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CASE NUMBER: 9243968
FINDINGS OF FACT AND DECISION
Case Number: 9243968
Student’s Name: [REDACTED] [REDACTED]
School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: December 19, 2022
Date(s) of Hearing: January 13, 2023
January 19, 2023
January 23, 2023
Actual Record Closed Date: January 26, 2023 (Expedited Case Only)
Date of Decision: January 29, 2023 (Expedited Case Only)
Date of Distribution if Different than Decision Date: N/A
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON January 13, 2023
For the Student:
None
For the Department of Education:
[REDACTED] [REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON January 19, 2023
For the Student:
[REDACTED] [REDACTED], Parent
[REDACTED] [REDACTED], Esq.
For the Department of Education:
[REDACTED] [REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON January 23, 2023
For the Student:
[REDACTED] [REDACTED], Parent
[REDACTED] [REDACTED], Esq.
For the Department of Education:
[REDACTED] [REDACTED], Esq.
On January 11, 2023, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED]. [REDACTED]’s mother requested the hearing on December 19, 2022 to challenge: (1) the manifestation determination review (“MDR”) team’s determination of December 9, 2022; (2) [REDACTED]’s expulsion from school on December 13, 2022; (3) the failure of [REDACTED]’s school to implement his Individualized Education Program (“IEP”); and (4) the failure of [REDACTED]’s school to provide [REDACTED] with appropriate support services. In her hearing request, [REDACTED]’s mother also discusses [REDACTED]’s need for timely evaluations. [REDACTED]’s mother seeks the nullification of the MDR determination, removal of the expulsion from [REDACTED]’s record, [REDACTED]’s return to his prior high school placement until evaluations are completed, a new IEP for [REDACTED], and transfer to another high school (Parent’s Ex. A [hearing request]).
The proceeding was bifurcated.[1] The challenge to the MDR is an expedited disciplinary issue pursuant to 8 N.Y.C.R.R. §201.11(a)(3). This issue was heard and determined pursuant to the timelines set forth in 8 N.Y.C.R.R. §201.11(b). This decision addresses the expedited MDR issue. The non-expedited issues will be heard and determined separately, and a separate written decision will be issued.
The hearing with respect to the expedited issue of the MDR was scheduled for January 13; [REDACTED]’s mother did not appear due to difficulties she experienced with receipt of hearing notices and because she was seeking representation by counsel. The hearing was conducted on January 19 and January 23. [REDACTED]’s mother and counsel for both parties appeared on both dates.
On January 19, I described the procedures for expedited cases, explained how the bifurcation of the expedited and non-expedited matters would proceed, identified which issues set forth in the hearing request were to be expedited and which issues would be addressed in the non-expedited portion of the proceeding, discussed burden of proof and procedural rights, and addressed scheduling. The parties agreed to waive the “five business day” disclosure rule. Tr. 40, 42-43, 48-49.
On January 23, counsel for the Department stated that the Department would “not be defending the MDR determination in this matter.” Tr. 64. Since the Department had the burden of proof on this issue, the result of the Department’s failure to defend the MDR determination was to enter a ruling in [REDACTED]’s parent’s favor with respect to her challenge to the MDR. Tr. 65-68. As a result, this Findings of Fact and Decision focuses on issues of appropriate remedies.
Department Exhibits 1 and 4, and Parent’s Exhibits A through T were offered, and admitted, in evidence.
The record with respect to the expedited issue of the MDR was closed on January 26 upon the receipt by the hearing officer of the transcript of the hearing, and the parties were so informed. The compliance date for the submission of this final written decision on the expedited issue of the MDR is February 6. Appended to the record are a list of exhibits received in evidence and the names of the persons who appeared at the hearing.
[REDACTED]’s mother consented to the hearing proceeding via videoconference and to this decision being transmitted to counsel via email. Tr. 18.
Findings of Fact
- • [REDACTED] is a [REDACTED] year-old young man whose disability, for the purposes of the IDEA, is classified as autism. Ex. 1 at 1.
- • [REDACTED] is a [REDACTED] grade student who, prior to the “expulsion” at referenced in the hearing demand, attended [REDACTED] [REDACTED] [REDACTED] II (“[REDACTED] [REDACTED]”). See Exs. A, J.
