New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 571941 - NYC: 225788

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

STUDENT, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 225788 THE NEW YORK CITY Dustin Johnson, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

The undersigned Impartial Hearing Officer is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant me the authority to adjudicate this hearing. Furthermore, I am not currently, nor have I ever been, an employee of the NYC Department of Education. Finally, I do not have any personal or professional interest or bias that conflicts with my objectivity to hear this matter.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of the minor student (“Student” or “Child”). On April 11, 2022, Petitioner, appearing Pro Se, filed a Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) (see IHO Exhibit 1).

On April 22, 2022, the undersigned IHO was appointed to preside over this case. On April 26, 2022, a Prehearing Conference was held (See IHO Exhibit 2). On May 13, 2022, an expedited impartial hearing on the merits of the DPC was held and completed the same day.

By DPC notice dated April 11, 2022, the Parent alleged, generally, that the Student was suspended following a mental health episode, the District failed to provide any information on the suspension or school instruction during the suspension, the Student has been refused counseling services despite her IEP indicating the Student has Emotional Disturbances, and that the IEP does not provide appropriate resources (see IHO Exhibit 1). The Parent requested in the DPC that the District be held responsible for the Student’s IEP goals, to provide the Student with an alternative educational environment, to provide the Student with outside counseling, and provide resources to assist the Student to graduate on time (id.).

• • Scope of the Hearing At the April 26, 2022, Prehearing Conference, it was agreed that the case was properly an expedited case due to some of the issues alleged. Furthermore, given that the Parent filed the DPC Pro Se and because not all issues were clearly articulated, substantial discussions were had at the Prehearing Conference to identify the specific issues to be determined and the relief requested, including issues not clearly articulated or contained within the DPC.

It was agreed upon by both of the parties at the Prehearing Conference that the issues to be determined at a hearing on the merits were: that the DOE failed to hold a manifestation determination review and improperly changed the Student’s placement as a result of the Student’s suspension, denied the Student a FAPE, failed to provide the Student with the required services from the most recent IEP including counseling services, failed to provide a Behavioral Intervention Plan (“BIP”), failed to provide resources such as a case manager to work with the Student, and failed to provide transition services. The Parent also disagreed with the Student’s neuropsychological evaluation and was requesting that a new Independent Educational Evaluation (“IEE”) be conducted. Furthermore, the Parent requested to withdraw the allegations from the DPC which are contained on the last two sentences of the last paragraph on page two of the DPC, specifically the portion regarding the District mediating and investigating recent and prior suspensions and to investigate the District regarding the child’s IEP plan, past assessment, tests and evaluations. These allegations were stricken from the complaint and not addressed at the DPH or in this FOFD.

Petitioner also sought the following remedies: A finding that the District’s suspension of the Student was improper, a finding of a denial of FAPE, the District to provide the Student with counseling and transition services, the District to pay for outside counseling services if the District cannot provide these services to the Student in school, and for a new neuropsychological IEE to be conducted at District expense.

The agreement on these issues and requested relief was memorialized in the Prehearing Conference Summary and Order (see IHO Exhibit 2). There was no objection from either party regarding these issues and requested relief, which expanded the scope of the issues and relief requested in the unamended DPC. Furthermore, these issues and relief were clarified again at the beginning of the May 13, 2022, expedited hearing, and there was consent by all parties to the scope of the review.

There was also one additional issue agreed upon by all parties at the beginning of the May 13, 2022, expedited hearing. A Manifestation Determination Review (“MDR”) was completed post-filing of the DPC and before the May 13, 2022, hearing. The Parent disagreed with the outcome of the MDR and sought to challenge the outcome of the MDR at the May 13, 2022, hearing. The District indicated that they were prepared to defend their MDR at the May 13, 2022, hearing. The issue of whether or not the outcome of the MDR was correct was included as a ripe issue for review and determination at the May 13, 2022, hearing upon the agreement of all parties.

Finally, it was agreed by all parties that the May 13, 2022, hearing would encompass both the expedited issues and non-expedited issues contained within the DPC, and that there would be only one hearing and only one decision for all disputed issues contained in case numbers 9225788 and 225788.

