Impartial Hearing Decision

UNIVERSJ1Y OF THE STA TE OF NEW YORK

STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE IMPARTIAL

HEARING BROUGHT UPON THE

REQUEST OF PARENTS ON BEHALF

OF THIER CHILD,

-AGAINST- Decision and Order MORE

. SCHOOL DISTRICT

BEFORE: Martin J. Kehoe, Ill, Impartial Hearing Officer

RECEIVED

JUN 11 2018

OFFICE~ OF SPECIAL EOUCATION

UE PROCESS UNli

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The District will be referred to as "District", the parent as "Parents'' and the child will be referred to as "Student". The Parents filed a complaint notice, dated March 16, 20 I 8, (Ex. l ), and an amendment to the complaint notice by email on March 27, 2018 (Ex. 2). A hearing was held on April 19, 2018.

This decision is the review of the Manifestation Detem1ination (A review of the relationship between the student's disability and the behavior subject to disciplinary action to determine if the conduct is a manifestation of the disability) relative to a disciplinary finding from the District's Principal following a five-day suspension of the Student: "lt was reported by several students and staff that [the Student] was making statements about recent and past He also inquired about where to get "(Ex. 7, P 16). On March 15, 2018 a Manifestation Determination Review (MDR) ensued.

At the outset, I note the unusual nature ofthis (my) review. Specifically, in this record I am privy to multiple serious allegations pertinent to violations of the District Disciplinary code. Although in the record (Ex. t 0), these allegations were not before the Manifestation Team and therefore are not the subject of this decision. I will not repeat them.

This limit of my jurisdiction is based upon an agreement that was fashioned between the District and the Parents whereby the "Superintendent's Hearing" was adjourned before any findings were made relative to these allegations (Ex.s 8, 9 & 10; March 9, 2018). Rather, a single, limited issue has been proffered for review based upon a Principal's five-day suspension, dated March 1, 2018: The review of the MORE finding ofno manifestation from the March 15, 2018 MORE (See Ex. 7, Transcript of the Manifestation Determination P. 16 lines 7 & 8, See also, the Suspension Letter Ex. 22 (this letter was not before the Manifestation Determination Team).

Apparently, the parties also agreed that the Student would receive services at home or pursuant to an Interim Alternative Educational Setting (IAES) until such time that the Superintendent's Hearing were to resume and conclude, or the parties otherwise agreed to a different resolution. My reading of 8 NYC RR sections 201.4 & 201. 7 would ordinarily preclude the instant procedure insofar as a Manifestation Review typically follows a ten-day disciplinary change of placement - not a five-day suspension. Moreover, it appears that my opinion may be advisory, and therefore probably not favored, based upon the subsumption of the current charge in the pending Superintendent's charges and/or moot (imminent graduation). But, a liberal and practical reading of section 20l.7(f) persuades me otherwise and I shall continue. (See, (f):

"School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement consistent with th.e other requirements of this Part is appropriate for a student with a disability who violates a school district's code of conduct.")

In this case there is little question that the incidents and-were disruptive to the functioning of the school: See. the (Ex. 12) and the interview with the school i

(Ex. 12. A). The Director of Special Education explained that the incident was disruptive to the school and local community (T. P. 57 - 58, 60). She said. " ... People were scared.. . . We had a large They were everything. We had numerous parents calling the school. We had kids not coming to school. Several of my CSE meetings that I'd scheduled were canceled and it was just a lot of and - - , , (T. P. 57 - 58). She added that the day after the incident, the school held assemblies to share the with the students and stafl: and administrative staff were available to answer student and teacher questions. (T. P. 58). •calls were made to the families as well (T. P. 61). She said the District was notified about the against the Student for the school (T. P. 61 - 62, Ex. 11). The Director of Special Education did not know if there was disruption in the school the day of the incident or in the after-school activities that day (T. P. 95). According to the school website, school was under normal operation that day (Ex. 13, P. 5). While I make no finding concerning this environment in the aftermath of the Student's conduct, I do make note because I suspect that the parties brought a sense of urgency and distrust to the MORE that is unusual, to say the least.

