Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK NEW YORK STATE EDUCATION DEPARTMENT

In the Matter of the PARENTS and GUARDIANS of REDACTED

Petitioners, # 594290 (Lazan, IHO)

v.

REDACTED CENTRAL SCHOOL DISTRICT,

Respondent.

FINDINGS OF FACT AND DECISION

INTRODUCTION

This is a case involving a student who has been determined to be eligible for services as a student with emotional disturbance. By a due process complaint (“Complaint”) dated January 2, 2023 and received by the REDACTED Central School District(“District” or “Respondent”) on January 3, 2023, REDACTED (“Petitioners”), on behalf of their son, REDACTED (“ the Student” or “REDACTED” ) contested a proposed change in placement for the Student from the 8:1+2 REDACTED program from REDACTED BOCES (“REDACTED BOCES”) located at the REDACTED Occupational Center (“REDACTED”). Petitioners’ Complaint also contained allegations concerning an alleged failure to provide the Student with services, and the school district’s failure to communicate with Petitioners.

The parties agreed that the due process complaint will not be construed to include claims pursuant to Part 201 of the regulations. The matter proceeded to hearing on April 10, 2023. The names of witnesses and a description of the documents in evidence are referenced in the transcript. Because of the extensiveness of the testimony and issues in this case, because of witness availability, to allow the parties to write briefs, and to allow this IHO to write this decision, multiple timelines extensions were granted here. For each such extension, this IHO determined that the applications for extension were consistent with the regulatory requirements in 8 N.Y.C.R.R. Sect. 200.5(j)(5)(ii) and (iii). (IHO Exh. 1)

FACTS

The Student is a redacted-year-old who is classified as a student with an emotional disability. He is currently placed at the REDACTED BOCES REDACTED program, which provides students with an 8:1+2 classroom. The BOCES REDACTED program is a structured learning environment designed to support students with behavioral, social, emotional, and academic needs. Students have access to counselors throughout the day, as well as an on-site behavioral specialist, crisis support staff, and incentive systems. Tr. 25, 106-107. The BOCES REDACTED program staff use a Therapeutic Crisis Intervention (“TCI”) approach to behavioral support which provides coping strategies and de-escalation techniques. There are two “alternate spaces” which may be used at the REDACTED program for students who require formal space away from their class.

Despite these interventions, the Student has been involved in many improper behaviors requiring formal disciplinary consequences. Those behaviors have escalated in terms of severity and frequency from prior years. Behaviors include threats, physical aggression, and use of racial and misogynistic slurs. At times, the behavior goes on for hours, disrupting his learning and the learning of others in the program and in that building. Tr. 122.

On September 27, 2022, the Student bit a staff member, hit and kicked at staff, threw objects, eloped from the school building, almost started a fire, broke a door scanner and lock, threatened self-harm, made a “gun” gesture and placed his hand in his mouth, bit his own wrist, and announced he hated REDACTED, and the school could “burn down.” He was then evaluated by REDACTED Medical Center (“REDACTED”). REDACTED determined that the Student was not going to harm himself. His school counselor then prepared a “safety plan” for the Student to address expectations, identify warning signs, and offer coping strategies.

Thereafter, the Student’s misbehavior in school continued. As the Student accumulated days of out-of-school suspension, the CSE met for a manifestation determination review (“MDR”) on October 14, 2022. At the MDR, the school staff expressed concerns about continuing the Student in the program, and the CSE recommended exploring other program options. Following the discussion, the school district made calls and inquiries, but felt there were no appropriate school openings available at the time.

On December 21, 2022, the BOCES administration refused to allow the Student to return, demanding he be “unenrolled.” Ms. REDACTED arranged for tutoring and services for the Student.

The CSE met on January 4, 2023. The discussion focused on pendency, which is at the BOCES REDACTED program. CSE agreed to supplement the pendency program with a 1:1 aide during the day. By agreement, following that meeting on January 4, 2023, the Student continued briefly with the tutoring and counseling services until the 1:1 aide was available to start on January 9, 2023. Ms. REDACTED has received positive interest in placements for the Student from REDACTED BOCES. The program partners with a state-approved therapeutic program, the Children’s Home REDACTED, which provides the counselor to provide therapeutic support for the students.