IV. Findings of Fact The Student has a disability classification of Emotional Disturbance (see exhibit DOE-1). The Student is easily frustrated and can struggle to engage positively with adults, has difficulties with anger control, emotional self-control, behavioral self-control, and social communication skills (id.). The Student also takes daily medication to manage her mental health (id.).

After an incident in REDACTED, which led to the Student being suspended REDACTED, the Student received a social history update (DOE-7). The Parent indicated that the Student’s behavior at home can be challenging and the Parent has had to REDACTED the Student losing control and becoming aggressive and violent (id.). Subsequent to the REDACTED incident, the district held an MDR and the outcome was that the REDACTED behavior/incident was a manifestation of the Student’s disability (id.). It was concluded that an updated IEP would be needed (id.). It was also noted that the Student receives outside therapy, but that the Parent wants the school to provide counseling to address the Student’s social-emotional and behavioral needs (id.)

On August 9, 2021, a psychoeducational evaluation was conducted and a report was generated on August 12, 2021 (DOE-8). The report notes that the Student was initially referred to the Committee on Special Education in 2011 due to significant behavioral and academic concerns (id.). At that time, according to her records, the Student was disruptive, non-compliant, and physically aggressive with adults and peers (id.). It was noted that the Student presently has an IEP classification of Emotional Disturbance and is receiving instruction in the Integrated Co-Teaching program with counseling as related services (id.). It was determined that the Student needs support to develop her coping, communication, and problem-solving skills and that she requires counseling service, both individual and in a small group (id.). Given the Student’s history of behavioral challenges and health concerns, it was recommended that her school consider developing and implementing a Behavior Intervention/Support Plan early in the 2021-2022 school year (id., see also DOE-1, DOE-5).

Following the completion of the social history update and psychoeducational evaluation, an IEP dated August 17, 2021, was completed (DOE-2). Much of the substance of the August 12, 2021, psychoeducational evaluation was copied into the August 17, 2021, IEP (compare DOE-2 generally with DOE-8). The August 17, 2021, IEP recommended the Student receive Integrated Co-Teaching (“ICT”) Services in English, Math, Social Studies, Sciences, and Math, as well as related services of individual and group counseling one time per week (DOE-2).

At some point after the creation of the August 17, 2021, IEP, the Parent requested to reconvene the CSE and a subsequent IEP meeting was held on October 8, 2021 (DOE-11). An updated IEP resulted from that meeting (DOE-1). According to a District witness who attended the October 8, 2021, IEP meeting, a clerical error on the new IEP failed to update the date of the October 8, 2021, IEP, which erroneously still reflected August 17, 2021 (DOE-11). The October 8, 2021, IEP recommended ICT services but removed counseling services at the request of the Parent (id.). The District witness credibly testified that at the October 8, 2021, IEP meeting, the Parent indicated that she believed that because the District’s counseling services were to be provided outside of the classroom as a “pull-out” service, it would be detrimental to the Student (id.). The Parent also indicated that the Student was provided with counseling services outside of school and that providing the Student with counseling services in school would be redundant and unnecessary (id.). As such, counseling services were removed from the Student’s IEP based on the Parent’s request and information she provided (id.). The October 8, 2021, IEP recommended ICT services in Math only, and removed the individual and group counseling related services recommendation (compare DOE-1-14 with DOE-2-15-16).

On October 13, 2021, the Parent was sent a copy of the October 8, 2021, IEP (see P-A). On October 21, 2021, the Parent responded to the District indicating several issues with the IEP and wanting to follow-up regarding the IEP (id.). In her October 21, 2021, email, the parent did not, however, indicate any dispute with counseling services being removed from the IEP (id.).

On December 16, 2021, the parent sent a separate email to another member of the Student’s school (P-B). In that email, the parent passingly referenced the fact that the Student was not receiving counseling services anymore, but the substance of the communication was related to the Student’s application process for applying to college and seeking assistance with that process from a guidance counselor (id.). The December 16, 2021, email cannot be read as indicating a request for the Student to begin receiving counseling services for the Student’s mental health issues.