Parents' Position

In the complaint notices, the Parents alleged that the "LEA" (I believe the Parents were referring to the Director of Special Education) did not include all the evaluations/assessments and other materials in the Student's records that diagnosed him with including an evaluation that reaffirmed his diagnosis o f - at the percentile. They added that the LEA declined to include all parts of the Student's Individual Education Program (IEP) in determining if the IEP was implemented correctly and declined to consider the viewpoints of other members of the team and made the decision unilaterally. The Parent requested that the hearing officer review the recording of the meeting, the IEP and evaluations to determine if the Student's disability was a factor in his use of inappropriate language and for the Student to return to his regular school placement for the rest of the year and graduate. They are also seeking all relevant information evaluation/assessments or other materials in the Student's records to demonstrate that the District knew or should have known that the Student's disabilities contributed to or resulted in the behavior that led to the suspension. (Ex. l, Ex. 2).

District's Position

In the District's response, dated April 6, 2018, the District denied the Parents' allegations, characterizations and inferences from the complaint notices and affirmatively alleged that"... the student made verbal statements and/or- which referred to recent school shootings and also made statements which were interpreted as inquiries of where to which in conjunction with the earlier references, constitutes alll to the health and safety of students and staff in the [District] Junior/Senior High and resulted in a disruption to the normal operations of the school..." Further, that on March 7, the Parents requested to adjourn the Superintendent's hearing and as a condition of the adjournment request, it was agreed the Student would remain in the out-of-school placement with tutoring until the hearing was completed and the decision issued, or the matter was otherwise settled. They also affirmatively alleged that "during the manifestation determination meeting, the CSE considered all relevant diagnoses, as well as the Student's performance socially, behaviorally, and academically in addition to the contents of his JEP and input from committee members including parents." The District denied that the Student's IEP was not implemented, denied that the District was not aware of the Student's disabilities, and/or the conduct was a manifestation of his disabilities. and denied that the Student would be unable to graduate ifhe remains in the out of school placement (Ex. 3).

Legal Background

Generally, the central purpose of the IDEA is to ensure that students with disabilities have available to them a Free Appropriate Public Education (FAPE) (Frank G. v. Bd. of Educ., 459 F.3d 356, 363 [2d Cir. 2006]; see Schaffer v. Weast, 126 S. Ct. 528, 53 l [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; 20 U.S.C. § 1400[d][1][A]). 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. § 140 l [9][0]; see 20 U .S.C. § 1414). A F APE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA and (b) the lEP 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, 207). "The JEP is the central mechanism by which public schools ensure that their disabled students receive a free appropriate public education" (Polera v. Bd. of Educ., 288 F.3d 478,482 [2d Cir. 2002]).

Specific to the current case, IDEA (20 U.S.C. §§ 1400-1482; 34 C.F.R. §§ 300.530 300.537) and state law (NY Educ. Law § 3214(3 )(g); 8 NYC Part 20 l) set forth the procedures school officials must follow when seeking a disciplinary change in placement for a student with a disability who violates the code of conduct. When considering a disciplinary change in placement for a student, the district must conduct a Manifestation Determination Review (MDR) that analyzes pertinent information from the studenf s file, including the student's IEP, any teacher observations, and any relevant information provided by the parents. The purpose of this review is to l) dctennine whether the conduct was caused by or had a direct and substantial relationship to the student's disability and to 2) identify whether the conduct was a direct result of the school district's failure to implement the IEP.

Additionally, IDEA requires school districts to take a longitudinal look at the student's behaviors. The Conferees intended that •jfa change in placement is proposed, the manifestation determination will analyze the child's behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability."' (7 l Fed. Reg. 46720)

