student is classified as a student with an “ ” who was placed in a - , with a “ ” staffing ratio and related services consisting of counseling in a separate location in a “1 x 40 x 5” setting. (D-4) On November 18, 2010, the student received a letter of for a student’s while students held the student in a and his . (D-3) On December 6, 2010, a hearing was held and the charges against the student were sustained. (Id.) On December 9, 2010, a (“ ”) was held, where it was held that the student’s was not a of his . (D-5) The Parent disagrees and requests the instant hearing.

The DOE filed a Motion to Dismiss the Parent’s Due Process Complaint (“DPC”), which really amounted to a challenge to the sufficiency of the Parent’s pleading. (T-5-10) The DOE Motion to Dismiss was denied by the undersigned because in my opinion, the DPC meets the bare minimum requirement pleading under law. (T-10)

THE DOE’S CASE

The DOE did not call any witnesses (T-23) and submitted (7) documents into evidence at the hearing. (T-20) The DOE did not answer the Parent’s DPC. During opening statement, the DOE stated that in its opinion, the Parent’s argument is that the student did not participate in the in question and that her complaint should properly be referred as “an appeal” of the hearing to the DOE Office of Legal Services. (T-22)

THE PARENT’S CASE

The Parent called (2) witnesses to testify and submitted (4) documents into evidence at the hearing. (T-21) During opening statement, the Parent argued that the student did not do what he was determined to have done at the hearing. (T-22-3) In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the student in this case. (T-25) He stated that he “was up the ” when the occurred. (T-25) On cross examination, the witness testified that he had been previously when he was in school. (T-26-7) In his current school, he has been on the honor roll three times. (T-27) You get on the honor roll by going to all of your classes, achieving your goals and doing your work. (T-34) You have to have an (85) to (90) average for the honor roll. (T-34-5) A (90) to (100) average gets you on the list. (T-35) He is happy in his school and likes the and other students. (Id.) There was no-redirect testimony taken from the witness. (T-27)

When questioned by the undersigned, the witness stated that he was with when the happened. (T-28) He did not have any with the student who was assaulted. (Id.) He is receiving group and asked to receive individual when he or something. (T-29) He has been and , but then added “well, not really.” (T-29-

30) He asked for the individual last year. (T-30) He has no idea as to why he started to receive . (T-31) He has not had any or in his current school. (Id.) This is the first time that he has been there. (Id.) He is in the 8th grade now and has attended his current school since grade. (Id.) He also takes but he is not sure for how long. (T-31-2) He gets along with his . (T-32) He knows that someone took the /student’s and that’s about it. (T-33)

The Parent’s second and final witness is the student’s mother. (T-36) She stated that the student has been taking since he was between ( ) and ( ) years old. (T-36) The student had and from school. (Id.) He was also at . (T-37)

On cross examination, the witness testified that the student is doing much better in school because he is , and doesn’t have many . (Id.) She really does not believe the student did what they found he did at the hearing. (T-38-9) That is why she is at this hearing. (T-39) Sometimes the student gets “ ” when they change his . (Id.) The student receives one-on-one therapy outside of school once a week. (T-40) He is receiving all the services that are on his IEP. (Id.)

When questioned by the undersigned, the witness stated that there were no s and the student did not get into when they changed his . (T-39)

FINDINGS OF FACTS & DECISION

The purpose behind the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 - 1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[8]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]).10 All children with disabilities residing in the State between the ages of 3 through 21, inclusive, have the right to FAPE, including children with disabilities who have been or expelled from school (20 U.S.C. § 1412 [a][1][A]; see also 34 CFR § 300.121 and 8 NYCRR 201.10). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). 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]). If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]; [D. Vt. 1996]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]).

The IDEA, New York Education Law and their implementing regulations provide specific procedural protections for children with disabilities who are subject to discipline (20 U.S.C. § 1415[k]; N.Y. Educ. Law § 4404[4][b]; 34 C.F.R. §§ 300.519-300.529; 8 NYCRR Part 201). New York requires that the CSE shall conduct an review of the relationship between the student's disability and the behavior subject to disciplinary action immediately, if possible, but in no case later than ten school days after a decision is made to impose a that constitutes a disciplinary change in placement (8 NYCRR 201.4[a][3]; Application of a Child with a Disability, Appeal No. 05-055; Application of the Bd. of Educ., Appeal No. 04-053; Application of the Bd. of Educ., Appeal No. 04006; Application of the Bd. of Educ., Appeal No. 03-075). In addition, either before or not later than ten business days after removing the child for more than ten consecutive school days, the CSE must convene to develop an assessment plan to address the behavior that resulted in the suspension, if no functional behavioral assessment had previously been done (20 U.S.C. §1415[k][l][B][I]; 34 C.F.R. §300.520[b][l][i]; 8 NYCRR 201.3[a][1]; Application of a Child with a Disability, Appeal No. 02-064). As soon as practicable after developing the plan, and completing the assessments required by the plan, the CSE must meet to develop appropriate behavioral interventions to address the behavior that resulted in the removal (34 C.F.R. §300.520[b][2]; 8 NYCRR 201.3[a][1]).

Additional services may be provided to make up for educational services not received during a student's suspension. State Review Officers have awarded equitable relief in the form of additional educational services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030).