The District, in various emails throughout 2022 from different individuals, including an Assistant Principal and College Counselor, sent numerous emails to the Student to check in with her and to offer her support regarding transitioning to college (see generally DOE-12).

REDACTED

A Manifestation Determination Review (“MDR”) for both the REDACTED incident was conducted on May 5, 2022 (see DOE-11, DOE-13, DOE-14, DOE-17, DOE-18). It was determined that the Student’s behavior during the REDACTED, incident was a manifestation of her disability (id.). But that the Student’s behavior on the REDACTED, incident was not a manifestation of her disability (id.). As justification for the disparate outcomes, the District indicated that the Parent and Student were provided information that the Student could be suspended and so being provided suspension paperwork on REDACTED had no relationship to her deficits as described in her IEP (id.).

V. Applicable Standards

• • FAPE

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO'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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). 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 Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a Student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

• • Discipline The IDEA also includes specific protections with regard to the process by which school officials may seek to effectuate a disciplinary change in placement of a student with a disability who violates a code of student conduct (see 20 U.S.C. § 1415[k]; Educ. Law §§ 3214[3][g]; 4404[1]; 34 CFR 300.530-300.537; 8 NYCRR Part 201). State regulations provide that a disciplinary change in placement means a "suspension or removal from a student's current educational placement that is either: (1) for more than 10 consecutive school days; or (2) for a period of 10 consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year" (8 NYCRR 201.2[e]; see 20 U.S.C. § 1415[k][1][B]; 34 CFR 300.530[b][2], [c]).

If a district is considering a disciplinary change in placement for a student with a disability, the district must conduct an MDR "within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct" (20 U.S.C. § 1415[k][1][E][i]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[a]). The participants in an MDR must include a district representative, the parents, and the "relevant members" of the CSE, as determined by the parent and the district (20 U.S.C. § 1415[k][1][E][i]; Educ. Law § 3214[3][g][2][ii]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[b]). The manifestation team must "review 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" (8 NYCRR 201.4[c]; see 20 U.S.C. § 1415[k][1][E]; 34 CFR 300.530[e][1]).

The IDEA and Federal and State regulations provide that any student removed from his or her current placement "shall... receive, as appropriate, a[n] [FBA] [and] behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur" (20 U.S.C. § 1415[k][1][D][ii]; 34 CFR 300.530[d][1][ii]; 8 NYCRR 201.2[k][2]). Additionally, if the result of the MDR is a determination that the student's behavior was a manifestation of his or her disability, the CSE is required to conduct a functional behavioral assessment (FBA) and implement a BIP; or if the student already has a BIP, review the BIP and modify it as necessary to address the behavior (20 U.S.C. § 1415[k][1][F][i]-[ii]; 34 CFR 300.530[f][1][i]-[ii]; 8 NYCRR 201.3). Except under "special circumstances" as defined in the IDEA and State and Federal regulations, the district must also return the Student to the placement from which he or she was removed or suspended (20 U.S.C. § 1415[k][1][F][iii]; Educ. Law § 3214[3][g][3][viii]; 34 CFR 300.530[f][2]; 8 NYCRR 201.4[d][2][ii]). A district and parents may agree to a change in the student's placement (20 U.S.C. § 1415[k][1][F][iii], [G]; 34 CFR 300.530[f][2], [g]; 8 NYCRR 201.7[e], 201.8[a], 201.9[c][3]). If the MDR team determines that the student's conduct was the direct 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 (34 CFR 300.530[e][1][ii], [3]; 8 NYCRR 201.4[e]).

If the parent of a student with a disability disagrees with a school district's decision regarding the student's placement, or a determination of the manifestation team, the parent may request an expedited impartial hearing (20 U.S.C. § 1415[k][3][A]; 34 CFR 300.532[c]; 8 NYCRR 201.11[a][3]-[4]; see Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 201-02 [2d Cir. 2007]).

VI. Discussion

A. Discipline The expedited dispute in this matter is whether or not the Student’s conduct was a manifestation of her disability justifying the Student’s suspension. For the reasons discussed below, I find that the Student’s conduct during the REDACTED was caused by or had a direct and substantial relationship to the Student's disability. I also find that, despite the conduct being a manifestation of the Student’s disability, there were special circumstances surrounding the incident which obviate the District’s obligation to return the Student to the placement from which she was removed.