If the MDR team determines that the student's behavior was not a manifestation of the student's disability, the disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner. However, if the MDR team determines that the student's behavior was a manifestation of the student's disability, the student must be returned to the placement from which the student was suspended except under special circumstances. The school district is also required to conduct an Functional Behavior Assessment and implement a Behavior Intervention Plan (BIP); or if the student already has a BIP, the school district must review the BIP and modify it as necessary to address the behavior (20 U.S.C. § 1415(k)(1)(F)(iii); Educ. Law§ 32 l 4(3)(g)(3)(viii); 34 C.F.R. § 300.530(f)(2); 20 U.S.C. § 14 l 5(k)(1 )(F)(i)-(ii); 34 C.F .R. § 300.530(f)(l )(i)-(ii); 8 NYCRR 201.3; 8 NYCRR 201 .4(d)(2)(ii). If the MORE manifestation team determines that the student's conduct was the result of the school district's failure to implement the student's IEP, the district must take immediate steps to correct the deficiencies in the implementation of the student's IEP (20 U.S.C. § 14 l5(k)(3)(E)(i)(IJ); 34 C.F.R. § 300.530(e)(I )(ii), (3); 8 NYCRR 20l .4(e)).

Finally, upon a finding that the conduct at issue was a manifestation of the disability, all reference to the suspension should be expunged from the Student's record. Expungement is supported by the State Review Officer's Decision, Application ofa Child with a Disability Appeal No. 02-064. Tn that decision, the SRO determined it had jurisdiction to expunge the student's record because the request for expungement was premised on asserted violations of the JDEA and the SRO has jurisdiction to review such violations.

Behavior Under Review

At the MORE the Assistant Principal read his statement that "It was reported by several students and staffthat [the Student] was making statements abou . He also inquired about where to ge "(Ex. 7, P 16).

Student History

At the time the complaint notice was filed, the Student was - years old, in the twelfth grade, and expected to graduate with a Regents Diploma this school year (Ex. 6). He first came to the District in January• . (T. 43) He was classified as a student with a disability. Following discipline at school, a Behavior Intervention Plan (BIP) was created in October 2015 which targeted among other things: "Talking about inappropriate topics" (Ex. 14. P. 6). This BIP included a Teacher's Assistant I: I to "provide reminders, redirection and positively reinforce compliant behaviors." Over time, based primarily upon excellent progress at school (T. 54-56 & 280-281 ), this support was removed from the BlP in the Summer of2017. By December 15, 2017, with no reported disciplinary problems for the Student, the CSE met again and removed the BIP from the IEP (Ex. 13). The Parents advocated for some accommodations in that IEP. In fact, the IEP does contain descriptions of conduct and accommodations for the Student that carry forward the concerns relative to "Talking about inappropriate topics."

The Outcome of the MDR

In the Prior Written Notice, dated April 9, 2018 (Ex. 6), it is reported that the conduct which resulted in discipline was not a manifestation of [the Student's] disability The CSE considered the reports and evaluations identified in the reports and evaluations section of the IEP, including a neuropsychological evaluation report from July 2014; an FBA and BIP from October 2015, updated in April 2016, and discontinued in December 2017; the Student's attendance reports; discipline reports; report card; teacher reports; input and concerns from the Parents, Student, - L E A Representative, and committee members. (Ex. 6). The District sent the Parents Prior Written Notice for proposed Reevaluation/Additional Assessment and request for consent, dated Apri I 9, 2018 proposing to conduct an FBA (Ex. 6).

TheMDR

Highlights of the MORE include the surprisingly late review of the operative conduct. Past the half­ way mark of the meeting, the Assistant Principal read the statement of charged conduct: "Jt was g reported by several students and staff that [the Student] was making statements a b o u t -

He also inquired about where to get ' (Ex. 7, P 16). The reading was perfunctory and there was no context for the statements. Depending on the context, these remarks could be as benign as a classroom discussion (The Social Studies Teacher was called to testify for the District. She stated that her classes discuss sensitive topics in current events including shootings and human rights violations, and that the Student has always engaged in discussion in a ··very appropriate" way, and his interactions with other students were "completely appropriate" (T. P. 166)), or, as in this situation, the remarks could be the catalyst for a community uproar. (Apparently, at the MDR everyone made certain assumptions about the relevant conduct because even before the operative conduct was identified, the Director of Special Education (MORE chair) announced: "I'm going to have to put out to the committee that the conduct in question was not caused by his disability at this point." (Ex. 7, P. 12 - 13))

The Director of Special Education testified that during the MDR, the staff discussed how well the Student had been doing academically, behaviorally, and socially and reviewed the IEP (T. P. 66 - 69). She described the tone of the meeting as "uncomfortable" and that the Parents were "agitated" (T. P. 72). ln testimony it was revealed by the Director that "We were unable to reach a consensus so I made the final decision." (T. P. 72). When asked if she considered the social development section of the JEP, she said, "It was brought up and discussed" (T. P. 123) and, "We considered everything that was in the IEP." (T. P. 124).