CONCLUSIONS OF LAW

Petitioners claim that the Student should not be placed in the proposed interim setting that was discussed in meetings between the school district and petitioners in October, 2022.

1. Proposed Interim Alternative Placement.

The school district is proposing placement of the Student at an interim alternative education setting (“IAES”) while they look for a more permanent placement for the Student. However, the school district has not presented this Hearing Officer with authority suggesting that they have the power to propose interim alternative educational settings on their own. Nor has the school district presented any authority in support of the proposition that a Hearing Officer can order an IAES in a non-expedited case like this, where a parent is bringing claims pursuant to Part 200 of the New York State regulations.

Prevailing authority indicates that a school district may ask to secure an IAES for a student only if the school district files its own due process complaint. Application of a Child with a Disability, Appeal No. 19-033, at 10. Thereafter, the school district must show the current placement of the student is substantially likely to result in injury to the student or others. 8 N.Y.C.R.R. Sect. 201.7; 34 C.F.R. Sect 300.532(a-b); Letter to Huefner, 47 IDELR 228 (OSEP

2007)(noting that a district may renew an IAES request to a hearing officer for subsequent forty-five-day periods under section 300.532). The IHO then has the authority to order a temporary change in placement of the Student to an appropriate IAES for up to 45 days. I therefore agree with the parents that Respondent’s decision to put the Student in an IAES placement denied the Student a FAPE.

1. Parental Involvement.

To the extent that Petitioners are alleging that they were denied the right to participate in the Student’s placement process, the IDEA sets forth procedural safeguards that include providing parents an opportunity to “participate in meetings with respect to the identification, evaluation and educational placement of the child.” 20 U.S.C. Sect. 1415(b)(1).

Petitioners’ closing argument contends that BOCES and Respondent are keeping information from them, including regarding suspensions, behavioral incidents, safety plans that have been written for the Student, and the school district’s plans to transfer to the Student to another school. Petitioners contended that, had they been made aware of everything sooner, they could have addressed things sooner. But the school district established through the records and witness testimony that Petitioners attended and participated in every meeting where the Student’s program, placement or services were being determined. Petitioners were also notified that there was concern about the ability to continue to meet the Student’s needs in the BOCES program in early October, both through discipline notices from the program and written communication between Ms. REDACTED and the Student’s mother.

Moreover, Petitioners have not shown that any lack of notice affected the Student's substantive rights. Kruvant v. District of Columbia, 99 Fed. Appx. 232, 233 (D.C.Cir.2004)

(denying relief under IDEA because “although DCPS admits that it failed to satisfy its responsibility to assess [the student] for IDEA eligibility within 120 days of her parents' request, the [parents] have not shown that any harm resulted from that error”); C.M. v. Bd. of Educ., 128

Fed. Appx. 876, 881 (3d Cir.2005) (per curiam) (“[O]nly those procedural violations of the IDEA which result in loss of educational opportunity or seriously deprive parents of their participation rights are actionable.”); M.M. ex rel. D.M. v. Sch. Dist., 303 F.3d 523, 533–34 (4th

Cir.2002) (“If a disabled child received (or was offered) a FAPE in spite of a technical violation of the IDEA, the school district has fulfilled its statutory obligations.”); Roland M. v. Concord

Sch. Comm., 910 F.2d 983, 994 (1st Cir.1990) (en banc) (“[P]rocedural flaws do not automatically render an IEP legally defective. Before an IEP is set aside, there must be some rational basis to believe that procedural inadequacies compromised the pupil's right to an appropriate education, seriously hampered the parents' opportunity to participate in the formulation process or caused a deprivation of education benefits.” (citations omitted)); W.G. v.