As discussed above, the hearing record contains ample testimony and evidence establishing the severe challenges this Student faces with regards to her behavior resulting from her mental health issues that have led to her disability classification as a student with an Emotional Disturbance going as far back as 2010 (see generally DOE-1, DOE-2, DOE-7, DOE-8, DOE-17). The evidence and expert opinions establish that the Student is easily frustrated and can struggle to engage positively with adults, has difficulties with anger control, emotional self-control, behavioral self-control, and social communication skills, and takes daily medication to manage her mental health (DOE-1). The evidence also shows that the Student’s behavior at home can be challenging and that the Parent has REDACTED (DOE-7). The Student’s psychoeducational evaluation reflects upon the Student’s history of significant behavioral concerns where the Student was disruptive, non-compliant, and physically aggressive with adults and peers (DOE-8).

The Student’s challenging circumstances and propensity for violence were well known to the District, especially considering that the Student received a recent social history update and reevaluation after an incident in June 2021 where the Student assaulted a teacher which led to the Student being suspended and arrested (DOE-7). After that June 2021 incident, the district held an MDR and the outcome was that the behavior/incident was a manifestation of the Student’s disability (id.). When the Student had a REDACTED, the MDR team determined, as they did in June 2021, that the Student’s conduct was a manifestation of her emotional disturbance, citing for support the documented suspension history beginning in 2010 of physically aggressive behavior towards other students and adults, and the Student’s trouble processing stressors (DOE-17).

However, reviewing the incident from April 11, 2022, the same MDR team from the same meeting on the same day as the MDR determination for the REDACTED, incident determined that the Student’s REDACTED, was not a manifestation of her emotional disturbance (DOE-18). For support of this disparate outcome, the MDR team again indicated that the Student has trouble processing stressors, yet found that the Parent and Student should have been on notice of the possibility of a suspension being issued and therefore they presumably should not have reacted negatively when such a possibility became a reality (id.). The school psychologist from the MDR team determined the Student’s conduct on REDACTED, was not a manifestation of the Student’s emotional disturbance disability because “the Student stated the primary triggering event was receiving a suspension letter and general indicators regarding Student's social emotional self-control directly and substantially relate to the behavior of physically striking an administrator (id.).” The Assistant Principal from the MDR team further testified that the Student’s response upon being provided the suspension paperwork has no relationship to her deficits as described in her IEP and in his professional experience he believed that the Student knew what she was doing when she acted on REDACTED, and that she was aware her actions were wrong given the overall context of the event, and that her conduct was not a manifestation of her disability (DOE-11).

The deficits described in the Student’s IEP and psychoeducational evaluation include being easily frustrated and struggling to engage positively with adults (DOE-1, DOE-8). The Student’s deficits also include difficulties with anger control, emotional self-control, and behavioral self-control (id.). The Student’s deficits further include losing control and becoming aggressive and violent (DOE-7). The REDACTED, incident was the third time in less than one year where the Student reacted violently and aggressively towards an adult in the school and the prior two incidents were found to be manifestations of the Student’s disability. It defies logic and strains credulity for the District to purport to excuse one triggering event REDACTED and not excuse another, arguably more severe, triggering event REDACTED For the reasons set forth above, I find that the Student’s conduct REDACTED, was a manifestation of her disability, just like the previous incidences on REDACTED. Based on that, and because the District failed to do so following the June 2021 MDR, the District is ordered to comply with applicable law as well as the District’s own policy by conducting a functional behavioral assessment (FBA) and by generating and implementing a BIP for this Student going forward.

Under normal circumstances, such a finding that the Student’s conduct was a manifestation of her disability would necessitate that the District return the child to the placement from which the child was removed (34 CFR 300.530(f)(2)). However, a special circumstance exists in the law where school personnel may remove a Student to an interim alternative educational setting for not more than 45 school days, without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function (34 CFR 300.530(g)(3)).