The balance of the MDR was mired down with questions of medical diagnoses vs. disability classification, re-evaluations and the like. Despite the bickering and controversy, the Parents did address characteristics of the Student's disability and pointed out that in the management needs section of the IEP, "inappropriate topics of discussion" was reflected in a past BIP. The School Psychologist referenced the cause and effect ofbehavior under social development on the IEP (Ex. 7, P. 7). She asked if the Student knew if what he was saying was inappropriate and the Student said, "no". (Ex. 7, P. 11)

Earlier at the MDR, The Resource Room Teacher described the Student's and her own ability to redirect him. (Ex. 7 P. 9 lines 1-3 & 8-l l) As a side note, the Resource Room Teacher testified at greater length at the hearing. (See pp. 204-205 and 215-216) Her testimony was consistent, but her conclusions were more direct at the hearing. In review of the transcripts and the audio recording I believe that this subsequent, expanded testimony was fostered by the formality of the hearing and that the reticence at the MDR was a function of the uncomfortable exigencies of the strained milieu of the MDR. "It was almost like being able to flag down a speeding train." (T.P. 215)

The Student's Case Manager, from his home district, said to the Student at the meeting " ... You know, when we took the 1:I away, that didn't make you like - you know - a typical student. You still had some quirks about you that we need to be aware of. Such as talking about inappropriate topics sometimes." (Ex. 7, P. 12). She added that the target behavior on the 2015 FBA was talking abou and seeking peer approval, "which are all really symptomatic of what happened," and that there has not been a reevaluation to change any ofit(Ex. 7, P.15 lines 11-24).

At one point the father equipped " ... his disability never went away. You changed the paperwork, [The Student] remained." (Ex. 7 p.15 line 21) Nevertheless, ultimately, The Director of Special Education stated that she would let the superintendent know that they did not find a manifestation of the Student's disability. (Ex. 7, P. 17).

IEP Supports

According to the Director of Special Education, at the time of the manifestation determination meeting, the Student was receiving the following supports: daily resource room, program modifications and accommodations, and testing accommodations. (T. P. 64).

The Classification

The Director of Special Education testified that the latest classification of the Student was

(T. P. 96 - 97). She said, "so when we look at a student who islllllllllll - w e follow the New York State regulation of the description of the disability and we look at how that disability impacts the student across educational settings." (T. P. 105). She said they used ."because other evaluations we have are over for 4--5 years old and we haven't been able to update them, the diagnosis of was completed with a single sheet of a questionnaire.... So we had gone with the classification that was on the TEP". (T. P. I 06 - 107).

The Social Studies Teacher said the Student did very well academically and she described his behavior in her class as "great". (T.P. 167). She said the Student gets along well with others in the class and he is very engaged in the class (T. P. 169). She testified that based on her experience with the Student and her observations, she did not think the Student's behavior was a manifestation of his disability (T. P. 174 - 175). When asked if anyone at the meeting had any concerns with the Student regarding his behavior or his talking about inappropriate topics, she said "no" (T. P. 177).

The Special Education Teacher (Resource Room Teacher) testified that she taught the Student English in 10th and I 1th grades, currently teaches him in resource room, and is his case manager at the school (T. P. 206, 209). She participated at the manifestation determination meeting, which she remembered lasted about 45 minutes (T. P. 203, 204, 210). She did not feel that she was fully able to participate.