- • [REDACTED] has been diagnosed with [REDACTED] [REDACTED] and [REDACTED]. Exs. B, F, G at 3.
- • School personnel at a middle school that [REDACTED] attended prepared a behavior support plan for [REDACTED] in January 2018. Ex. D.
- • The behavior support plan identified [REDACTED]’s “Problem Behaviors” as including “on-going” talking to peers and staff, calling out, talking aloud to himself, walking around the classroom, and touching teachers’ belongings. Ex. D at 1.
- • School personnel at a different middle school that [REDACTED] attended conducted a functional behavioral assessment (“FBA”) of [REDACTED] in October 2018. Ex. C.
- • The FBA identified [REDACTED]’s “Problem Behaviors” as yelling, screaming, “making eyes with his peers,” and making “inappropriate gestures.” Ex. C at 1.
- • In November 2018, [REDACTED]’s mother obtained a BCBA Assessment of [REDACTED]. Ex. F. At the time, [REDACTED] received home-based ABA. Ex. F at 2.
- • The BCBA assessment described [REDACTED]’s aggressive and dangerous behaviors, verbal aggression, perseverative repetitive movements and touching objects, and sensory behaviors. Ex. F at 3-12, 26.
- • The evaluating BCBA recommended that [REDACTED] receive 40 hours per week of direct ABA services (30 hours in school and 10 hour at home) to address [REDACTED]’s behaviors and other “deficits related to his diagnosis.” Ex. F at 28.
- • The CSE conducted an IEP meeting for [REDACTED] on January 30, 2019. Ex. H at 13.
- • The CSE developed an IEP and recommended that [REDACTED] attend an ICT class, receive the related services of counseling (one 40-minute period individually and one 40-minute period per week in a group) and monthly parent training and counseling, and have the support of a 1:1 fulltime behavior support paraprofessional. Ex. H at 10-11.
- • The CSE conducted an IEP meeting for [REDACTED] on December 14, 2021. Ex. 1 at 16.
- • The CSE developed an IEP and recommended that [REDACTED] receive SETSS (one period per week in math class as a direct group service) and counseling (one 40-minute period individually and one 40-minute period per week in a group) and recommended monthly parent training and counseling for [REDACTED]’s mother. Ex. 1 at 11.
- • The IEP states that [REDACTED] is not in need of supports and/or strategies “to address behaviors that impede [his] learning or that of others” and does not need a behavior intervention plan. Ex. 1 at 5.
- • During the 2022-2023 school year, [REDACTED] has been subject to short-term suspensions. Exs. I, J, K, L, P.
- • As a result of an incident underlying the allegations in the hearing demand,[2] the principal of [REDACTED] [REDACTED] informed [REDACTED]’s mother that a superintendent’s hearing for [REDACTED] was scheduled for December 13. Ex. M.
- • The Department of Education scheduled an MDR for [REDACTED] for December 9 and so informed [REDACTED]’s mother in writing, inviting her to the meeting. Ex. N.
- • The MDR was conducted on December 9. The “Team” determined that [REDACTED]’s conduct “was not a result of his disability.” Ex. O [emphasis supplied].
- • By letter dated December 14, the superintendent of [REDACTED] [REDACTED] Charter Schools informed [REDACTED]’s mother that [REDACTED] was expelled from [REDACTED] [REDACTED]. Ex. Q.
- • By email on December 19, the principal of [REDACTED] [REDACTED] informed [REDACTED]’s mother that [REDACTED]’s “alternate instruction” was at a facility located at [REDACTED] Street in Manhattan (the “IAES”). Ex. R; see also Tr. 30, 112-113.
- • The Department had approved an independent educational evaluation (“IEE”) of [REDACTED]; as of the conclusion of the hearing, a neuropsychological evaluation had been conducted on January 17, but the report had not been drafted. Tr. 27-28, 78-
- • [REDACTED] [REDACTED] was [REDACTED]’s placement at the time of his disciplinary removal. Exs. 1, A; see also Tr. 68-69.
- • As of the time of the hearing, there was no indication that the Department was offering an alternative high school placement to which [REDACTED] could return or that there was another high school placement that would accept [REDACTED].[3] Tr. 68.