The law defines “serious bodily injury” as having the same meaning as 18 U.S.C. § 1365(h)(3), which states that the term means bodily injury which involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

The Eighth Circuit in United States v. Two Eagle, 318 F.3d 785, 791 (8th Cir. 2003), explained that “serious bodily injury” means “something more than slight bodily injury, but not necessarily life-threatening injury. It does not require a high probability of death. Rather, it is a bodily injury of a grave and serious nature. In assessing whether the injury meets the definition of "serious bodily injury," the jury is to apply their common understanding of that term.”

Various medical sources define a concussion as a traumatic brain injury characterized by immediate and transient alteration in brain function, including alteration of mental status or level of consciousness, that results from mechanical force or trauma, and that affects brain function, memory, judgment, reflexes, speech, balance, and muscle coordination (see generally: https://www.cdc.gov/headsup/basics/concussion_whatis.html; https://www.mayoclinic.org/diseases-conditions/concussion/symptoms-causes/syc-20355594; https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Concussion). Following a concussion, some people may suffer persisting symptoms, such as memory and concentration problems, mood swings, personality changes, headache, fatigue, dizziness, insomnia and excessive drowsiness (https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Concussion). There is also documentation of the possibility of acute and often fatal brain swelling that occurs when a second concussion is sustained before complete recovery from a previous concussion (id.).

Based on the above, I find that a concussion meets the legal definition of a serious bodily injury.

Here, the REDACTED. Therefore, I find that the District is within its legal authority to remove the Student to an interim alternative educational setting for not more than 45 school days without regard to whether the Student’s behavior was a manifestation of the Student’s disability.

B. FAPE

• • Behavioral Intervention Plan (“BIP”)

The Parent argues that the District’s failure to develop a BIP denied the Student a FAPE. The District's failure to develop a BIP in conformity with State regulations does not, in and of itself, automatically render the IEP deficient, as the IEP must be closely examined to determine whether it otherwise addressed the Student's interfering behaviors (see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 80 [2d Cir. 2014]; F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 6-7 [2d Cir. Jan. 8, 2014]; M.W. v. New York City Dep't of Educ., 725 F.3d 131, 139-41 [2d Cir. 2013]; R.E., 694 F.3d at 190).

The record does not contain any testimony or evidence that the District developed a BIP for the Student at any time contemporaneous with or after the June 2021 MDR, in contravention of the requirements of the IDEA and State and federal regulations, as well as the District’s own policy (20 U.S.C. § 1415[k][1][F][i]-[ii]; 34 CFR 300.530[f][1][i]-[ii]; 8 NYCRR 201.3). Accordingly, it is only necessary to consider whether, in the present circumstances, this "serious procedural violation" (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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; R.E., 694 F.3d at 190; see L.O., 822 F.3d at 113; see also Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 551 [E.D. Va. 2008]; Farrin v. Maine Sch. Admin. Dist. No. 59, 165 F. Supp. 2d 37, 51 [D. Me. 2001] [holding that the delay in conducting an MDR meeting under the circumstances did not result in harm]).

This determination would generally be accomplished by reviewing the Student's IEP to determine whether it otherwise addressed the Student's behaviors (see R.E., 694 F.3d at 190). Here, following the June 2021 MDR, the Student was referred for a psychoeducational evaluation, had a social history update, and a new IEP was generated, all as a result of the incident in June 2021 where the Student assaulted a teacher which led to the Student being suspended and arrested (see DOE-2, DOE-7, DOE-8). The August 17, 2021, IEP, addressed the Student’s emotional disturbance and history of aggressive and violent conduct (DOE-2). The August 17, 2021, IEP recommended individual and group counselling services and a coordinated set of transition activities for the Student to work on building coping skills in counseling (id.). While the August 17, 2021, IEP, the handwritten notes from the August 17, 2021, IEP meeting, as well as the psychoeducational evaluation all recommended that due to the Student’s behaviors the school should consider conducting an FBA/BIP, it is unclear why the District failed to conduct an FBA or develop a BIP. Nevertheless, considering that the efforts enacted by the District following the June 2021 incident otherwise addressed the Student's interfering behaviors, did not impede the Student’s right to a FAPE, did not significantly impede the Parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, and did not cause a deprivation of educational benefits to the Student, I do not find that the District’s failure to develop a BIP resulted in the Student being denied a FAPE.