She was able to share how the Student was doing in terms of his grades in his classes and his participation in her resource room class. (T. P. 218 - 219). She did not recall any questions about the Student having social issues with peers during the meeting (T. P. 224). She did not recall anyone asking the participants at the meeting if the Student's behavior was a manifestation of his disability or if they thought the IEP was implemented correctly (T. P. 229). When asked if the Student had made comments to her in class regarding she said "'yes". (T. P. 225) The Student was not suspended because of this (T.P. 226). She once had to redirect the Student in resource room because of a discussion he was having with another student abou (T. P. 229- 231).

The Student's Case Manager from his home district in-estified that she has worked with the Student for three years and has attended his IEP meetings (T. P. 249 - 25 l). She said that the - d i s t r i c t agreed not to reevaluate the Student because they had additional evaluations since his evaluation in 2014 (T. P. 251 - 252). She said that the Student's two disability areas a r e - because o and because o and (T. P. 252). She said that during the manifostation determination meeting, she brought up concerns about how the IEP is implemented, and not followed and about accommodations, and that the Student's was not discussed. (T.P. 258-261) She said that" ... it wasn't individually asked of the participants if they agreed or disagreed with the two questions that we had to answer." (T.P. 262) She understood that if consensus was not reached, the Chair would make the decision (T. P. 278). She recalled that everyone at the meeting discussed the Student's progress and that he was not having behavior problems (T. P. 279 - 280)

Analysis

For purposes of the MDR, the IEP dated March 15, 2018 was utilized for the 2017-2018 school year. (Ex. 6) (The parties agreed to copy the substantive data from the previous December 2017 IEP). On this IEP, the Student had a classification o nd it was noted that he was diagnosed with

I find that pat1s of the IEP specifically relate to the issues involved in the StudenCs behavior in this case. Under Social Development. it was noted that "[The Student] does have moments of frustration where he will repeat an action or he will become very agitated and will express himself in an inappropriate manner." Under social development needs, "[The Student] needs to understand cause and effect and how his behavior impacts him and others. [The Student] needs to make good choices and understand the significance of his behavior on others. [The Student] would benefit from outside counseling." (Ex. 6). Under management needs, it is noted ''[f [the Student] should engage in inappropriate topics of discussion, he should be gently redirected and refocused.'' Under the effects of student needs, ""[the Student's] disabilities have led to difficulty interacting with others as well as misunderstanding of social cues as well as literal meanings." (Ex. 6).

After a thorough review of this record, I am lefl with the impression that the MORE team was swayed by the results of the Student's conduct, rather than the conduct itself. I find that the District erred in taking the nairnw view of the Student's disability and failed to give weight to the longstanding characteristics ofthis Student (Ex. 7, Pl 4, Line 4). In summary, I find that the subject conduct had a direct and substantial relationship to the Student's disability.

TI1is finding runs counter to the District's findings in the MORE. As outlined above, the Student has an established history not only with inappropriate use of language. The District, with the information available to them, should have more fully explored the connection between this ongoing behavior and the Studenfs documented disability and then, in turn, recognized the connection between the charged conduct and the Student's documented disability.

Additional Relief

In an effort to more fully resolve this case, l make several ancillary orders. Evaluations, and

IAES.

Interim Alternate Educational Setting

Here I order an IAES based upon the alleged seriousness of the Student's conduct. Simply finding that his conduct is a manifestation of his disability is not an endorsement of the behavior at issue. To the contrary, if in fact it was the conduct of the Student that created t h e - a t school and in the community, the conduct is no longer protected free speech, but it is simply dangerous. Until further evaluative data is collected and the threat assessment is conducted, the Student shall receive instruction at home or another location mutually agreed to by the Parents and District in an amount of two (2) hours per day. I direct the Student to remain away from the school unless otherwise agreed between Parents and District authorities. I invoke 8 NYCRR 20l.(8)(d) to support this order. "A determination that the student's behavior is a manifestation of the student's disability shall not preclude an impartial hearing officer from ordering a change in placement to an !AES pursuant to this section."

Evaluations

Regarding evaluations, because of the unresolved issues of graduation, the pending Superintendent's hearing, and J recommend the Parties communicate in an effort to facilitate the timely and appropriate execution of these evaluations. The evaluations should be conducted by evaluators who are not school employees but are available at reasonable contract rates in conformity with District policy. The Parents may choose the evaluators.