Conclusions of Law
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).
A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The IDEA, the New York Education Law and the implementing regulations of both statutes set forth specific procedural protections for students with disabilities who are subject to school discipline. See 20 U.S.C. § 1415(k); N.Y. Educ. Law § 4404(4)(b); 34 C.F.R. §§ 300.530-300.537; 8 N.Y.C.R.R. 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 ten consecutive school days; or (2) for a period of ten consecutive days or less if the student is subjected to a series of suspension or removals that constitute a pattern because they cumulate to more than 10 school days in a school year. 8 N.Y.C.R.R. §201.2(e)(1) & (2). State regulations require the CSE to conduct a review of the relationship between the student’s disability and the behavior subject to the disciplinary action no later than ten school days after a decision is made to impose a suspension that constitutes a disciplinary change in placement. 8 N.Y.C.R.R. §201.4(a); Application of a Child with a Disability, Appeal No. 22-120; Application of the Bd. of Educ. of the Ossining U.F.S.D, Appeal No. 18-081. This review is known as a manifestation determination review. 8 N.Y.C.R.R. §201.4(a).
The regulations describe in detail the review the CSE (or “manifestation team”) is to undertake before making a manifestation determination. 8 N.Y.C.R.R. § 201.4(c) & (d). First, the team must review “all relevant information in the student’s file” including the IEP, teacher observations and information from the parent to determine whether “the conduct in question or “the conduct in question was the direct result of the school district’s failure to implement the IEP.”[4] 8 N.Y.C.R.R. § 201.4(c); see also Application of a Student with a Disability, No. 11-037. If either condition is met, the “conduct must be determined to be a manifestation of the student’s disability.” 8 N.Y.C.R.R. §201.4(d)(emphasis added). See also Application of a Student with a Disability, Appeal No. 22-120; Application of a Child with a Disability, Appeal No. 07-123; Application of a Child with a Disability No. 04-107; Application of a Child with a Disability, Appeal No. 04-053.
In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. In this proceeding, as stated above, the Department declined to defend the MDR determination. Since the Department had the burden of proof on this issue, the result of the Department’s failure to defend the MDR determination is a ruling in [REDACTED]’s parent’s favor with respect to her challenge to the MDR.
The next step is to determine the relief that flows from the ruling in [REDACTED]’s parent’s favor. The most appropriate analysis to apply in here is to ask: what should have happened had the MDR team determined that the conduct in the underlying incident was a manifestation of [REDACTED]’s disability? When an MDR team makes a determination that the student’s behavior was a manifestation of the student’s disability, the CSE is required to conduct an FBA and implement a BIP. 8 N.Y.C.R.R. § 201.3(a); Application of a Child with a Disability, No. 04-053. Furthermore, if the team determines that the precipitating behavioral infraction was the direct result of the school district’s failure to implement the IEP, the district must take immediate steps to remedy those deficiencies. 8 N.Y.C.R.R. § 201.4(e); Application of a Student with a Disability, No. 11-037 at p. 8. In addition (except where “special circumstances” defined in 8 N.Y.C.R.R. § 201.7(e) exist), the student must be returned to the “placement from which the student was removed, unless the parent and the school district agree to a change of placement as part of the modification of the behavioral intervention plan.” 8 N.Y.C.R.R. § 201.4(d)(ii).
In the instant case, an extended discussion took place on the record as to relief. In accord with those discussions and the above legal analysis, I will be ordering the following relief in this expedited proceeding. First, the regulations compel [REDACTED]’s return to [REDACTED] [REDACTED]. Second, the Department must conduct an FBA and develop a BIP for [REDACTED].
[REDACTED]’s mother requests that the FBA be conducted by an independent evaluator who is funded by the Department. I must deny this request for two reasons: (a) I interpret the Part 201 regulations as imposing the responsibility for conducting the FBA on the school district; and (b) such relief is prohibited by D.S. v. Trumbull Board of Education, 975 F.3d 152, 162-163 (2d Cir. 2020), in which the Second Department ruled that FBAs are not “comprehensive evaluations” properly subject to an IEE request. At this time, I am ordering the Department to conduct an FBA forthwith and for the CSE to then promptly convene an IEP meeting to consider the FBA and develop a BIP. Ordinarily, I might order a CSE to consider an FBA and develop a BIP only if a BIP is appropriate. Here, the regulations compel that an FBA be conducted AND that a BIP be developed. In the meantime, the Department must implement [REDACTED]’s current IEP.