• • Modifying IEP and Transition Services The Parent next argues that the District’s modification of the IEP to remove counseling services resulted in the Student being denied a FAPE. The District’s position is that the modification occurred as a result of the Parent specifically requesting that counseling services be removed.

The District’s witness, an Assistant Principal who was a part of the CSE team that developed the October 8, 2021, IEP, credibly testified that at the October 8, 2021, IEP meeting, the Parent indicated that she believed that because the counseling services were to be provided outside of the classroom as a “pull-out” service, it would be detrimental to the Student (DOE-11). The Parent also indicated that the Student was provided with counseling services outside of school and that providing the Student with counseling services in school would be redundant and unnecessary (id.). As such, counseling services were removed from the Student’s IEP based on the Parent’s request and information she provided (id.). The resulting October 8, 2021, IEP recommended ICT services in Math only, and removed the individual and group counseling related services recommendation (compare DOE-1-14 with DOE-2-15-16). The Assistant Principal plausibly and consistently explained why the October 8, 2021, IEP was modified at the request of the Parent and was credible, direct, and forthcoming in his responses.

An additional witness from the District, the Student’s Case Manager, who was also a part of the CSE team that developed the October 8, 2021, IEP, likewise credibly testified that the Parent indicated that counseling in school was unhelpful and redundant because the Student received counselling services outside of class. The Case Manager testified that the Parent agreed that the counseling services should be removed from the Student’s IEP. The Case Manager also credibly testified to recalling conversations he had with the Parent where he continued to offer support and assistance to the family and made the family aware of counseling support that was available to the Student. The Case Manager further testified to several follow-up conversations and meetings with the Parent to continue to discuss academic supports for the Student. Finally, the District, in various emails throughout 2022 from different individuals, including the Assistant Principal and College Counselor, sent numerous emails to the Student to check in and offer support regarding transitioning to college (see generally DOE-12).

By contrast, throughout her lengthy testimony, the Parent was consistently evasive when responding to questions, vague and contradictory in her responses, and wholly lacked credibility when testifying about her role in modifying the October 8, 2021, IEP, and her role in the incident on REDACTED, that led to her child being suspended. The sum and substance of the Parent’s testimony and the overall impression left was one of disingenuousness, obfuscation, and dishonesty.

Based on the above, I find that the District diligently continued to offer transition services to the Student throughout the 2021-2022 school year, modified the Student’s October 8, 2021, IEP to remove counseling services at the request of the Parent, that the Parent never objected to the removal of counseling services until the filing of the instant DPC, and such removal of counseling services did not result in the District failing to provide the Student with a FAPE.

C. Independent Educational Evaluation The Parent next disagreed with the child’s neuropsychological evaluation and requested a new Independent Educational Evaluation (“IEE”) be conducted.

The IDEA and State and federal regulations guarantee parents the right to obtain an IEE (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a Student with a disability or a Student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the Student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both Federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a Student should be evaluated before the required triennial evaluation, "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

In defense of its evaluation, the District offered testimony and evidence from the School Psychologist who conducted the Student’s evaluation. The School Psychologist testified that the Psychoeducational evaluation conducted was sufficiently comprehensive in identifying all of the Student’s special education and related service needs (DOE-10). The School Psychologist testified that the evaluation utilized a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the Student, including information provided by the Parent that may assist in determining, among other things, the contents of the Student's IEP (id.). The School Psychologist testified regarding the numerous assessments that were utilized in conducting the evaluation, and that these assessments identified the Student’s academic abilities (id.). There was testimony that the assessments of the Student’s social and emotional abilities were also accurately identified at the time of the evaluation (id.). The School Psychologist further testified that the evaluation relied on technically sound assessments which provided cognitive and behavioral information in addition to physical and developmental information (id.). The Psychologist testified that the evaluation appropriately assessed the Student in all areas related to her disability, including social and emotional status and that the evaluation is accurate (id.). Finally, the School Psychologist testified that the evaluation was recently conducted, therefore a reevaluation or independent neuropsychological evaluation would be unwarranted and would not provide any different or additional information not already known (id.).