Pursuant to Part 200.S(g)(2), I order an updated threat assessment, a functional behavior assessment, with a BlP if needed, to be performed by a board certified behavior analyst, and a neuropsychological evaluation to identify current levels of educational performance and also to identify any diagnosis of I make this order first to inform the record but also because the parties seemingly agree that these evaluations should be made but are unable to come to terms as to how this should be accomplished.

-Assessment The Director of Special Education stated that the District had asked the Parents several times to have the Student reevaluated and for updated psychiatric testing, but the Parents never gave their consent (T. P. 73). She said that the District requested a psychiatric evaluation because of the Student's- - - - or - and•••• concerns (T. P. 74). She stated that after the manifestation determination meeting, the District sent the Parents prior written notice and consent for an FBA and sent them a copy of the finished JEP (T. P. 75). She said that she has not received the consent form back yet (T. P. 75). When asked about specific records including the - assessment (Ex. 17), the previous threat assessment (Ex. 20), and the psychiatric hospital report (Ex. 18), she said they were in the Student's records (T. P. 100 - IO l ). Throughout the proceeding the Father requested an updated . . . assessment (Ex.7 P.16 and e-mail Ex. 6A). For the foregoing reasons I order an updated-assessment.

FBA/BIP

The Case Manager remembered that at the CSE meeting, the Parents were concerned about eliminating the BIP but that some parts of the plan would become accommodations in the IEP (T. P. 288). The Student's father testified that he was concerned about eliminating the BIP and did not feel that he was listened to during the meeting (T. P. 298 - 299). He said he thought that the BIP gave the Student protection and he was making progress because of his supports (T. P. 300). He said he first stated his objections at the September CSE meeting (T. P. 300-303). I order a functional behavior assessment, with a BIP ifneeded, to be performed by a board certified behavior analyst.

Neuropsychological Evaluation

The Resource Room teacher also spoke relative to evaluations. At the CSE meeting to remove the BIP, she said they discussed doing another reevaluation, changing the BJP, but decided not to, as the Student was doing well with redirection (T. P. 228). When asked if the Student had characteristics o f - she said yes, and when asked if she believed his -diagnosis was related to the behavior that led to the manifestation determination, she said "yes" (T. P. 233). I order a neuropsychological evaluation to identify current levels of educational performance and also to identify any diagnosis of Part 200.5(g)(2) states that "lfa hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense." The New York SRO has held that IHOs are vested with the authority to direct that a student be evaluated at district expense. SRO Appeal 12-033~ 8 NYCRR 200.5(g)(2); (i)(3)(viii). In directing a district to fund IEEs for a student, the SRO noted, "the regulation 'allows a hearing officer to order an IEE as part of a larger process,' (Lyons v. Lower Merion Sch, Dist., 56 IDELR 169 [E.D. Pa. Dec, 14, 2010}). SRO Appeal l 2-033,

While this may be a final order in this case, given the procedural posture of the parties, i.e., pending superintendent's hearing, the information contemplated will doubtlessly assist in future proceedings.

It is hereby ordered:

The Manifestation Determination Review (MORE) shall be reversed and found to be a positive manifestation.

The Student's record shall be expunged of this charge.

The Student should be placed in an Interim Alternative Educational Setting that includes two hours of home tutoring per day until such time as the following evaluations are completed and the CSE has time to reconvene and compile an appropriate plan or until the forty-five day time limit expires

(unless extended) whichever occurs first.

Evaluations as follow:

o -Assessment update

o BCBA-conducted FBA and BIP if indicated

o Neuropsychological Evaluation with emphasis on

- t e s t i n g and diagnosis

o Direction for appointment of a Guardian Ad L · proceedings concerning this Studenft

Dated: April 30, 2018 ~

-· -#--J'-IJ,q::;....-,,,,K.~~:.._;.

PLEASE TAKE NOTICE

The parent and/or the District has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.S(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education law, and the Individuals with Disabilities Education Act.

Directions and forms can be found on the Office of State Review website: !,ttp://www.sro.nysed.gov/RevisedRegulationsOverview. html