State regulations provide that a superintendent's hearing shall be conducted prior to a manifestation determination made by the manifestation team. (See 8 NYCRR 201.9[c]). Where the manifestation meeting is held prior to the superintendent's hearing it does not comport with the law. 8 NYCRR 201.9(c)(1). Nevertheless, this may only result in de minimus error if the hearing record does not persuasively identify harm to the petitioner resulting from this procedural error. (See 20 U.S.C. § 1415[f][3][E][i]; 8 NYCRR 200.5[j][4]).

The manifestation team is charged with reviewing all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine if: (1) the conduct in question was caused by or had a direct and substantial relationship to the student's disability; or (2) the conduct in question was the direct result of the school district's failure to implement the IEP. (See 8 NYCRR 201.4[c])

The initial determination of the “guilt” of a student is made by the chief school officer under N.Y. Educ. Law § 3214, and is not reviewed by either an impartial hearing officer or the State Review Officer under the IDEA and N.Y. Educ. Law § 4404. (See SRO No. 01-099) If a parent seeks an order expunging a student’s from his or her school record, such relief should be sought in a proceeding conducted under the Family Educational Rights and Privacy Act, rather than the IDEA. (See 34 C.F.R. § 300.567-

570) Here, the Parent’s sole purpose and argument at the impartial hearing concerned her belief that the student “did not do it” and was not involved in the in question. (T-25, 38-

9) Accordingly, I make no finding in that regard and once again advise the Parent to pursue to the appeal process as indicated on the Hearing Decision she received. (D-3)

I further note that the record evidences that the student’s is not a of his . The student herein is classified as having an “emotional disturbance.” (D-7) The regulations of the Commissioner of Education define " " as: a exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance: (i) an inability to learn that cannot be explained by intellectual, sensory, or factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with and ; (iii) inappropriate types of or under normal circumstances; (iv) a generally of or ; or (v) a tendency to develop or with or school . The term includes . The term does not apply to students who are socially maladjusted, unless it is determined that they have an . (See 8 NYCRR 200.1[zz][4] and 34 C.F.R. § 300.8[c][4]) The definition of “ ” denotes a for others, unlike a “ ” which has been found to be associated with . (See SRO Nos. 06-056, 06-118, 05-112, 05-112, 05-061, 04-070, 03-085, 01-055, 98-10 & 97-69)

Here, the student testified that he has been on the honor roll at his school three times. (T-27) He is happy at his school and he likes his and students. (T-35) What’s more, he has not had any or at his current school. (T-31) The record is devoid of any indication that his found involvement in the was a manifestation of his disability.

Neither is there any indication in the record that the student’s adjudged impedes his or her learning or that of , requiring the CSE to consider, when appropriate, strategies, including positive , and supports to address that . (See 20 U.S.C. 1414[d][3][B][i]; 34 C.F.R. § 300.346[a][2][i] and 8 NYCRR 200.4[d][3][i]) The official commentary to the federal regulations specifies that "a failure to, if appropriate, consider and address these in developing and implementing the child's IEP would constitute a denial of FAPE to the child." (See 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 38) Here, as indicated above, the record establishes that the student is doing well in school. (Supra)

The record does not indicate that the student has or is any . Accordingly, I find that there are no equitable considerations warranting an award of compensatory services to the student for the educational services not received during the student's . (See SRO 03-075, 02-042 & 02-030)

In this case, the DOE held a superintendent hearing on December 6, 2010 and the charges against the student were sustained. (D-3) On December 9, 2010, a (“ ”) was held, where it was held that the student’s was not a manifestation of his disability. (D-5) These procedures comport with the law. (See 8 NYCRR 201.9[c]) There is no indication that the manifestation team did not review all relevant information in the student's file, to determine if: (1) the conduct in question was caused by or had a direct and substantial relationship to the student's disability; or (2) the conduct in question was the direct result of the school district's failure to implement the IEP. (See 8 NYCRR 201.4[c]) Finally, the DOE prepared a special Education Plan as a result of the student’s . (D-6)

For all of the reasons stated herein, I find that the Parent’s complaint in this matter was improperly filed as a request for an impartial hearing. I further find that the student’s adjudicated was not a manifestation of his disability.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief as indicated in the DPC filed on or about December 21, 2010 is DENIED and it is further

ORDERED that the CSE shall forthwith reconvene for the purpose of creating a new IEP for the student and recommended and appropriate placement for the same. Dated: January 20, 2011

_____________________________

EDGAR DE LEON , ESQ.

Impartial Hearing Officer

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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 RECORD

Number/Letter Title Dated For # of Pages

1 US Express Mail Receipt 12/30/10 DOE 01

2 Motion to Dismiss 12/27/10 DOE 03

3 Hearing Findings 12/29/10 DOE 04

4 DPC - Expedited Request 12/17/10 DOE 02

5 Notice of 12/09/10 DOE 01

6 Special Education Plan 11/22/10 DOE 02

7 I.E.P. 05/25/10 DOE 14

A Student Statement - “ ” 11/17/10 PARENT 01

B Student Statement - “ ” 11/17/10 PARENT 01

C Student Statement - “ ” 11/12/10 PARENT 01

D Student Statement - “ ” 11/17/10 PARENT 01