In the context of considering the FBA and developing the BIP, the CSE should also consider the IEE that was conducted, if it is available at the time of the meeting. Other aspects, if any, pertaining to the consideration of the IEE are not within the confines of this expedited proceeding.
As to [REDACTED]’s mother’s request for the removal of the expulsion from [REDACTED]’s record: I find that I do not have the authority under Part 201 of the Commissioner’s Regulations to consider this request.
For all of the above reasons, it is ORDERED that:
1. The Department of Education failed to defend the December 9, 2022 MDR determination.
2. The Department of Education shall remove [REDACTED] from the current IAES; [REDACTED] [REDACTED] shall reinstate [REDACTED]; and [REDACTED] shall return to [REDACTED] [REDACTED].
3. The Department of Education shall immediately ensure that [REDACTED] [REDACTED] implement the December 14, 2021 IEP.
4. Within fifteen school days of the date of this decision, the CSE shall: (a) conduct an FBA of [REDACTED]; (b) convene and review the FBA and develop a BIP for [REDACTED]; and (c) consider behavior intervention services and modifications for [REDACTED].
5. The Department may consider, if available, the IEE.
6. A pre-hearing conference has been scheduled for February 1, 2023 at 9:00 A.M. with respect to the non-expedited issues in this proceeding.
Dated: January 29, 2023
___________________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer (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.
DOCUMENTATION ENTERED INTO THE RECORD
DEPARTMENT OF EDUCATION EXHIBITS
#
Document Description
Date
Page Count
1
IEP
12/14/2021
18
4
Incident Report
12/01/2022
2
PARENT’S EXHIBITS
EX
DATE
NAME OF DOCUMENT
Pgs.
A 12/19/2022 Complaint 9243968 4
B 11/16/2018 Psychologist’s Letter of Diagnoses 1
C 10/24/2018 DOE Functional Behavioral Assessment 5
D 01/30/2018 DOE Behavioral Support Plan 2
E 01/18/2019 Counseling Report 2
F 11-2018 Board Certified Behavioral Analyst Report 28
G 04/08/2020 Counseling Report 7
H 01/13/2019 Individualized Education Program and Prior Written Notice 17
I 09/07/2022 – 11/15/2022 Incident Reports 12
J 11/21/2022 Out of School (OOS) Suspension Letter 2
K 12/01/2022 Incident Report 3
L 12/02/2022 OOS Suspension Letter 2
M 12/05/2022 Notice of Superintendent Hearing for 12/13/2022 2
N 12/06/2022 Notice of Manifestation Determination Review (MDR) for 12/09/2022 2
O 12/09/2022 Notice of MDR Results 1
P 12/12/2022 OOS Letter 2
Q 12/14/2022 Notice of Guilt Determination and Penalty Determination of Superintendent Hearing 1
R 12/19/2022 Email from [REDACTED] Identifying Interim Alternative Education Setting (IAES) 1 S 2022-2023 [REDACTED] [REDACTED] Progress Report 1 T 2022-2023 [REDACTED] [REDACTED] Handbook 76 Footnotes
[1] See State Education Department Memorandum, Changes in the Impartial Hearing Reporting System, August 2011. See also Application of a Student with a Disability, Appeal No. 22-120 at 7-8.
[2] I use language such as “underlying the allegations in hearing demand” because this hearing does not concern, nor make any determinations with respect to, whether or not the referenced incidents occurred or whether or not [REDACTED] was the perpetrator.
[3] [REDACTED]’s mother proposed that I order the Department to fund a placement for [REDACTED] at [REDACTED] [REDACTED], a non-approved non-public school placement. Tr. 75-76. This is not an option that is available in the context of this expedited proceeding. See 20 U.S.C. § 1415(k).
[4] Neither the regulation nor the relevant statutory provisions address whether the IEP in effect is appropriate for the student. See Application of a Student with a Disability, No. 11-037 at p. 7 n.15.