The parent declined to cross examine the School Psychologist and offered no testimony or evidence to rebut the appropriateness of the school’s evaluation.

Based on the above, I find the districts evaluation of the Student was appropriate and thorough. Therefore, I decline to grant the parent’s request for an IEE.

VII. Conclusion

Having determined that the Student’s conduct at both REDACTED, incident were a manifestation of the Student’s disability, the District is ordered to comply with applicable law as well as the District’s own policy by conducting a FBA and generating and implementing a BIP for this Student going forward.

Additionally, as the Parent has now indicated an intent to have counseling services provided to the Student by the District, the CSE is ordered to reconvene and update the IEP to review all updated evaluations for this Student, conduct any reevaluations the District deems appropriate, review the FBA and BIP, and develop an IEP or IESP for the Student for the 2022-2023 school year in accordance with the Student's present levels of performance and special education needs.

One final note, there was testimony provided that the Student may be currently decompensating to a point where a traditional school setting may no longer be tenable, therefore, the CSE should reconvene to determine an appropriate placement for the Student in consultation with the Parent. It was also unclear from the hearing record whether or not the Student was on track to graduate in June 2022. Depending on whether or not the Student does in fact graduate, such graduation will naturally impact the District’s ongoing obligations with regards to providing a FAPE to this Student.

I have reviewed the Parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all remaining claims not discussed herein are dismissed with prejudice.

VIII. Orders

IT IS HEREBY ORDERED that the District’s MDR for the REDACTED, incident is modified to find that the Student’s misconduct is a manifestation of the Student’s disability;

IT IS FURTHER ORDERED that a special circumstance exists permitting the District to remove the Student to an interim alternative educational setting for not more than 45 school days;

IT IS FURTHER ORDERED that, within 60 calendar days from the date of this decision and only if the Student has not previously graduated, the District shall comply with applicable law as well as the District’s own policy by conducting an FBA and generating and implementing a BIP for this Student;

IT IS FURTHER ORDERED that, within 90 calendar days from the date of this decision and only if the Student has not previously graduated, the District shall reconvene the CSE and update the Student’s IEP to review all updated evaluations for this Student, conduct any reevaluations the District deems appropriate, review the FBA and BIP, determine an appropriate placement for the Student in consultation with the Parent, and develop an IEP or IESP for the Student for the 2022-2023 school year in accordance with the Student's present levels of performance, the Student’s special education needs, and the Parent’s desire to have counseling services included on the Student’s IEP.

DATED: SO ORDERED

5/25/2022 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

District

Date

Title

# of Pages

DOE-1

10/8/2021

Individualized Education Program (IEP)

21

DOE-2

8/17/2021

IEP

24

DOE-3

10/8/2021

IEP Attendance Page

1

DOE-4

10/8/2021

Notice of IEP meeting

3

DOE-5

8/17/2021

IEP Minutes

2

DOE-6

11/5/2021

Special Education Recovery Services

3

DOE-7

Undated

Social History Update

4

DOE-8

8/9/2021

Psychoeducational Evaluation

9

DOE-9

8/21/2021

Consent for Additional Assessments

1

DOE-10

5/6/2022

Affidavit

3

DOE-11

5/6/2022

Affidavit

4

DOE-12

Various

Emails

12

DOE-13

5/3/2022

MDR Report

3

DOE-14

5/3/2022

MDR Report

3

DOE-15

Various

OORS Packet

18

DOE-16

5/5/2022

Disposition of Superintendent Suspension

6

DOE-17

5/5/2022

MDR Worksheet

5

DOE-18

5/5/2022

MDR Worksheet

5

Parent

Date

Title

# of Pages

P-A

Various

Emails

2

P-B

12/16/2021

Email

1

IHO Exhibit

Date

Title

# of Pages

IHO-1

04/11/2022

Due Process Complaint

2

IHO-2

4/26/2022

Prehearing Conference Summary and Order

9