Bd. of REDACTEDees, 960 F.2d 1479, 1484 (9th Cir.1992) (rejecting the proposition that procedural flaws “ automatically require a finding of a denial of a FAPE”); Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir.1990) (rejecting an IDEA claim for technical noncompliance with procedural requirements where the alleged violations did not result in a “substantive deprivation” of the student's rights); Burke County Bd. of Educ. v. Denton, 895 F.2d 973, 982

(4th Cir.1990) (refusing to award compensatory education where procedural faults committed by Board did not cause the child to lose any educational opportunity). These claims must be dismissed.

1. Failure to Implement.

Petitioners also allege that the Student was entitled to make-up tutoring and counseling during suspensions. “Failure to implement” claims are actionable if the school district cannot materially implement an IEP. A party alleging such a claim must show more than a de minimis failure and must show substantial or significant portions of the IEP could not be implemented.

Savoy v. District of Columbia, 844 F. Supp.2d 23 (D.D.C. 2012)(holding no failure to implement where District’s school setting provided ten minutes less of specialized instruction per day that was on the IEP); Van Duyn ex rel. Van Duyn v. Baker School Dist. 5J, 502 F.3d 811 (9th Cir.

2007).

Though this case does not involve an IEP, it does involve a promise by the school district to provide the student with tutoring during the Student’s suspension in December, 2022 in January, 2023. The principles established in “failure to implement” cases are therefore applicable here, where the CSE effectively conceded FAPE denial on this claim by acknowledging, in the January meeting, that the Student is entitled to thirty-six hours of tutoring for time when he was suspended earlier in the year. Otherwise, the record does not establish that the student did not receive mandated tutoring services. In regard to the contention that counseling services were not provided to the Student during suspensions, Ms. REDACTED credibly testified that the Student continued to receive counseling during suspensions. I therefore find that Respondent denied the student of FAPE by failing to provide the Student with tutoring hours in the 2022-2023 school year.

1. Relief.

Petitioners are seeking an order directing the school district to keep the Student at REDACTED, premised in part on the notion that his violent and aggressive behavior has decreased since being in the program. However, the record suggests that the Student’s violent and aggressive behavior has, if anything, increased over the last school year. Petitioners stressed that the program is the most consistent placement the Student has ever had, and consistency should be considered in determining appropriate placement for the Student. However, Petitioners are not acknowledging the effect that the Student’s behavior must be having on the Student himself. For instance, on November 3, 2022, the Student had to be physically restrained by school staff to prevent the Student from continuously hitting staff. It is hard to see how the Student could have possibly have just shrugged off this incident and gone back to class after the incident occurred.

Overall, the record suggests that the person who is most affected by the Student’s misbehavior is the Student. In fact, Ms. REDACTEDs testified that the Student’s progress has stalled, and, according to the most recent progress report in the record, the Student demonstrated only “47% success” over a review period. Exh. D-5.

Moreover, Petitioners themselves do not appear to be satisfied with the school.

Petitioners contended that the Student’s lack of progress was a function because of the school's lack of quality. Petitioners contended that behavior plans were not appropriately developed or implemented, that REDACTED and Respondent failed to provide an appropriate “safe space”, that the Student’s safety plan is flawed, and that the staff inappropriately engage the student when he is upset. In their closing argument, Petitioners suggested that the program at REDACTED needed to be changed. But Hearing Officers do not have the authority to require fundamental changes to an entire BOCES program. I therefore find that I must remand this case to the CSE to find a more therapeutic placement for the student. It is noted that, while one can certainly understand Petitioners’ desire to keep the Student nearby, courts will often order a child to be placed outside a school district where the outside placement is deemed appropriate. M.A. v. Voorhees Township Bd. of Educ., 217 F. Supp. 261 (D. N.J. 2002), aff’d, 65 Fed. Appx. 404, 2003 U.S. App. LEXIS 11255 (3d. Cir. 2003)(autistic student directed to be instructed at out-of-district placement); McLaughlin v. Holt Public School Bd. Of Educ., 320 F.3d 663 (6th Cir.

2003)(student with downs syndrome directed to attend school that was further away than local school); Flour Bluff Independent School District v. Katherine M, 91 F.3d 689 (5th Cir.

1996)(deaf student directed to attend school that was further than local school); Poolaw v.

Bishop, 67 F.3d 830 (9th Cir. 1995)(deaf student directed to attend school 280 miles away from home); cf. D.F. v. Western School Corp., 921 F. Supp. 559 (S.D. Ind. 1996)(indicating that the physical location of the school outside the home district adds nothing to the parent’s case.

Until a new placement is found by the CSE, the Student shall remain in his current pendency placement. In determining a new placement for the Student, the CSE shall consider whether the school is too far away, or whether the bus ride would take the Student too much time, as well as New York State law, which requires school districts to provide disabled students with suitable transportation to and from special classes or programs. N.Y. Ed. L. Sect. 4402(4)(a).

The CSE shall also consider whether the Student’s academic and behavior performance at REDACTED has improved during the pendency of this litigation, during which the student has had the benefit of a one-to-one aide in the classroom.

Finally, I will order it that Petitioners receive an authorization for the student to receive thirty-six hours of tutoring by a special education teacher at a reasonable and customary rate in the community. The school district indicated that this relief is not needed because it has already offered the Student tutoring but claims for compensatory education should not be deemed to be moot merely because a school district offers relief after due process complaint is filed.

ORDER

As a result of the foregoing:

• 1. This matter is remanded to the CSE so that it can find the Student a therapeutic placement that better manages the Student’s behaviors. Until such placement is found, the Student shall remain in his current pendency placement. The CSE shall consider whether the proposed school is too far away, or whether the bus ride to and from the school would take the Student too much time. The CSE shall also consider whether the Student’s academic and behavior performance at REDACTED has improved during the pendency of this litigation;
  2. Petitioners shall receive an authorization for the Student to receive thirty-six hours of tutoring by an independent special education teacher at a reasonable and customary rate in the community;
  3. All other requests for relief are denied.

Dated: June 17, 2023

ACRD: June 17, 2023

Michael Lazan

Hearing Officer

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 appeals 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.

District Exhibits

Ex. #	Description	Date	# of Pages
1	Due Process Complaint	1/2/2023 (District date stamp receipt 1/3/2023)	39
2	Answer to Complaint	1/13/2023	6
3	Resolution Meeting Invitation	1/12/2023	2
4	REDACTED 2022-2023 IEP from Annual Review Meeting	4/20/2022	13
4A	REDACTED 2022-2023 IEP	1/9/2023	18
5	BOCES IEP Progress	9/6/2022-	3
	Reports 2021-2022 and	1/11/2023 (2022-
	2022-2023 year-to-date	2023)
		9/1/2021-
		6/30/2022 (2021-2022)
6	BOCES report cards 2021-	9/6/2022-	3
	2022 and 2022-2023 year-to-	11/9/2022 (1st
	date	marking period
		2022-2023
		Progress report-
		10/11/2022
		(2022-2023)
		3/31/2022-
		6/22/2022 (2021-
		2022 4th marking
		period report
		card cumulative)
7	BOCES Functional	3/1/2021 and	14
	Behavioral Assessment	3/8/2021
	(FBA) March 1, 2021 and
	Behavioral Intervention Plan
	(BIP) March 8 2021
8	BOCES Safety Plan REDACTED	9/27/2022	3
9	BOCES Behavioral Data (totals)	2022-2023	1

10	BOCES Behavioral Data Class	2022-2023	3
11	BOCES Escorts and Restraint Data	2022-2023	1
12	BOCES Escort and Restraint Documentation	2022-2023	6
13	Correspondence from REDACTED (BOCES) to REDACTED re REDACTED and REDACTED program	11/4/2022	1
14	BOCES Discipline and Incident Summary and Write Ups REDACTED	2021-2022, Sept 2022	28
15	BOCES Behavior Narrative of Incidents REDACTED	Fall 2022	11
16	BOCES Suspension Notices REDACTED	2021-2022, 2022-2021	30
17	Prior Written Notice of Manifestation Determination	10/19/2022	2
18	Emails between REDACTED, BOCES and REDACTED CSD Staff September 2022- December 2022 2022	9/12/2022- 12/2/2022	42